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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Oklahoma Okla. Stat. tit. 22, § 988.9 Fees and costs
In hardship cases the supervising agency may expressly waive all or part of the fee. No supervising agency participating in a local community sentencing system shall deny any offender supervision
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services for the sole reason that the offender is indigent.
All Not provided for Not provided for Not provided for Administrative decision No

Waiver of fee

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Oklahoma Okla. Stat. tit. 22, § 991a(A)(4) Sentencing powers of court--Alcohol and drug assessment and evaluation--Restitution, fines, or incarceration--Victim impact statements--Probation and monitoring--DNA samples
if, in the opinion of the court, the defendant is able to pay without imposing manifest hardship on the defendant, and if the costs incurred by the Bureau during the
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investigation of the defendant's case may be determined with reasonable certainty;
All Not provided for Not provided for Not provided for Other Yes

None specified

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Oklahoma Okla. Stat. tit. 22, § 471.6H Final eligibility hearing--Acceptance into program--Duration of participation--Costs and fees--Driving privileges
Court orders for costs and fees shall remain an obligation of the offender until fully paid; provided, however, once the offender has successfully completed the drug court program, the drug
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court judge shall have the discretion to expressly waive all or part of the costs and fees provided for in this subsection if, in the opinion of the drug court judge, continued payment of the costs and fees by the offender would create a financial hardship for the offender. Offenders who have not fully paid all costs and fees pursuant to court order but who have otherwise successfully completed the drug court program shall not be counted as an active drug court participant for purposes of drug court contracts or program participant numbers.
All

No financial hardship

At enforcement of fine or fee Not provided for Not provided for No

Waiver of fee

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Oklahoma Okla. Stat. tit. 22, § 60.2C Protective order--Petition--Complaint requirement for certain stalking victims--Fees the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees. All Not provided for Not provided for Not provided for Not provided for No

Waiver of costs

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Oklahoma Okla. Stat. tit. 22, § 1355.14E Payment of costs of representation--Fee schedule
The fees shall be assessed unless ordered waived upon good cause shown by the indigent person, or unless another amount is specifically requested by counsel for the indigent person and
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is approved by the court.
All

Not indigent

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Not provided for No

Waiver of fee

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Oklahoma Okla. Stat. tit. 10A, § 1-4-701A Reimbursements and costs by parents able to pay Upon notice to the parent or other person legally obligated to support the child and upon an opportunity to be heard and a finding of financial ability to pay All Not provided for Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

None specified

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Oklahoma Okla. Stat. tit. 22, § 1355A Application for representation by the System
except that the court may, based upon the financial information submitted, defer all or part of the fee if the court determines that the person does not have the financial
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resources to pay the fee at time of application, to attach as a court fee upon conviction.
All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Deferment of fee

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Oklahoma Okla. Stat. tit. 22, § 979a Payment of jail costs by inmate The defendant shall have an opportunity to object to the amount of costs solely on the grounds that the number of days served is incorrect. All

None. Defendant can only object on the grounds that the number of days served is incorrect.

Not provided for Burden on defendant to show inability to pay Not provided for Yes

Waiver of fee

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Oklahoma Okla. Stat. tit. 22, § 983b Released persons--Hearing to determine ability to pay fines, costs and fees
A. Any person released on parole or released without parole from a term of imprisonment with the Department of Corrections shall be required to report at a time not less
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than one hundred eighty (180) days after his or her release from the Department of Corrections to:1. The district court of the county from which the judgment and sentence resulting in incarceration arose; and 2. All other district courts or municipal courts where the person owes fines, fees, costs and assessments, for the purpose of scheduling a hearing to determine the ability of the person to pay fines, fees, costs or assessments owed by the person in every felony or misdemeanor criminal case filed in a district court or criminal case filed in a municipal court of this state. Such hearing shall be held in accordance with the provisions of Section VIII of the Rules of the Court of Criminal Appeals, 22 O.S. 2011, Ch. 18, App. A court may for good cause shown or in its discretion continue such hearing for up to one hundred eighty (180) days. B. In determining the ability of the person to satisfy fines, fees, costs or assessments owed to a district or municipal court, the court shall inquire of the person at the time of the hearing which counties and municipalities the person owes fines, fees, costs or assessments in every felony or misdemeanor criminal case filed against the person and shall consider all court-ordered debt, including restitution and child support, in determining the ability of the person to pay. The person shall not be required to pay any outstanding fines, fees, costs or assessments prior to the expiration of the one-hundred-eighty-day period; provided, however, the person shall not be precluded from voluntarily making payment toward the satisfaction of any fines, fees, costs or assessments due and owing to a district or municipal court of this state.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing Yes

Waiver of fees pursuant to § 983a: A. On or after November 1, 2016, the court shall have the authority to waive all outstanding fines, court costs and fees in

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a criminal case for any person who:
1. Served a period of imprisonment in the custody of the Department of Corrections after conviction for a crime;
2. Has been released from the custody of the Department of Corrections;
3. Has complied with all probation or supervision requirements since being released from the custody of the Department of Corrections; and
4. Has made installment payments on outstanding fines, court costs, fees and restitution ordered by the court on a timely basis every month for the previous twenty-four (24) months following release from the custody of the Department of Corrections.
B. The provisions of this section shall not apply to amounts owed by the person for restitution to a victim pursuant to a court order or child support obligations pursuant to a court order.

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Oklahoma Okla. Stat. tit. 31, § 1.1 Earnings from personal services--Exemption from process--Order
A. Following the issuance of an execution, attachment, or garnishment, except process to collect a judgment or order for child support or maintenance of children or in cases in which
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the court has limited or reduced the application of this section pursuant to Section 142.18 of Title 21 of the Oklahoma Statutes, the debtor may file with the court an application requesting a hearing to exempt from such process by reason of undue hardship that portion of any earnings from personal services necessary for the maintenance of a family or other dependents supported wholly or partially by the labor of the debtor. A debtor with no family or other dependents may not claim an exemption under this section. A hearing on the application shall be set and conducted in the manner provided by Section 1172.2 of Title 12 of the Oklahoma Statutes and subsection C of Section 1174 of Title 12 of the Oklahoma Statutes.B. In determining the existence of an undue hardship, the court should consider the income and expenses of the family and other dependents, and the standard of living created by the income and expenses. The court should also consider the standard of living in relationship to the minimal subsistence needs of the debtor's family and other dependents, with comparison to the minimal subsistence standards in the community, in regard to basic shelter, food, clothing, personal necessities and transportation. The court should then determine if the lack of the funds sought to be exempt would be an undue hardship by creating less than a minimal level of subsistence. If deprivation of these earnings would create an undue hardship on the debtor and the family or other dependents the debtor supports, the court may: 1. Order all or a portion of the personal earnings exempt; or 2. In the case of a continuing earnings garnishment pursuant to Section 1173.4 of Title 12 of the Oklahoma Statutes, exempt all or a portion of the personal earnings withheld within the thirty (30) days preceding the filing of the claim for exemption or modify or stay the garnishment for a period of time not to exceed the remainder of the term of the garnishment.
All

Undue hardship

At defendant's request at enforcement Not provided for Determined by judge after hearing Yes

1. Order all or a portion of the personal earnings exempt; or
2. In the case of a continuing earnings garnishment pursuant to Section 1173.4 of Title 12 of the

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Oklahoma Statutes, exempt all or a portion of the personal earnings withheld within the thirty (30) days preceding the filing of the claim for exemption or modify or stay the garnishment for a period of time not to exceed the remainder of the term of the garnishment.

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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.

All

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.

All

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.

All

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.

All

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.

All

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.