Restitution Plans Must Be on Ability to Pay

(CN) - Restitution payment schedules must takes into account a convicted criminal's ability to pay, the 9th Circuit ruled Tuesday, reversing an order for the immediate payment of nearly $30,000 to victims of a man serving 25 years for armed bank robbery.

The federal appeals court in San Francisco found that Jack Ward, who was convicted in 2002 in the Eastern District of California on nine counts of armed bank robbery, had been improperly ordered to pay $1,000 to a Crime Victim Fund Assessment and $27,885 in restitution to his victims.

Ward had argued in a habeas petition that the District Court's restitution order had effectively forced him to participate in an otherwise voluntary work program and had improperly passed responsibility to the Bureau of Prisons in Arizona, where Ward is doing his time. From Phoenix, U.S. District Judge G. Murray Snow disagreed, but a three-judge panel of 9th Circuit judges reversed 2-1 on appeal.

"We find that a sentencing court must consider the defendant's financial resources in setting a restitution payment schedule, and, if the defendant is unable to pay restitution immediately, the court cannot simply order 'immediate' repayment and leave the details of the actual payment schedule to the BOP or probation," wrote Senior U.S. District Judge Jed Rakoff, sitting on the panel by designation from the U.S. District Court for Southern New York. "Applying that standard to this case, we find that the restitution order against petitioner Ward impermissibly delegates to the BOP the court's obligation to set a payment schedule, and therefore, that the BOP lacks the authority to collect restitution payments from the petitioner."

Judge J. Clifford Wallace argued in dissent that the panel should not have considered the issue in the first place.

"Ward waived that issue by failing to raise it in a direct appeal from his sentence," Wallace wrote. "Furthermore, he did not argue either to the district court or to us that the sentencing court failed to consider his financial condition."

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