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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North Carolina N.C. Gen. Stat. Ann. § 15A-145.4(j) Expunction of records for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony

(j) A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars

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($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

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Indigent

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

N/A

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North Carolina N.C. Gen. Stat. Ann. § § 15A-145(e) Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors

A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($

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175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($ 122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($ 52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

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Indigent

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

N/A

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North Carolina N.C. Gen. Stat. Ann. § 15A-145.1(d) Expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses

A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($

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175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($ 122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($ 52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

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Indigent

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

N/A

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North Carolina N.C. Gen. Stat. Ann. § 15A-145.2(d) Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses

A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($

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175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($ 122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($ 52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

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Indigent

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

N/A

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North Carolina N.C. Gen. Stat. Ann. § 15A-145.3(d) Expunction of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapors offenses

A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($

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175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($ 122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($ 52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

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Indigent

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

N/A

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North Carolina N.C. Gen. Stat. Ann. § 7A-452(a)-(c1) Source of counsel; fees; appellate records

(a) Upon the court's determination that a person is indigent and entitled to counsel under this Article, counsel shall be appointed in accordance with rules adopted by the Office of

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Indigent Defense Services. In noncapital cases, the court shall assign counsel pursuant to rules adopted by the Office of Indigent Defense Services. In capital cases, the Office of Indigent Defense Services or designee of the Office of Indigent Defense Services shall assign counsel; at least one member of each capital defense team, where practicable, shall be a member of the bar in that division. In the courts of those counties which have a public defender, however, the public defender may tentatively assign himself or an assistant public defender to represent an indigent person, subject to subsequent determination of entitlement to counsel by the court and approval by the court in noncapital cases and by the Office of Indigent Defense Services in capital cases.
(b) Fees of assigned counsel and salaries and other operating expenses of the offices of the public defenders shall be borne by the State.
(c)(1) The clerk of superior court is authorized to make a determination of indigency and entitlement to counsel, as authorized by this Article. The word “court,” as it is used in this Article and in any rules pursuant to this Article, includes the clerk of superior court.

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Indigent

Before imposition of fine or fee Not provided for Other No

State pays counsel fees.

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North Carolina N.C. Gen. Stat. Ann .§ 7A-450 Indigency; definition; entitlement; determination; change of status

(a) An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated

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in this Subchapter. An interpreter is a necessary expense as defined in Chapter 8B of the General Statutes for a deaf person who is entitled to counsel under this subsection.
(b) Whenever a person, under the standards and procedures set out in this Subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation. The professional relationship of counsel so provided to the indigent person he represents is the same as if counsel had been privately retained by the indigent person.
(b1) An indigent person indicted for murder may not be tried where the State is seeking the death penalty without an assistant counsel being appointed in a timely manner. If the indigent person is represented by the public defender's office, the requirement of an assistant counsel may be satisfied by the assignment to the case of an additional attorney from the public defender's staff.
(c) The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation.
(d) If, at any stage in the action or proceeding, a person previously determined to be indigent becomes financially able to secure legal representation and provide other necessary expenses of representation, he must inform the counsel appointed by the court to represent him of that fact. In such a case, that information is not included in the attorney client privilege, and counsel must promptly inform the court of that information.

All

Indigent

Before imposition of fine or fee Not provided for Other No

State provides for counsel. 

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North Carolina N.C. Gen. Stat. Ann. § 7A-313.1 Fee for costs of electronic monitoring

A county that provides the personnel, equipment, and other costs of providing electronic monitoring as a condition of an offender's bond or pretrial release may collect a fee from the

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offender that is the lesser of the amount of the jail fee authorized in G.S. 7A-313 or the actual cost of providing the electronic monitoring. A county may not collect a fee from an offender who is determined to be indigent and entitled to court-appointed counsel.

All

Indigent

Before imposition of fine or fee Not provided for Not provided for No

Fee waiver

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North Carolina N.C. Gen. Stat. Ann. § 14-208.45 Sex Offender and Public Protection Registration Programs: Fees

(a) Except as provided in subsections (b) and (b1) of this section, each person required to enroll pursuant to this Part shall pay a one-time fee of ninety dollars ($90.00).

