With just days to go before the end of her 10-year probation sentence in an embezzlement case, Wendy Crear had paid approximately $10,000 of the $145,849 in restitution that a judge had ordered back in 2009. 

Crear, 50, of Gloucester, pleaded guilty in 2009 to the theft of funds from her then-employer, Gloucester developer Mac Bell, according to court records. She had been working as a bookkeeper when she and her husband, Richard, a maintenance worker for Bell, were charged with stealing from him. 

The sentence of probation and monthly restitution payments of at least $65 was the result of a plea agreement between Crear's lawyer and the district attorney. 

Crear subsequently bumped up those monthly payments to $100. That still didn't come close to repaying the debt in the 120 months allotted, but it's what she could afford on an income of $12 an hour working part-time, her probation officer determined. 

On Wednesday, Bell became the latest financial crime victim to learn about a 2016 Supreme Judicial Court decision that, in the words of Salem Superior Court Judge Jeffrey Karp, held that "you can't get blood out of a stone." 

It was the case of Commonwealth vs. Henry, a case involving a Salem woman who was found guilty of "free bagging" items — putting them into bags without ringing them up — for her church friends while working as a cashier at the Salem Walmart. 

Henry, unable to find new employment as a result of her conviction, had struggled to keep up with restitution payments to the retail chain, only to repeatedly fall behind. Judges kept extending her probation to give her time to pay the $5,200.

But in its 2016 decision in her appeal, the SJC concluded that ordering a restitution amount that a defendant cannot afford is akin to punishing someone for being poor, and dooms indigent offenders to a disproportionate risk of being incarcerated due to their inability to make payments. 

"Burdening a defendant with these risks by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a criminal defendant should not face additional punishment solely because of his or her poverty," Chief Justice Ralph Gants wrote in the 2016 ruling.

Courts are now required to take into account a defendant's ability to pay restitution. 

But the ruling also applied to cases where restitution had already been ordered, like Crear's.

And it applied not only in relatively modest cases like Henry's but to to ones with major financial losses, like the Crear case and numerous others. 

In 2017, the Times' sister paper, The Salem News, reported on a growing trend in white-collar cases of using the promise of restitution as leverage not only to avoid jail sentences but to avoid conviction altogether, with some judges even agreeing to continue cases without a finding in order to secure guaranteed restitution for victims. 

It was up to Karp to break the news to Bell — and explain the limits of his authority. 

Bell pleaded with the judge, describing how his small family-operated business is still responsible for making payments on development loans that, he said, Crear stole. He said he relies on the $100 a month to help offset some of that cost. 

"My responsibility is to pay the bank," Bell said. He said he saw "no conceivable reason" to discontinue her payments. 

"There is a conceivable reason," Karp told Bell during Wednesday's hearing. "The law prohibits me from extending her probation solely for the payment of restitution."

And in criminal court, defendants are only under the court's jurisdiction for as long as they are on probation or serving a sentence. 

The judge noted that he understood Bell's frustration. 

It appeared that Bell had also pursued a civil case against Crear, winning a court judgment against her and later obtaining an order allowing him to collect on that judgment, which he mentioned to the judge. 

Karp told Bell that the civil judgment put him "one step ahead" of most victims, and suggested that he could pursue his money through civil proceedings. 

Court records, however, show that the judgment was discharged as part of a 2011 bankruptcy filing by Crear and her husband. 

Karp also took the unusual step of questioning Crear under oath, in a public court session, as to whether the income and assets she had reported during a financial evaluation by the probation officer were accurate. She said they were. 

She said the only other bank account she has access to is her college-age daughter's account at a Florida bank, where she deposits child support payments for her daughter to use.  

Crear's probation is scheduled to conclude on Monday. 

Courts reporter Julie Manganis can be reached at 978-338-2521, jmanganis@gloucestertimes.com or on Twitter at @SNJulieManganis. 

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