In theft cases and other cases where the defendant caused an economic loss to the victim, the judge will often put the defendant on probation and order him/her to pay restitution over time. Restitution is the money the defendant must pay back to the victim for the loss caused by the defendant. If the defendant fails to pay the restitution in full, and/or fails to comply with any other term of probation, the judge can issue a warrant for the arrest of the defendant for a probation violation. After the defendant’s arrest on the violation of probation warrant, there may be a probation violation hearing at which the state has the burden of proving that the defendant did not comply with the terms of probation. The burden of proof on the state is much lower in a probation violation hearing than it is for a regular criminal case.
If the alleged probation violation deals with failure to pay restitution, the judge cannot find a violation of probation based solely on the fact that the defendant failed to pay restitution. In other words, failing to pay restitution, by itself, is not a violation of probation.
Under the United States Constitution, a person is not supposed to be sentenced to jail or prison due to an inability to pay. Therefore, in order for a judge to find that a person has violated probation for failure to pay restitution, the state must prove that the person had the ability to pay and willingly failed to do so- merely proving to the judge that the defendant was required to pay restitution and did not is not sufficient. It is the state’s burden to prove this essential element. If the state does present sufficient evidence on this element, the defendant still has a right to show that he/she did not have the ability to pay and/or did not willingly fail to pay. It is never the defendant’s initial burden to prove that he/she did not have the ability to pay restitution to avoid a probation violation.