Ability to Pay

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State Statute Description/Statute Name Statutory language Level of offense Definition of ability to pay Timeline Burden of proof Method of determination Mandatory Remedies if unable to pay
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California Cal. Veh. Code § 14601.5(e) Driving with suspended license
In imposing the minimum fine required by subdivision (d), the court shall take into consideration the defendant's ability to pay the fine and may, in the interest of justice, and
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for reasons stated in the record, reduce the amount of that minimum fine to less than the amount otherwise imposed.
Traffic

NA

Before imposition of fine or fee Not provided for Not provided for Yes

Court may waive or reduce fine

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Louisiana LA Rev Stat § 15:175 Proceedings to determine indigency
A.(1)(a) A preliminary inquiry and determination of indigency of any accused person shall be made by the court not later than arraignment and such determination may be reviewed by the
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court at any other stage of the proceedings. (b) A person will be deemed "indigent" who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own. "Substantial financial hardship" is presumptively determined to include all defendants who receive public assistance, such as Food Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance, resides in public housing, or earns less than two hundred percent of the Federal Poverty Guideline. A defendant is presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is housed in a mental health facility. (c) Defendants not falling below the presumptive threshold will be subjected to a more rigorous screening process to determine if their particular circumstances, including seriousness of the charges being faced, monthly expenses, local private counsel rates, would result in a "substantial hardship" were they to seek to retain private counsel. (d) If the court makes the preliminary determination that the accused is or may be indigent, the court shall require the accused to make application to the district public defender office or an attorney appointed or under contract to provide indigent defender services, who shall inquire further into the accused's economic status and, upon determining that the accused is indigent, shall file a certification thereof, in such form as the court may require and without paying costs in advance, in the record of the proceeding or enroll as counsel. (e) The accused shall be responsible for applying for indigent defense counsel and for establishing his indigency and entitlement to appointment of counsel. Any oral or written statements made by the accused in or for use in the criminal proceeding and material to the issue of his indigency shall be made under oath or an equivalent affirmation. (f) An accused person or, if applicable, a parent or legal guardian of an accused minor or an accused adult person who is claimed as a dependent on the federal income tax submission of his parent or legal guardian, who makes application to the district office certifying that he is financially unable to employ counsel and requesting representation by indigent defense counsel or conflict counsel, shall pay a nonrefundable application fee of forty dollars to the district office or its designee, which fee shall be in addition to all other fees or costs lawfully imposed. If the board or other appropriate official determines that the person does not have the financial resources to pay the application fee based upon the financial information submitted, the fee may be waived or reduced. An accused who is found to be indigent may not be refused counsel for failure to pay the application fee. (g) The proceeds shall be deposited to the judicial district indigent defender fund in the judicial district in which the application was made. (h) The funds collected pursuant to this Section and all interest or other income earned from the investment of such funds shall be used and administered by each district public defender. (i) The district public defender shall maintain a record of all persons applying for representation and the disposition of the application and shall provide this information to the board on a monthly basis as well as reporting the amount of funds collected or waived. (2) The district public defender or his assistants or an attorney providing indigent defender services pursuant to a contract with the board shall be allowed to summon witnesses to testify before the court concerning the financial ability of any accused person to employ counsel for his defense. (3) Failure of the judge to comply with provisions of this Section shall result in deduction of reasonable criminal defense costs from the Judicial Expense Fund. B.(1) In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider whether the person is a needy person and the extent of his ability to pay. The court may consider such factors as income or funds from employment or any other source, including public assistance, to which the accused is entitled, property owned by the accused or in which he has an economic interest, outstanding obligations, the number and ages of dependents, employment and job training history, and level of education. (2) Release on bail alone shall not disqualify a person for appointment of counsel. In each case, the person subject to the penalty of perjury shall certify in writing such material factors relating to his ability to pay as the court prescribes. C. Nothing in this Chapter shall prevent a criminal defendant from obtaining representation through the board at no charge.
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A person will be deemed "indigent" who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own. "Substantial financial

