A person who is on probation or parole and owes fines, costs, or restitution is often unable to pay the entire amount during that period of court supervision. In most courts, this is not a problem — the person's supervision ends, and the court continues to collect the court debt even after that point. But in a handful of counties, including Allegheny and Delaware counties, the courts and district attorneys have taken the position that individuals must remain under court supervision until the entire amount is paid, even if it is tens of thousands of dollars that will take a lifetime to pay. These practices trapped indigent and low income Pennsylvanians on indefinite court supervision, simply because they are too poor to pay the entire amount at once.
Keeping a person on probation or parole because the person cannot pay violates state law and the Constitution. Since Commonwealth v. Dorsey in 1984, a consistent string of Pennsylvania appellate decisions have explained that failure to pay constitutes a technical probation or parole violation only if the court finds that the defendant has willfully refused to pay. As a result, any time a court "extends" a period of supervision by revoking supervision and imposing additional supervision is always illegal unless the evidence presented shows that the defendant willfully refused to pay and the court makes that finding on the record. To do otherwise is to punish a person for poverty by keeping the person on probation or parole.
To put an end to the ongoing unlawful probation and parole practices in these counties, the ACLU of Pennsylvania has worked with defense counsel to litigate these claims and have Pennsylvania's courts once again reiterate that keeping an impoverished person on court supervision for nonpayment is illegal. Our victories in these cases have already started to change court practices.
- Commonwealth v. Bates - ongoing case out of Delaware County
- Mr. Bates was sentenced in 2012 to two years of incarceration with immediate parole for theft. Although the statutory maximum sentence is five years, as of 2023, he was still trapped on parole for eleven years because of his inability to pay $5,600 in restitution in full during this time. The court had revoked his parole six times for nonpayment, and it did not consider his ability to pay even a single time.
- Following our victory in the Marshall decision, the Delaware County District Attorney changed its position — it now agrees that the position it had taken "was mistaken" and that "precedent requires a finding of willfulness prior to revoking parole." As a result, "the Commonwealth does not oppose remanding defendant's case for the trial court to assess his ability to pay."
- Commonwealth v. Marshall - 2023 victory out of Allegheny County
- In his five years on probation, Mr. Marshall paid thousands of dollars towards restitution for theft, but he could not afford to pay the full $68,000 in that time. Despite his payments and request not to spend more time on probation, the trial court revoked his probation and gave him an additional five years of probation, solely because he had been unable to pay the full amount of restitution. The court never considered his financial resources or ability to pay.
- The Superior Court ruled that this was illegal, based on a series of cases stretching from 1984 through 2009: "A court cannot revoke probation or parole for non-payment of fines, costs or restitution absent a determination that the failure to pay is willful or that the probationer made insufficient bona fide efforts to acquire the resources to pay and is not merely the result of inability to pay." As it explained, an outcome that punishes a person for not having enough money "would violate the fundamental fairness guaranteed to defendants under the Fourteenth Amendment." It sent the case back to the trial court to determine if Mr. Marshall actually had the ability to pay $68,000 while he was on probation. If not, his probation must end and the restitution would be collected through civil means.
- Commonwealth v. Bolds - 2021 victory out of Delaware County
- Ms. Bolds could not afford to pay $10,000 in restitution during her two years of parole, so the court repeatedly revoked her parole and sentenced her to new parole — four times, trapping or on parole for seven years. The court never considered her ability to pay that restitution, and she was denied the right to a lawyer in several of those hearings.
- The Superior Court freed Ms. Bolds of this repeated cycle of new parole because she had been repeatedly subjected to illegal parole revocations without consideration of her ability to pay and because a civil judgment for the restitution had already been entered, meaning the restitution could be collected without the need for more court supervision. While a win for Ms. Bolds, the decision did not reach the constitutional issue that the Marshall decision eventually did.
