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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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-201(b) Waiver of Fees for Indigent Petitioners
The circuit court shall pass an order waiving the payment in advance if: (1) Upon petition for waiver, it is satisfied that the petitioner is unable by reason of his
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poverty to make the payment; and (2) The petitioner's attorney, if any, certifies that the suit, appeal, or writ is meritorious.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Waiver of fee

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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-405 Waiver of Criminal Court Costs
The District Court or a circuit court in a criminal case may not waive any court costs imposed under § 7-409 of this subtitle unless the defendant establishes indigency as
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provided in the Maryland Rules.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Waiver of fee

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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-504(c)(2) Ability to Pay Fine
(a) A defendant who is unable to pay a fine ordered by a court may apply to the court for a reduction of the fine. (b) If a defendant
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fails or is unable to pay a fine as ordered by a court, the court may investigate the reasons for the failure or inability to pay the fine, including the defendant's financial and family situation and whether nonpayment of the fine is contumacious or is due to indigence. (c) After an investigation that a court considers necessary as to the reasons for the failure or inability to pay a fine, the court: (1) May order that the individual be committed to a correctional facility; (2) May reduce the fine to an amount that the court determines the defendant is able to pay; or (3) Subject to subsection (d) of this section, may direct that the individual be imprisoned until payment of: (i) The fine; or(ii) Part of the fine that is undischarged after a pro rata credit for time served instead of payment.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Commitment; Reduction of Fee; Incarceration until payment based upon a per diem rate

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South Dakota S.D. Codified Laws § 23A-3-28 Service of motion -- Fee

When a defendant or arrested person makes a motion under this section, the defendant or arrested person shall pay to the clerk of courts in the county where the motion

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is filed a fee equal to the filing fee for a civil action. If the defendant or arrested person establishes to the court’s satisfaction that the person is indigent and unable to pay the fee, the court may waive the filing fee.

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Indigent

Not provided for Not provided for Other No

Waive filing fee

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South Dakota S.D. Codified Laws § 23A-32-16 Notice of appeal--Service on adverse parties--Perfection of appeal--Fee not required of indigent defendant

. . . Whenever an appeal is taken by an indigent, assigned counsel pursuant to § 23A-40-6, no filing fee need be paid and no undertaking need be furnished to

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perfect such appeal.

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Indigent

Not provided for Not provided for Other Yes

Waive filing fee

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South Dakota S.D. Codified Laws § 24-2-28 Liability of inmate for cost of confinement — Exception

Each inmate under the jurisdiction of the Department of Corrections is liable for the cost of the inmate’s confinement which includes room and board charges; medical, dental, optometric, and psychiatric

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services charges; vocational education training; and alcoholism treatment charges.

However, if the secretary of corrections determines after considering the net income, net worth, number of dependents, and any existing obligations of the inmate, that the inmate is unable to pay, the secretary may waive all or part of the payment for the costs of the inmate’s confinement.

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Net income, net worth, number of dependents, and any existing obligations of the inmate.

Not provided for Not provided for Other No

Waive all or part of costs for confinement

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South Dakota S.D. Codified Laws § 24-11-32.1 Work release inmate — Restitution for prisoner maintenance cost

The board of county commissioners may require by resolution that a sum not to exceed the average daily prisoner cost may be charged to work release inmates of county jails

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as restitution to be applied toward prisoner maintenance cost, including but not limited to, room and board. In instances of undue hardship, the commissioners may reduce or waive the charges.

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Undue hardship

Not provided for Not provided for Other No

Reduce or waive charges

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South Dakota S.D. Codified Laws § 24-11-45 Prisoner liable for costs of confinement — Waiver

A prisoner confined to any jail while serving a sentence is liable for the cost of the prisoner’s confinement including room and board charges; medical, dental, optometric, and psychiatric services

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charges; vocational education training; chemical dependency treatment charges; and transportation costs as set forth in subdivision 7-12-18(4), where transporting the prisoner is required. If, after considering the prisoner’s net income, net worth, number of dependents, and any existing obligations, the judge who sentenced the prisoner to jail determines that the prisoner is unable to pay the full amount at one time, the judge may allow the prisoner to set up a deferred payment plan for payment for the costs of the inmate’s confinement or waive all or part of the payment if the prisoner demonstrates an inability to pay.

