This is America, right? We have a Constitution, right?
Well, there’s lots of ‘words’ in our Constitution which, apparently, some judges haven’t taken the time to read. Bottom line, our Constitution (Federal and State, for those keeping score) bans imprisonment for debt. Even so, some Orlando probationers find themselves unable to afford the massive amounts of fees, fines, court costs, restitution, classes, surcharges, counseling, and so forth and so on. We all know what happens when a probationer cannot afford to do any of the above listed items–a violation warrant is filed by the probation officer.
On the technical side of things, we have Florida Statute section 948.06(5), which sets up the debtors prison scenario by declaring that, “In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.”
See the problem here? The probationer carries the burden of proving his poverty, rather than the State. In a Violation of Probation case, it is the state that is bringing a lawsuit against the probationer for failing to pay something–so it should be the state’s burden to prove such. But, that’s not so, due to the ‘burden shifting’ found in Florida law, under section 948.06(5) (highlighted above).
Can this be fixed? Yes, it has been fixed. Our Florida Supreme Court struck down this law as unconstitutional in Del Valle v. State, 80 So.3d 999 (Fla. 2011). Del Valle was charged and convicted of possession of cocaine, and a subsequent charge of grand theft. As a condition of probation he was to pay $1,809 in restitution at a rate of $80 per month, plus another $25 per month to probation for supervision.
Probation violated Del Valle after he fell several months behind (actually, $1,040 in arrears on restitution alone). The violation report indicated that Del Valle was unemployed. At his hearing, two probation officers testified as to what he owed, but the defense didn’t call any witnesses to explain the underlying reasons for non-payment. The court found a violation, but reinstated his probation. Del Valle appealed, arguing that the Equal Protection and Due Process Clauses of the United States Constitution do not allow an indigent probationer to be incarcerated based solely upon his inability to pay (the Florida Constitution says about the same thing). Florida’s Supreme Court overturned Del Valle’s violation of probation, in part because financial violations require the court to investigate the reasons for failing to pay, and the willfulness of such inability to pay (for example, did the probationer turn down jobs and cause his inability to pay?). Basically, there must be a finding that the probation had the ability to pay–but willfully refused to do so. But the court found even more problems lurking.
The conflict involves the “willfulness” of a violation of probation. It is the State’s burden to prove the probationer willfully violated, yet the statute above seems to indicate it is the probationer’s responsibility to prove he couldn’t afford such. Which is it? Well, the court found that shifting the burden to the probation is fine, but only under two conditions. First, the state must first produce evidence of an inability to pay. Second, the burden will then shift to the probationer, but not to the level of “clear and convincing evidence”, as this is seen as too high of a burden.