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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Delaware 10 Del. C. § 8601(c) Recoupment of Costs

The court shall not require a defendant to pay the costs of defense unless the defendant is, or will be, able to pay them. In determining the amount and method

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of payment of such costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

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"The court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose."

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Defendant Not Required to Pay.

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Arkansas Ark. Code Ann. § 16-93-104(b)-(d) Supervision Fee -- Direct Payment by Offender -- Failure to Pay

(b) (1) When an offender on probation defaults in the payment of supervision fees or any installment thereof, the court may require the offender to show cause why he or

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she would not be imprisoned for nonpayment. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so to the court in writing, under oath, and the court so finds. (3) Unless the offender shows that his or her default was not attributable to a purposeful refusal to obey the sentence of the court or to a failure on his or her part to make a good faith effort to obtain the funds required for payment, the court may order the defendant imprisoned until the payments are made. (4) If the court determines that the default in payment is not attributable to the causes specified in subdivision (b)(3) of this section, the court may enter an order allowing the offender additional time for payment, reducing the amount of each installment, or revoking the fees or the unpaid portion thereof in whole or in part. (c) (1) The offender on parole may be imprisoned for violation of parole if the offender is financially able to make the payments and if the payments are not made and the Parole Board so finds, subject to the limitations set out in this subsection. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so under oath to the Parole Board in writing, and the Parole Board so finds. (d) Court costs under § 16-10-305 shall be collected in full before any fees are collected under this section.

All

"The offender is financially unable to make the payments."

Not provided for Burden on defendant to show inability to pay Determined by judge without hearing Yes

Additional Time, Reduced Payments, Revoke Fees.

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Arkansas Ark. Code Ann. § 5-4-303(g)(2)(B) Conditions of Suspension or Probation

The amount of the assessed attorney's fee shall be commensurate with the defendant's ability to pay.

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Waiver/Reduction of Fee.

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Hawaii Haw. Rev. Stat. § 706-605(6) Authorized disposition of convicted defendants

(6) The court shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; provided that the court shall waive the imposition of a

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compensation fee if it finds that the defendant is unable to pay the compensation fee. When a defendant is ordered to make payments in addition to the compensation fee, payments by the defendant shall be made in the order of priority established in section 706-651.

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Fee waiver.

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Hawaii Haw. Rev. Stat. 853-1(b) Deferred acceptance of guilty plea or nolo contendere plea; discharge and dismissal, expungement of records

(b) . . . the court shall impose a compensation fee pursuant to section 351-62.6 and a probation services fee pursuant to section 706-648 upon every defendant who has entered

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a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation or probation services fee, if it finds that the defendant is unable to pay the compensation or probation services fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court's discretion during the period during which the proceedings are deferred.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Fee waiver.

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Illinois 730 Ill. Comp. Stat. 5/5-6-3(g) Conditions of Probation and of Conditional Discharge

An offender sentenced to probation or to conditional discharge and who during the term of either undergoes mandatory drug or alcohol testing, or both, or is assigned to be placed

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on an approved electronic monitoring device, shall be ordered to pay all costs incidental to such mandatory drug or alcohol testing, or both, and all costs incidental to such approved electronic monitoring in accordance with the defendant’s ability to pay those costs. The county board with the concurrence of the Chief Judge of the judicial circuit in which the county is located shall establish reasonable fees for the cost of maintenance, testing, and incidental expenses related to the mandatory drug or alcohol testing, or both, and all costs incidental to approved electronic monitoring, involved in a successful probation program for the county. The concurrence of the Chief Judge shall be in the form of an administrative order. The fees shall be collected by the clerk of the circuit court, except as provided in an administrative order of the Chief Judge of the circuit court. The clerk of the circuit court shall pay all moneys collected from these fees to the county treasurer who shall use the moneys collected to defray the costs of drug testing, alcohol testing, and electronic monitoring. The county treasurer shall deposit the fees collected in the county working cash fund under Section 6-27001 or Section 6-29002 of the Counties Code [55 ILCS 5/6-27001 or 55 ILCS 5/1-29002], as the case may be. The Chief Judge of the circuit court of the county may by administrative order establish a program for electronic monitoring of offenders, in which a vendor supplies and monitors the operation of the electronic monitoring device, and collects the fees on behalf of the county. The program shall include provisions for indigent offenders and the collection of unpaid fees. The program shall not unduly burden the offender and shall be subject to review by the Chief Judge.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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Kentucky Ky. Rev. Stat. Ann. § 534.030(2) Fines for felonies

(2) In determining the amount and method of paying a fine for commission of a felony, the court shall consider, among others, the following factors: (a) The defendant's ability to

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pay the amount of the fine; (b) The hardship likely to be imposed on the defendant's dependents by the amount of the fine and the time and method of paying it; (c) The impact the amount of the fine will have on the defendant's ability to make reparation or restitution to the victim; and (d) The amount of the defendant's gain, if any, derived from the commission of the offense.

