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Montana bill would curb courts’ use of ability-to-pay to deny restitution to victims
Summary
Sponsor Rep. Bill Mercer said HB 578 would reverse a 2021 Montana Supreme Court ruling and prevent courts from waiving restitution at sentencing solely on defendants’ present inability to pay; opponents including the ACLU and Catalyst Montana warned the change could produce uncollectible debt and worsen supervision outcomes.
Rep. Bill Mercer (House District 52) told the House Judiciary Committee Tuesday that House Bill 578 aims to overturn a 2021 Montana Supreme Court decision he called Lodol and to restore the legislature’s earlier mandate that restitution generally be imposed when a victim has suffered a loss. Mercer said the bill would stop courts from permanently waiving restitution at the time of sentencing and instead allow victims an opportunity to recover over time.
"What this bill is focusing on is ensuring that you can't, if you don't have the ability to recover at the time of the sentencing, get your restitution obligation waived at the time of sentencing," Mercer said, arguing that doing so leaves victims "completely out of the ability to recover." He pointed the committee to language in the bill that limits a defendant’s ability to seek elimination of restitution during the first year after sentencing.
Opponents said the change risks imposing unpayable obligations on people in deep poverty and could lead to revocations of probation and renewed incarceration for nonpayment. Henry Seaton of the ACLU of Montana said courts must balance victim recovery with realistic payment prospects.
"Ignoring a person's ability to pay sets them up for failure, leading to unpayable debt, prolonged court supervision, and even incarceration for nonpayment," Seaton said, urging the committee to oppose the bill.
Nicole Gomez, director of the Justice Initiative at Catalyst Montana, spoke to the practical consequences of assigning restitution without considering a defendant’s ability to pay, including impacts on employment, housing and credit.
Committee members asked detailed questions about the L'Odahl fact pattern cited in the bill and whether statutes creating subrogation rights for insurers remain unchanged. Representative Staffman pressed the sponsor on whether courts today must consider ability to pay; Mercer said the bill's purpose is to narrow the window for waiving restitution at sentencing while preserving victims’ chance to recover over time.
The hearing closed with Mercer asking for favorable consideration.
Next steps: HB 578 will remain in committee for further consideration and potential amendment following the hearing; no committee vote occurred during the hearing.
