Imprisonment for Debt

A felony judge told me the other day that one of the factors she considers in deciding whether to give a person probation is whether the person can pay whatever restitution might be due to the complaining witness.

The Texas Constitution forbids imprisonment for debt. I pointed out to the judge that putting someone in prison because he couldn’t pay restitution would violate the Texas Constitution. “It’s just one factor I consider,” she said. Well, sure, but if there are two identically situated people who differ only in their ability to pay restitution, the one who is being imprisoned because he fails the restitution test is being imprisoned for debt. “There are never two identically situated people, Mr. Bennett,” she said. Of course there aren’t, but the point is that if financial status is a factor, then a person is liable to be imprisoned because of his inability to pay. This is imprisonment for debt.

Three thoughts: first, in a jury punishment case, it ought to be possible to exclude any evidence of the defendant’s inability to pay restitution because a defendant’s inability to pay is not relevant in light of the prohibition of imprisonment for debt.

Second, the State should not include in its goals the aim of collecting debts for individuals and companies. If a person is placed on probation and happens to have the money to pay the debt, then it doesn’t cost anybody much for the government to be an intermediary (the probationer will be paying monthly fines and fees to the government anyway). But an accused’s ability to pay restitution should not drive either plea negotiations or sentencing.

Third, a Texas district court judge should know better. I shouldn’t have to point out to her that you can’t constitutionally imprison a guy who can’t pay restitution if you would have put him on probation otherwise.

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