Our court also has noted that "a defendant's ability to pay restitution is a relevant factor for a district court to consider in determining whether to order restitution and the proper amount." That's consistent not only with Schulze, but also with Goeller, where the Kansas Supreme Court noted that it was the defendant's responsibility to come forward with evidence of his inability to pay. If a defendant's inability to pay wasn't intended to be a compelling circumstance that could justify excusing or reducing restitution payments, then the Supreme Court would not have explained that the defendant is responsible for introducing such evidence. If the ability to pay restitution didn't impact restitution, then the evidence Goeller was criticized for not introducing would not even have been relevant.
We do not suggest that poverty alone is always a compelling circumstance that should relieve a defendant of the obligation to pay restitution, but poverty alone can justify a decision to not impose restitution or to reduce it. In assuming that it could not, the district court made an error of law and thus abused its discretion by not considering whether Herron's poverty made the amount of restitution she was ordered to pay unworkable.The COA went on to analyze whether requiring the district court abused its discretion by holding that $6,864 restitution in this case was workable:
Herron's case is similar to Burke or Orcutt. Like in Burke, if Herron paid the $10 per month the State suggested, she would be making payments for 57 years—an inordinately long time compared to her 18-month probation. Herron was 33 years old at the time the court ordered restitution. While her probation could be extended (giving the court supervisory power over her until payments were made), it's not reasonable to keep someone under court supervision to make restitution payments for 57 years. By contrast, if Herron attempted to pay the restitution she owed during her 18-month probation, she would be paying $381.34 per month, which would constitute more than half of her total income—obviously an unworkable situation at her income level.
[Update: the state filed a PR on November 20, 2014.]
[Further update: the KSC denied the state's PR and the mandate issued on January 16, 2015.]