SALEM — Kim Henry was working as a cashier at the Salem Wal-Mart when some of her friends from church started coming into the store, she told police.
The other women, one of them in her 60s, came several times a week over the course of three years, and during each of those visits, Henry later admitted, she would “free bag” some of the items in their shopping carts — putting them into the bag without ringing them up.
But does the punishment she later received, including an order that she pay $5,200 in restitution, violate her rights to due process and equal protection under the law by “punishing poverty,” as her attorney and the Massachusetts chapter of the American Civil Liberties Union contend?
Or is it simply holding Henry responsible for her crimes, and for holding up her end of an agreement to pay restitution, as prosecutors argue?
That’s one of the issues the state’s Supreme Judicial Court will consider Monday when they hear arguments in Henry’s appeal, which also contends that courts should require restitution only for the cost of the item to the retailer, not the full retail price.
Most of the items Henry failed to ring up were inexpensive things like children’s clothing or toiletries, but there were also more costly items, such as a paper shredder, a DVD player, and kitchen appliances.
And then there was the $700 Samsung Galaxy phone, which is how she got caught in September 2013. Store security spotted her taking the phone from a secure area and then putting it into a bag for someone who hadn’t paid.
Henry said “she did this because she is the type of person that wants people to like her,” Salem police later wrote in a report. “She could not tell them no.”
She said she tried to dissuade them from coming back by lying to them about where the store’s security cameras were aimed.
Still, Henry also told police that the women gave her money from time to time, which she said she used to pay her rent and utility bills.
Setting conditions
Henry, 53, of Lynn, was charged with larceny and later admitted to sufficient facts in the case. Salem District Court Judge Mary McCabe continued the case without a finding for 18 months, telling her it would be dismissed if she stayed out of further trouble and paid restitution. Henry agreed to those conditions.
The restitution amount was set a few weeks later after a brief hearing, and Henry again agreed to pay it.
A few weeks after that, however, Henry and her public defender, Benjamin Wittwer, appealed the amount, saying she couldn’t afford it and that it was more than the items were worth.
Judge Michael Lauranzano denied the appeal after a hearing, where Henry and a store “loss prevention” manager testified.
“By ordering an indigent defendant to pay restitution beyond what she can afford, a sentencing court imposes an impossible and therefore purposeless condition,” Massachusetts ACLU attorneys Matthew Segal and Jesse Rossman wrote in a friend of the court brief.
The order of restitution “dooms” Henry to failure and, possibly, additional punishment, they contend.
The judge, argues Henry’s lawyer, Rebecca Kiley, should have considered Henry’s poverty when setting the restitution, but instead “required her to do the impossible.”
As a result of her thefts, Henry lost the job she’d held for 12 years and, as of the time of the hearing, had been unable to get a new one. She was also under an order by the state to repay several months of unemployment compensation she’d initially been given after her firing. She also lost her apartment and was staying with friends, essentially making her homeless.
Blood out of a stone?
Kiley, a lawyer with the state’s public defender office, noted in her brief that Lauranzano acknowledged that “as far as the ability to pay, you can’t get blood out of a stone, I understand that.”
“I don’t know whether she can get a job somewhere at Dunkin’ Donuts and pay it off that way?” Lauranzano suggested during the hearing, according to a transcript. “I mean, it’s a sad case. I’m not sitting here feeling great about this, believe me. I feel terrible.”
Kiley suggested that the judge then proceeded to ignore Henry’s financial situation.
Prosecutors point out, however, that after she failed to make payments for a while, her probation was extended and Henry is now regularly paying $30 a month (the most recent payment was made on Wednesday, court records show). That shows an ability to pay something, they argue.
The judge also waived the regular $50-a-month probation fee, as well as the $150 fee for her court-appointed lawyer.
“The defendant has a lawful obligation, which ought to be enforced by the courts, to abide by the deal she made,” assistant district attorney Kenneth Steinfield argued in his brief. “She should not be permitted to obtain a favorable disposition — a plea bargain — including restitution ... and then later argue that her inability to pay requires she receive an even more favorable disposition with no restitution at all.”
Steinfield argued in his brief that the judge did take Henry’s financial situation into account, and that while Henry might have been unable to pay at the time of the hearing, that situation could change during the time she’s on probation.
And should she again stop making payments, Steinfield said, she will have another opportunity to argue her case for waiving the balance of her restitution.
Retail or wholesale?
Henry’s lawyers are also arguing that the restitution amount should have been based on the store’s wholesale cost of the items, not the retail price.
“The judge awarded Wal-Mart the lost profits on every one of the dozens of fungible, mass-produced items ‘free-bagged’ by Ms. Henry,” Kiley argued. She contends that there’s no proof that Wal-Mart would have sold each of those items at the full retail price, so Henry should pay only the cost the store paid for the items.
But prosecutors disagree, arguing that the store is entitled to recover as much of its economic losses as possible, including any profit that would have been made on the items had they been sold.
As for the other women who were involved in the scheme, court records show that two of them were charged as well.
But the cases against both Angela Satterwhite, 41, of Beverly and Mattie Tyler, 64, of Lynn were dismissed by a judge for lack of prosecution.
The Essex District Attorney’s office was unable to prosecute the case because Henry, who would have been the key witness against them, decided to invoke her Fifth Amendment right against self-incrimination and refused to testify, according to the dockets in each case.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.