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hardship" is presumptively determined to include all defendants who receive public assistance, such as Food Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance, resides in public housing, or earns less than two hundred percent of the Federal Poverty Guideline. A defendant is presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is housed in a mental health facility.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Indigent defendant is assigned a public defender after paying $40

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California Cal. Pen. Code § 987.5(b) Of the Arraignment of the Defendant: Registration fee for defendant represented by appointed counsel; Inability to pay; Ordinance establishing fee

(b) At the time of appointment of counsel by the court, or upon commencement of representation by the public defender, if prior to court appointment, the defendant shall be asked if

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he or she is financially able to pay the registration fee or any portion thereof. If the defendant indicates that he or she is able to pay the fee or a portion thereof, the court or public defender shall make an assessment in accordance with ability to pay. No fee shall be assessed against any defendant who asserts that he or she is unable to pay the fee or any portion thereof. No other inquiry concerning the defendant’s ability to pay shall be made until proceedings are held pursuant to Section 987.8.

Felony

NA

Before imposition of fine or fee Not provided for Other Yes

No fee shall be assessed against any defendant who asserts that he or she is unable to pay the fee or any portion thereof.

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California Cal. Pen. Code § 1203.1e(b) Payment by county prisoner of costs of parole supervision

(b) If the court determines that the person has the ability to pay all or part of the costs, the court may set the amount to be reimbursed and order

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the person to pay that sum to the county in the manner in which the court believes reasonable and compatible with the person’s financial ability. In making a determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon the person and any amount the person has been ordered to pay in restitution.If practicable, the court shall order payments to be made on a monthly basis as directed by the court. Execution may be issued on the order in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.

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(c) For the purposes of this section, “ability to pay” means the overall capability of the person to reimburse the costs, or a portion of the costs, of providing parole

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supervision and shall include, but shall not be limited to, consideration of all of the following factors: (1) Present financial position. (2) Reasonably discernible future financial position. In no event shall the board consider a period of more than six months from the date of the hearing for purposes of determining reasonably discernible future financial position. (3) Likelihood that the person shall be able to obtain employment within the six-month period from the date of the hearing. (4) Any other factor or factors which may bear upon the person’s financial capability to reimburse the county for the costs. (d) At any time during the pendency of the order made under this section, a person against whom an order has been made may petition the court to modify or vacate its previous order on the grounds of a change of circumstances with regard to the person’s ability to pay. The court shall advise the person of this right at the time of making the order.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Reduced fee/installment plan

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California Cal. Pen. Code § 1203.1c(a) Payment of costs of incarceration in local facility as condition of probation

(a) In any case in which a defendant is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other

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local detention facility as a term of probation or a conditional sentence, the court may, after a hearing, make a determination of the ability of the defendant to pay all or a portion of the reasonable costs of such incarceration, including incarceration pending disposition of the case. The reasonable cost of such incarceration shall not exceed the amount determined by the board of supervisors, with respect to the county jail, and by the city council, with respect to the city jail, to be the actual average cost thereof on a per-day basis. The court may, in its discretion, hold additional hearings during the probationary period. The court may, in its discretion before such hearing, order the defendant to file a statement setting forth his or her assets, liability and income, under penalty of perjury, and may order the defendant to appear before a county officer designated by the board of supervisors to make an inquiry into the ability of the defendant to pay all or a portion of such costs. At the hearing, the defendant shall be entitled to have the opportunity to be heard in person or to be represented by counsel, to present witnesses and other evidence, and to confront and cross-examine adverse witnesses. A defendant represented by counsel appointed by the court in the criminal proceedings shall be entitled to such representation at any hearing held pursuant to this section. If the court determines that the defendant has the ability to pay all or a part of the costs, the court may set the amount to be reimbursed and order the defendant to pay that sum to the county, or to the city with respect to incarceration in the city jail, in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.If practicable, the court shall order payments to be made on a monthly basis and the payments shall be made payable to the county officer designated by the board of supervisors, or to a city officer designated by the city council with respect to incarceration in the city jail. A payment schedule for reimbursement of the costs of incarceration pursuant to this section based upon income shall be developed by the county officer designated by the board of supervisors, or by the city council with respect to incarceration in the city jail, and approved by the presiding judge of the superior court in the county.