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Prisoner's net income, net worth, number of dependents, and any existing obligations

Not provided for Not provided for Other No

Waive all or part of costs for confinement

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South Dakota S.D. Codified Laws § 16-2-29.2; S.D. Codified Laws § 16-2-29.3 Waiver of filing fees and service costs--Motion to court; Waiver of filing fees--Affidavit of inability to pay

29.2: A court may waive the payment of filing fees and service costs accruing by reason of a civil action or proceeding or any criminal proceeding on motion to the

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court upon the affidavit of the moving party and the entry of an order thereon.

29.3: The affidavit required by § 16-2-29.2 of the moving party shall state the moving party's inability to pay; the nature of the action, proceeding, or appeal; and a short concise statement of facts upon which the moving party believes he is entitled to redress.

All

N/A

Not provided for Burden on defendant to show inability to pay Other No

Fee is waived.

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South Dakota S.D. Codified Laws § 23A-28-3 Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole

If the sentencing court orders the defendant to the county jail, suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in

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cooperation with the court services officer assigned to the defendant, promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim, and a schedule of restitution payments. If the defendant is presently unable to make any restitution, but there is a reasonable possibility that the defendant may be able to do so at some time during the defendant's probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that no person suffered pecuniary damages as a result of the defendant's criminal activities, the defendant shall so state. If the defendant contests the amount of restitution recommended by the court services officer, the defendant is entitled to a hearing at which the court shall determine the amount. If the sentencing court orders the defendant to the state penitentiary and does not suspend the sentence, the court shall set forth in the judgment the names and specific amount of restitution owed each victim. The Department of Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the penitentiary and on parole. The Board of Pardons and Paroles shall require, as a condition of parole, that the defendant pay restitution ordered by the court.

All Not provided for Before imposition of fine or fee Not provided for Administrative decision No

Payment plan/delay start of payments until later date.

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South Dakota S.D. Codified Laws § 16-2-42 Waiver of surcharge--Conditions

The surcharge provided for in § 16-2-39 may be waived in the manner provided for in §§ 16-2-29.2 to 16-2-29.4, inclusive. If a fine is suspended in whole or in part, the

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surcharge provided for in § 16-2-41 may not be reduced. However, the judge may waive all or any part of the payment of the surcharge which would work a hardship on the person convicted or on his immediate family.

All

Hardship on the person convicted or on his immediate family

Not provided for Not provided for Other No

Fee is waived in amount determined.

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South Dakota S.D. Codified Laws § 23A-40-6 Arrest or detention without formal charge--Assignment of counsel--Certification of indigency required

In any criminal investigation or in any criminal action or action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to

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revoke a parole, if it is satisfactorily shown that the defendant or detained person does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation, the judge of the circuit court or the magistrate shall, upon the request of the defendant, assign, at any time following arrest or commencement of detention without formal charges, counsel for his representation, who shall appear for and defend the accused upon the charge against him, or take other proper legal action to protect the rights of the person detained without formal charge.
In each case, the indigent person, subject to the penalties for perjury, shall certify in writing or by other record such material factors relating to his ability to pay as the court prescribes.

All

Does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation; indigdent.

Not provided for Burden on defendant to show inability to pay Not provided for No

Assign counsel

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South Dakota S.D. Codified Laws § 223A-27-25.5 Hearing required prior to imprisonment or jailing for failure to pay fine, costs, and restitution--Burden of proof--Computation of time to be served

No defendant may be imprisoned or jailed for failure to pay a fine, costs, or restitution or have any suspended prison or jail sentence revoked without a prior hearing. At

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the hearing, the defendant has the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that the defendant did not willfully fail to pay the fine, costs, or restitution or that the defendant did make a bona fide effort to pay the fine, costs, or restitution.
Failure by the defendant to make such a showing is grounds for being imprisoned or jailed. If the sentence provided for payment of fine or costs only, the term of jail or imprisonment may be no longer than the number of days equal to the total amount of the fine or costs imposed divided by sixty. For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs, and restitution together with all other time served or to be served exceed the maximum allowed by statute.
If the defendant establishes that nonpayment was not willful or that the defendant did make a bona fide effort to pay, the defendant may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state's interest in punishment and deterrence.
The court shall make findings in its decision.

All

Did not willfully fail to pay the fine, costs, or restitution or that the defendant did make a bona fide effort to pay the fine, costs, or restitution.

At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Cannot be imprisoned for default on payment.