Thursday, November 3, 2011

Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt