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Massachusetts criminal defendants are often required to pay restitution as part of their probation.

The restitution amount is determined by the trial judge. In making his determination, the judge must consider (1) the economic harm incurred by the victim and (2) the defendant’s ability to pay.

According to the SJC,

The amount of restitution is not merely the measure of the value of the goods and money stolen from the victim by the defendant; . . . the judge must also decide the amount that the defendant is able to pay and how such payment is to be made.

Commonwealth v. Henry, 475 Mass. 117, 120-121 (2016).

These matters must be determined through an evidentiary hearing. At the hearing, prosecutors will have the burden of proving (by a preponderance of the evidence) the financial harm suffered by the alleged victim.

Likewise, the defendant must prove his or her financial hardship by a preponderance of the evidence:

Where a defendant claims that he or she is unable to pay the full amount of the victim’s economic loss, the defendant bears the burden of proving an inability to pay….[R]egarding restitution, “the defendant must establish her financial resources and needs by a preponderance of the evidence”

Id. at page 121.

The defendant may also challenge the prosecutor’s claims by using expert testimony or any other relevant evidence.

If, after the hearing, the judge concludes that restitution is appropriate, he must impose a monthly payment that will not create a financial hardship for the defendant.

Additionally, the length of the defendant’s probation cannot be extended to provide for additional restitution payments.

equal justice means that the length of probation supervision imposed at the time of sentence should not be affected by the financial means of the defendant or the ability of the defendant to pay restitution.

Id. at page 124.

Therefore, the length of probation must be set before restitution can be considered:

To ensure that a defendant does not face a longer probationary period because of his or her limited means, the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public.

Id.