All

(c) For the purposes of this section, “ability to pay” means the overall capability of the person to reimburse the costs, or a portion of the costs, of providing parole

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supervision and shall include, but shall not be limited to, consideration of all of the following factors: (1) Present financial position. (2) Reasonably discernible future financial position. In no event shall the board consider a period of more than six months from the date of the hearing for purposes of determining reasonably discernible future financial position. (3) Likelihood that the person shall be able to obtain employment within the six-month period from the date of the hearing. (4) Any other factor or factors which may bear upon the person’s financial capability to reimburse the county for the costs. (d) At any time during the pendency of the order made under this section, a person against whom an order has been made may petition the court to modify or vacate its previous order on the grounds of a change of circumstances with regard to the person’s ability to pay. The court shall advise the person of this right at the time of making the order.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Reduced fee/installment plan

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California Cal. Pen. Code § 1203.1m(b) Defendant to pay cost of imprisonment

(b) The court may, in its discretion before any hearing, order the defendant to file a statement setting forth his or her assets, liability, and income, under penalty of perjury.

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At the hearing, the defendant shall have the opportunity to be heard in person or through counsel, to present witnesses and other evidence, and to confront and cross-examine adverse witnesses. A defendant who is represented by counsel appointed by the court in the criminal proceedings shall be entitled to representation at any hearing held pursuant to this section. If the court determines that the defendant has the ability to pay all or a part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the Department of Corrections for deposit in the General Fund in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.

All

(e) For the purposes of this section, in determining a defendant’s ability to pay, the court shall consider the overall ability of the defendant to reimburse all or a portion

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of the costs of imprisonment in light of the defendant’s present and foreseeable financial obligations, including family support obligations, restitution to the victim, and fines, penalties, and other obligations to the court, all of which shall take precedence over a reimbursement order made pursuant to this section.(f) For the purposes of this section, in determining a defendant’s ability to pay, the court shall not consider the following: (1) The personal residence of the defendant, if any, up to a maximum amount of the median home sales price in the county in which the residence is located. (2) The personal motor vehicle of the defendant, if any, up to a maximum amount of ten thousand dollars ($10,000). (3) Any other assets of the defendant up to a maximum amount of the median annual income in California.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

fee will be reduced

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California Cal. Pen. Code § 987.8(b), (d)-(f) Of the Arraignment of the Defendant: Determination of assets subject to attachment; Determination and order for payment of costs of counsel; Proceedings; Enforcement

(b) If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court

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or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

(d) If the defendant, after having been ordered to appear before a county officer, has been given proper notice and fails to appear before a county officer within 20 working days, the county officer shall recommend to the court that the full cost of the legal assistance be ordered to be paid by the defendant. The notice to the defendant shall contain all of the following: (1) A statement of the cost of the legal assistance provided to the defendant as determined by the court. (2) The defendant’s procedural rights under this section. (3) The time limit within which the defendant’s response is required. (4) A warning that if the defendant fails to appear.

(e)(1) At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights: (A) The right to be heard in person. (B) The right to present witnesses and other documentary evidence. (C) The right to confront and cross-examine adverse witnesses. (D) The right to have the evidence against him or her disclosed to him or her. (E) The right to a written statement of the findings of the court. (2) If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Failure of a defendant who is not in custody to appear after due notice is a sufficient basis for an order directing the defendant to pay the full cost of the legal assistance determined by the court. The order to pay all or a part of the costs may be enforced in the manner provided for enforcement of money judgments generally but may not be enforced by contempt.

(f) Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.

Felony

(g)(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and

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shall include, but not be limited to, all of the following: (A) The defendant’s present financial position. (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison, or to county jail for a period longer than 364 days, including, but not limited to, a sentence imposed pursuant to subdivision (h) of Section 1170, shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. (D) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Court may waive or reduce fee