Felony Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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Kentucky Ky. Rev. Stat. Ann. § 510.320(2)-(3),(6) Human immunodeficiency virus testing for defendants accused of certain sexual offenses; results; counseling when test positive; cost; effect of appeal

(2) A defendant charged with an offense pursuant to this chapter which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when

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the circumstances of the case demonstrate a possibility of transmission of human immunodeficiency virus, shall upon initial court appearance on the charge, be informed by the judge of the availability of human immunodeficiency virus testing. The judge shall also notify the victim of the offense, or parent or guardian of the victim, that the defendant has been so notified.

(3) When a defendant has been convicted of any offense in subsection (2) of this section, other provisions of law to the contrary notwithstanding, the sentencing court, regardless of any prior human immunodeficiency virus test, shall order the defendant to undergo a human immunodeficiency virus test, under the direction of the Cabinet for Health and Family Services...

(6) The cost of testing under this section shall be paid by the defendant tested, unless the court has determined the defendant to be indigent.

All

Indigency

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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Massachusetts Mass. Gen. Laws ch. 266, § 111B Fraudulent Motor Vehicle Insurance Claims; Penalties; Reimbursement of Insurer.

. . . In determining the amount, time and method of payment of restitution, the court shall consider the financial resources of the defendant and the burden restitution will impose

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on the defendant.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes Not provided for
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Massachusetts Mass. Gen. Laws ch. 266, § 147(e) Counterfeit Marks — Manufacture, Use or Display.

Any person convicted under this section shall, in addition to any penalty imposed pursuant to subsection (b), be punished by a fine in an amount not to exceed three times

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the retail value of the items bearing or of services identified by a counterfeit mark, unless extenuating circumstances are shown by the defendant.

Misdemeanor

Extenuating circumstances

Not provided for Burden on defendant to show inability to pay Determined by judge without hearing Yes

N/A

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Massachusetts Mass. Gen. Laws ch. 266, § 27A Removing or Concealing Motor Vehicles or Trailers to Defraud Insurers; Reimbursement of Insurers.

Restitution shall be imposed in addition to incarceration or fine, and not in lieu thereof; provided, however, the court shall consider the defendant’s present and future ability to pay in

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its determinations regarding a find; provided, further, that, whenever possible subject to the constraints of this paragraph and the preceding paragraph, the amount of a fine imposed for a violation of this section shall equal twice the amount of damages or financial loss suffered as a result of the defendant’s crime.

Felony

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

N/A

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Massachusetts Mass. Gen. Laws ch. 269, § 14(d) False Reports Relative to Location of Explosives, etc., Penalized.

. . . A person found guilty of violating this section shall, in all cases, in addition to any other punishment, be ordered to make restitution to the individual, public

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or private entity for any costs incurred, damages and financial loss sustained as a result of the commission of the crime. Restitution shall be imposed in addition to incarceration or fine, and not in lieu thereof, however, the court shall consider the defendant’s present and future ability to pay in its determinations regarding a fine. In determining the amount, time and method of payment of restitution, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant.

Felony

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

N/A

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Massachusetts Mass. Gen. Laws ch. 90, § 24D Drivers Convicted of Operating Motor Vehicle Under the Influence of Intoxicating Liquors or Controlled Substances.

Each person placed in a program of driver alcohol or controlled substance abuse education and, if deemed necessary by the court, a program of alcohol or controlled substance abuse treatment,

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rehabilitation, or alcohol or controlled substance abuse treatment and rehabilitation pursuant to this section shall pay directly to such program a fee in an amount to be determined by the department of public health . . . No person may be excluded from said program for inability to pay the stated fee, provided that such person files an affidavit of indigency or inability to pay with the court within ten days of the date of disposition, that investigation by the probation officer confirms such indigency or establishes that the payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of such fee when appropriate. Subject to appropriation, the department of public health shall reimburse each program for the costs of services provided to persons for whom payment of a fee has been waived on the grounds of indigency.

Traffic

Indigency; payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual.

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing Yes

Waiver, partial or installment payments of fee.

