Commonwealth v. Henry
475 Mass. 117 (2016)
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Rule of Law:
When ordering restitution as a condition of probation, a judge must consider the defendant's ability to pay and may not impose or extend probation solely due to the defendant's indigency. For retail theft, the victim's economic loss is the replacement (wholesale) value of the goods, unless the prosecution proves by a preponderance of the evidence that the items would otherwise have been sold, in which case the retail value is the proper measure of loss.
Facts:
- Casandra Henry was employed as a cashier at a Walmart department store in Salem for nearly twelve years.
- Between July and September 2013, Henry engaged in "free-bagging," a practice where she placed store items into bags for certain customers without scanning them at the cash register.
- These customers, who were friends of Henry, received the items without paying for them.
- The total retail value of the goods stolen through this scheme was $5,256.10.
- Walmart terminated Henry's employment in September 2013.
- At the time of her restitution hearing, Henry was unemployed, had no income or government assistance, had been evicted from her apartment, and was living with someone without paying rent.
Procedural Posture:
- A criminal complaint was filed against Casandra Henry in the Salem Division of the District Court Department for larceny over $250.
- Henry admitted to sufficient facts to warrant a guilty finding, and the judge continued the case without a finding for eighteen months, placing her on administrative probation.
- At an initial restitution hearing, a judge ordered Henry to pay $5,256.10 to Walmart.
- Henry filed a motion to revise and revoke the restitution order, which a judge allowed.
- A new evidentiary hearing was held before a different judge, who again ordered restitution in the amount of $5,256, representing the retail value of the stolen goods.
- Henry appealed this order, and the Supreme Judicial Court of Massachusetts granted her application for direct appellate review.
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Issue:
When ordering restitution as a condition of probation for retail theft, must a judge consider the defendant's ability to pay, and is the proper measure of the victim's loss the retail price or the replacement cost of the stolen goods?
Opinions:
Majority - Gants, C.J.
Yes, a judge must consider a defendant's ability to pay, and the proper measure of loss depends on the circumstances. A judge must determine the amount a defendant is able to pay during the probationary period and may not order restitution exceeding that amount. To do otherwise would punish a defendant for their poverty, as failure to pay what one cannot afford is not a wilful violation of probation. Extending probation for inability to pay is also an impermissible punishment based on poverty. Regarding the measure of loss, restitution is limited to the victim's actual economic loss. For a retailer, this is typically the replacement (wholesale) cost. However, if the Commonwealth can prove that the stolen items would have been sold but for the theft—as could be inferred here, since the items were at the checkout counter—then the retail price is the appropriate measure of actual loss because it includes the lost profit from that specific transaction.
Concurring - Cordy, J.
Yes, a judge must consider the defendant's ability to pay restitution. However, the economic loss from retail theft should be presumed to be the retail price of the goods. The majority's approach places an unnecessary burden on retail victims to prove that the specific items would have been sold. In the ordinary case of retail theft, the retail value is the most straightforward and appropriate measure of the victim's loss, and the cases cited by the majority to support its replacement-value rule involved unusual circumstances not present here.
Analysis:
This decision establishes a mandatory framework for restitution orders in Massachusetts, cementing the principle that a defendant's ability to pay is a critical, not optional, consideration. By prohibiting the extension of probation solely for indigency, the court prevents the criminal justice system from creating a two-tiered punishment system based on wealth. The ruling on valuation provides a nuanced standard, moving away from a rigid rule and instead focusing on the concept of 'actual economic loss,' which protects victims from uncompensated losses while preventing them from receiving a windfall (i.e., profits from a sale that never would have happened). This case will require lower courts to conduct more thorough evidentiary hearings on restitution, focusing on both the defendant's financial reality and the specific circumstances of the loss.
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