Data Explorer: Ability to pay | 50 State Criminal Justice Debt Tool

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
Add to Dashboard + Create New	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 + See more 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
Add to Dashboard + Create New	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 + See more perfect such appeal.	All	Indigent	Not provided for	Not provided for	Other	Yes	Waive filing fee
Add to Dashboard + Create New	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 + See more 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
Add to Dashboard + Create New	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 + See more 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
Add to Dashboard + Create New	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 + See more 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
Add to Dashboard + Create New	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 + See more 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.
Add to Dashboard + Create New	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 + See more 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.
Add to Dashboard + Create New	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 + See more 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.
Add to Dashboard + Create New	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 + See more 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
Add to Dashboard + Create New	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 + See more 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.
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 39-13-101(b)(2)	Assault - Domestic Abuse	if the relationship between the defendant and the victim of the assault is such that the victim is a domestic abuse victim as defined in § 36-3-601, and if, as + See more determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200).	Misdemeanor	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Before imposition of fine or fee	Burden on defendant to show inability to pay	Determined by judge after hearing	Yes	Imposition of a lower fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 39-13-102(e)(2)	Aggravated Assault - Domestic Abuse	In addition to any other punishment that may be imposed for a violation of this section, if the relationship between the defendant and the victim of the assault is such + See more that the victim is a domestic abuse victim as defined in § 36-3-601, and if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200).	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Before imposition of fine or fee	Burden on defendant to show inability to pay	Determined by judge after hearing	Yes	Imposition of a lower fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 39-13-111(c)(5)	Domestic Assault - Additional Fee	In addition to any other punishment that may be imposed for a violation of this section, if, as determined by the court, the defendant possesses the ability to pay a + See more fine in an amount not in excess of two hundred twenty-five dollars ($225), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred twenty-five dollars ($225).	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Before imposition of fine or fee	Burden on defendant to show inability to pay	Determined by judge after hearing	Yes	Imposition of a lower fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 39-13-709(e)	Sex Offender Conviction Tax	The court may waive all or any portion of the tax required by this section if the court finds that a person convicted of a sex offense is indigent or + See more financially unable to pay.	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Not provided for	Burden on defendant to show inability to pay	Determined by judge after hearing	No	Reduction or waiver of the fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 39-17-428(d)	Fines and Penalties; Mandatory Minimums; Allocation	(1) Unless the judge, using the applicable criteria set out in § 40-14-202(c), determines that a person convicted of violating this section is indigent, or that payment of the minimum + See more fine would result in a severe economic hardship, or such fine would otherwise not be in the interests of justice, the minimum fines imposed by this section shall be mandatory and shall not be reduced, suspended, waived or otherwise released by the court. No plea agreement shall be accepted by a court if the agreement attempts to reduce or suspend all or any portion of the mandatory fines imposed by this section unless the judge determines that one (1) of the conditions set out in the first sentence of this subdivision (d)(1) exists.(2) If the judge of a court of general sessions determines that it is necessary to reduce, suspend, waive or otherwise release the minimum fines imposed by this section, the judge shall assess the fine, and write on the warrant the amount of the fine, the fact that it is reduced, suspended, waived or released and the reasons for the reduction, suspension, waiver or release. If done by the judge of a court of record, the judge shall assess the fine and make a specific finding of fact on the record relative to the reduction, suspension, waiver or release and the reasons for the reduction, suspension, waiver or release.	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Not provided for	Burden on defendant to show inability to pay	Determined by judge after hearing	Yes	Reduction or waiver of the fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 40-39-305(b)	Sexual Offender Fee	The department may waive all or any portion of the fees required by this section if it determines that an offender is indigent or financially unable to pay all or + See more any portion of the fee. The department shall waive only that portion of the surcharge which the offender is financially unable to pay.	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	Not provided for	Burden on defendant to show inability to pay	Determined by judge after hearing	No	Reduction or waiver of the fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 41-2-128(5)	Prisoners who may apply for release -- Procedure.	(5)(A) The judge shall, at the time of sentencing, cause the sentencing order to reflect the defendant's cost of incarceration and treatment and shall affix to the order, taking into + See more consideration the defendant's ability to pay, the time and manner in which the costs are to be paid. The court shall enter the necessary orders requiring that the costs of incarceration and treatment be paid or secured, including, but not limited to, orders of probation that include, as a condition thereof, the payment of costs covered by this subdivision (c)(5).(B) When a defendant alleges inability to pay pursuant to the terms set out by the order, the defendant may petition the court for modification as to the terms of payment. When it is determined that the defendant is unable to pay the entirety of the costs covered by this subdivision (c)(5) in the time and manner imposed by the court, any costs imposed against the defendant shall be pursuant to a schedule promulgated by the chief administrative officer of the county, or the officer's designee, with the schedule to be based upon the defendant's ability to pay the same.(C) In promulgating the schedule governing costs and the amount thereof to be paid by the defendant, the chief administrative officer of the county, or the officer's designee, shall consider the defendant's ability to pay and the disbursement schedule set forth in § 41-2-129 and shall incorporate payments ordered in this subsection (c) into the schedule.(D) In no event shall a person be denied access to this program or be denied discharge from incarceration as a result of that person's inability to pay.	All	Not provided for	Not provided for	Burden on defendant to show inability to pay	Not provided for	Yes	Reduction or waiver of the fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 8-21-401(m)	Fees for particular services	(m) Indigent parties. No clerk shall be permitted to collect any fee authorized by this section without permitting any person the opportunity to institute a cause of action by means + See more of a pauper's oath, in accordance with Rule 29 of the Rules of the Tennessee Supreme Court.	All	Not provided for	At enforcement of fine or fee	Burden on defendant to show inability to pay	Not provided for	Yes	Not specified
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 40-15-105(a)(2)(F)	Memoranda of Understanding	(a)(2) Prosecution of the defendant shall not be suspended unless the parties in the memorandum of understanding also agree that the defendant observe one (1) or more of the following + See more conditions during the period in which the prosecution is suspended: . . . (F) That the defendant pay, in addition to the payment of ten dollars ($10.00) per month required by this section, any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner based upon the defendant's ability to pay;	All	Not provided for	Not provided for	Burden on defendant to show inability to pay	Not provided for	Yes	Reduction or waiver of the fee
Add to Dashboard + Create New	Tennessee	Tenn. Code Ann. § 40-24-104	Nonpayment; Crimes and Offenses	(a) If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring + See more into and making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.(b) Whenever a court orders a defendant to pay a fine, imposed as a result of a traffic violation, in installment payments, the court shall revoke the defendant's privilege to operate a motor vehicle in this state upon the failure of the defendant to comply with the order of the court. If the defendant's privilege to operate a motor vehicle has been revoked for the failure to comply with the court order, the privilege shall remain so revoked until the total amount of the fine imposed is paid.	All	No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other + See more mitigating and enhancing factors.	At enforcement of fine or fee	Burden on defendant to show inability to pay	Determined by judge after hearing	No	A reduction of a fine or any other alternative mechanism available to the court

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