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The fee shall be payable to the clerk of superior court, and the fees shall be remitted quarterly to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. This fee is intended to offset only the costs associated with the time-correlated tracking of the geographic location of subjects using the location tracking crime correlation system.
(b) When a court determines a person is required to enroll pursuant to G.S. 14-208.40A or G.S. 14-208.40B, the court may exempt a person from paying the fee required by subsection (a) of this section only for good cause and upon motion of the person required to enroll in satellite-based monitoring. The court may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.
(c) When a person is required to enroll based on a determination by the Division of Adult Correction and Juvenile Justice pursuant to G.S. 14-208.40B, the Division of Adult Correction and Juvenile Justice shall have the authority to exempt the person from paying the fee only for good cause and upon request of the person required to enroll in satellite-based monitoring. The Division of Adult Correction and Juvenile Justice may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.
Credits

All

Agency/court has authority to exempt the person from paying the fee only for good cause.

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Administrative decision No

Fee waiver

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North Carolina N.C. Gen. Stat. Ann. § 15A-1340.36(a) Determination of restitution

(a) In determining the amount of restitution to be made, the court shall take into consideration the resources of the defendant including all real and personal property owned by the

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defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution, but the court is not required to make findings of fact or conclusions of law on these matters. The amount of restitution must be limited to that supported by the record, and the court may order partial restitution when it appears that the damage or loss caused by the offense is greater than that which the defendant is able to pay. If the court orders partial restitution, the court shall state on the record the reasons for such an order.

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The resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation

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to support dependents; damage or loss caused by the offense is greater than that which the defendant is able to pay.

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Partial restitution

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Washington Wash. Rev. Code Ann. § 9.94A.6333(3)(a),(c),(f) Sanctions--Modification of sentence--Noncompliance hearing

(3) If an offender fails to pay legal financial obligations as a requirement of a sentence the following provisions apply:
 

(a) The court, upon the motion of the state, or

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upon its own motion, shall require the offender to show cause why the offender should not be punished for the noncompliance. The court may issue a summons or a warrant of arrest for the offender's appearance;

(c) The court may not sanction the offender for failure to pay legal financial obligations unless the court finds, after a hearing and on the record, that the failure to pay is willful. A failure to pay is willful if the offender has the current ability to pay but refuses to do so. In determining whether the offender has the current ability to pay, the court shall inquire into and consider: (i) The offender's income and assets; (ii) the offender's basic living costs as defined by RCW 10.101.010 and other liabilities including child support and other legal financial obligations; and (iii) the offender's bona fide efforts to acquire additional resources. An offender who is indigent as defined by RCW 10.101.010(3) (a) through (c) is presumed to lack the current ability to pay; 

(f) If the court finds that the violation was not willful, the court may, and if the court finds that the defendant is indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall modify the terms of payment of the legal financial obligations, reduce or waive nonrestitution legal financial obligations, or convert nonrestitution legal financial obligations to community restitution hours, if the jurisdiction operates a community restitution program, at the rate of no less than the state minimum wage established in RCW 49.46.020 for each hour of community restitution. The crime victim penalty assessment under RCW 7.68.035 may not be reduced, waived, or converted to community restitution hours.

All

Court shall inquire into and consider: (i) The offender's income and assets; (ii) the offender's basic living costs as defined by RCW 10.101.010 and other liabilities including child support and

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other legal financial obligations; and (iii) the offender's bona fide efforts to acquire additional resources; Indigent.

At enforcement of fine or fee Not provided for Determined by judge after hearing No

The court shall modify the terms of payment of the legal financial obligations, reduce or waive nonrestitution legal financial obligations, or convert nonrestitution legal financial obligations to community restitution hours.

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Washington Wash. Rev. Code Ann. § 9.94B.040(4)(c) Noncompliance with condition or requirement of sentence — Procedure — Penalty.

(c) The state has the burden of showing noncompliance by a preponderance of the evidence. The court may not sanction the offender for failure to pay legal financial obligations unless

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the court finds, after a hearing and on the record, that the failure to pay is willful. A failure to pay is willful if the offender has the current ability to pay but refuses to do so. In determining whether the offender has the current ability to pay, the court shall inquire into and consider: (i) The offender’s income and assets; (ii) the offender’s basic living costs as defined by RCW 10.101.010 and other liabilities including child support and other legal financial obligations; and (iii) the offender’s bona fide efforts to acquire additional resources. An offender who is indigent as defined by RCW 10.101.010(3) (a) through (c) is presumed to lack the current ability to pay;

All

Court shall inquire into and consider: (i) The offender’s income and assets; (ii) the offender’s basic living costs as defined by RCW 10.101.010 and other liabilities including child support and

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other legal financial obligations; and (iii) the offender’s bona fide efforts to acquire additional resources; indigent.