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Massachusetts Mass. Gen. Laws ch. 90B, § 8(3)(B) Operation of Vessel Under Influence of Liquor or Drugs; Water Skiing; Reckless Operation

The defendant shall pay for the cost of the services provided by the boating safety education course, the alcohol education or rehabilitation program, and the residential alcohol treatment program; however,

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no person shall be excluded from said programs for inability to pay, provided that such person files an affidavit of indigency or inability to pay with the court, that investigation by the probation officer confirms such indigency or establishes that the payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program.

Traffic

Cause a grave and serious hardship to such individual or to the family

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing Yes

Waiver, partial or installment payments of fee.

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Massachusetts Mass. Gen. Laws ch. 276, § 30 Default Warrants — Warrant for Forfeiting or Defaulting on Bail Bond or Recognizance — Fees.

 

Any person arrested on a warrant issued because such person has forfeited or defaulted on his bail bond or recognizance or has been surrendered by a probation officer shall be

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required by the court to pay a fee of $75 payable to the city or town in which such arrest was effected, unless the judge finds that such person is indigent or that such fee would cause a substantial financial hardship to the person, the person’s immediate family or the person’s dependents, in which case such person shall be required to perform one day of community service, unless the judge further finds that such person is physically or mentally unable to perform such service.

All

Indigent or that such fee would cause a substantial financial hardship to the person, the person’s immediate family or the person’s dependents

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

One day of community service

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Missouri Mo. Ann. Stat. § 479.260(1) Court costs and fees, judicial education fund, purpose, administration

Municipalities by ordinance may provide for fees in an amount per case to be set pursuant to sections 488.010 to 488.020 for each municipal ordinance violation case filed before a municipal judge, and in

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the event a defendant pleads guilty or is found guilty, the judge may assess costs against the defendant except in those cases where the defendant is found by the judge to be indigent and unable to pay the costs. 

All

Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Fees not assessed.

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Missouri Mo. Ann. Stat. § 600.090(1) Determination of ability to pay all or part of representation costs--lien for reasonable value of services, procedure--deposit of funds collected

If a person is determined to be eligible for the services provided by the state public defender system and if, at the time such determination is made, he is able

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to provide a limited cash contribution toward the cost of his representation without imposing a substantial hardship upon himself or his dependents, such contribution shall be required as a condition of his representation by the state public defender system.

All

Able to provide limited cash contribution without imposing substantial hardship upon himself or his dependents.

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Payment of total costs of representation

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New Hampshire N.H. Rev. Stat. Ann. § 516:16-a Defaults; Witness Fees for Law Enforcement Officers

Any person who defaults on a scheduled court appearance on a motor vehicle offense shall be responsible for paying the current witness fee for any law enforcement officer required to

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attend such appearance, unless the court determines that such person is indigent.

Traffic

Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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New Hampshire N.H. Rev. Stat. § 604-A:9(I)(b) Repayment

The court shall enter a separate order, pursuant to the rules adopted by the commissioner of administrative services under RSA 604-A:10, IV, setting forth the terms of repayment of fees

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and expenses to the state, or if the court finds that the defendant is financially unable to make such payment or payments setting forth the reasons therefor. A copy of each order shall be forwarded to the commissioner of administrative services. Any defendant subject to an order under this section may petition the court for relief from the obligation imposed by this section, which may be granted only upon a finding that the defendant is unable to comply with the terms of the court's order or any modification of the order by the court. If the court does not order full payment for representation under RSA 604-A, the commissioner of administrative services or his designee shall perform an investigation to determine the defendant's present financial condition and his ability to make repayment and may petition the court for a new repayment order at any time within 6 years from the date of the original order.

All Not provided for Not provided for Not provided for Determined by judge without hearing Yes

N/A

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New Mexico N.M. Stat. Ann. § 31-16-5(B)-(C) Determination of indigency

B. In determining whether a person is a needy person and the extent of his inability to pay, the court concerned may consider such factors as income, property owned, outstanding obligations

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and the number and ages of his dependents. Release on bail does not necessarily prevent him from being a needy person. In each case, the person shall, subject to the penalties for perjury, certify in writing or by other record material factors relating to his ability to pay as the court prescribes.

C. To the extent that a person covered by Section 60 [31-16-3 NMSA 1978] of the Indigent Defense Act is able to provide for an attorney, the other necessary services and facilities of representation and court costs, the court may order him to provide for their payment.

All

Factors considered: income, property owned, outstanding obligations and number and age of dependents

Not provided for Not provided for Determined by judge without hearing Yes

Representation provided without costs