At enforcement of fine or fee Burden on government to show ability to pay Determined by judge without hearing No

Court may not sanction the offender for failure to pay legal financial obligations

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Washington Wash. Rev. Code Ann. § 10.01.180(3),(5) Fine or costs — Default in payment — Contempt of court — Enforcement, collection procedures

(3) (a) The court shall not sanction a defendant for contempt based on failure to pay fines, penalties, assessments, fees, or costs unless the court finds, after a hearing and on the

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record, that the failure to pay is willful. A failure to pay is willful if the defendant has the current ability to pay but refuses to do so. (b) In determining whether the defendant has the current ability to pay, the court shall inquire into and consider: (i) The defendant’s income and assets; (ii) the defendant’s basic living costs as defined by RCW 10.101.010 and other liabilities including child support and other legal financial obligations; and (iii) the defendant’s bona fide efforts to acquire additional resources. A defendant who is indigent as defined by RCW 10.101.010(3) (a) through (c) is presumed to lack the current ability to pay. (c) If the court determines that the defendant is homeless or a person who is mentally ill, as defined in RCW 71.24.025, failure to pay a legal financial obligation is not willful contempt and shall not subject the defendant to penalties.
(5) If it appears to the satisfaction of the court that the default in the payment of any fine, penalty, assessment, fee, or costs is not willful contempt, the court may, and if the defendant is indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall enter an order: (a) Allowing the defendant additional time for payment; (b) reducing the amount thereof or of each installment; (c) revoking the fine, penalty, assessment, fee, or costs or the unpaid portion thereof in whole or in part; or (d) converting the unpaid fine, penalty, assessment, fee, or costs to community restitution hours, if the jurisdiction operates a community restitution program, at the rate of no less than the state minimum wage established in RCW 49.46.020 for each hour of community restitution. The crime victim penalty assessment under RCW 7.68.035 may not be reduced, revoked, or converted to community restitution hours.

All

Court shall inquire into and consider: (i) The defendant’s income and assets; (ii) the defendant’s basic living costs as defined by RCW 10.101.010 and other liabilities including child support and other legal

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financial obligations; and (iii) the defendant’s bona fide efforts to acquire additional resources; indigent.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

Court shall enter an order: (a) Allowing the defendant additional time for payment; (b) reducing the amount thereof or of each installment; (c) revoking the fine, penalty, assessment, fee, or

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costs or the unpaid portion thereof in whole or in part; or (d) converting the unpaid fine, penalty, assessment, fee, or costs to community restitution hours.

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Washington Wash. Rev. Code Ann. § 9.92.070 Payment of fine and costs in installments

Hereafter whenever any judge of any superior court or a district or municipal judge shall sentence any person to pay any fines, penalties, assessments, fees, and costs, the judge may,

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in the judge’s discretion, provide that such fines, penalties, assessments, fees, and costs may be paid in certain designated installments, or within certain designated period or periods. If the court finds that the defendant is indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall allow for payment in certain designated installments or within certain designated periods. If such fines, penalties, assessments, fees, and costs shall be paid by the defendant in accordance with such order no commitment or imprisonment of the defendant shall be made for failure to pay such fine or costs. PROVIDED, that the provisions of this section shall not apply to any sentence given for the violation of any of the liquor laws of this state.

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Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing No

The court shall allow for payment in certain designated installments or within certain designated periods

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Washington Wash. Rev. Code Ann. § 3.62.085 Fee for conviction or plea of guilty

Upon conviction or a plea of guilty in any court organized under this title or Title 35 RCW, a defendant in a criminal case is liable for a fee of

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forty-three dollars, except this fee shall not be imposed on a defendant who is indigent as defined in RCW 10.101.010(3) (a) through (c). 

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Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Fee waiver.

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Washington Wash. Rev. Code Ann. § 10.46.190 Liability of convicted person for costs--Jury fee

Every person convicted of a crime or held to bail to keep the peace may be liable to all the costs of the proceedings against him or her, including, when

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tried by a jury in the superior court or before a committing magistrate, a jury fee as provided for in civil actions for which judgment shall be rendered and collected. The court shall not order a defendant to pay costs, as described in RCW 10.01.160, if the court finds that the person at the time of sentencing is indigent as defined in RCW 10.101.010(3) (a) through (c). T

All

Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Court shall not order a defendant to pay costs

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Washington Wash. Rev. Code Ann. § 10.64.015 Judgment to include costs--Exception

When the defendant is found guilty, the court shall render judgment accordingly, and the defendant may be liable for all costs, unless the court or jury trying the cause expressly

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find otherwise. The court shall not order a defendant to pay costs, as described in RCW 10.01.160, if the court finds that the person at the time of sentencing is indigent as defined in RCW 10.101.010(3) (a) through (c).

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing No

Court shall not order a defendant to pay costs