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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New York N.Y. Penal Law § 80.00 Fine for felony
When imposing a fine pursuant to the provisions of this paragraph, the court shall consider the profit gained by defendant's conduct, whether the amount of the fine is disproportionate to
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the conduct in which defendant engaged, its impact on any victims, and defendant's economic circumstances, including the defendant's ability to pay, the effect of the fine upon his or her immediate family or any other persons to whom the defendant owes an obligation of support.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Not specified

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New York N.Y. Correct. Law § 201(9) Authority and responsibility for community supervision
The department shall waive all or part of such fee where, because of the indigence of the offender, the payment of said fee would work an unreasonable hardship on the
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person convicted, his or her immediate family, or any other person who is dependent on such person for financial support.
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payment of said fee would work an unreasonable hardship on the person convicted, his or her immediate family, or any other person who is dependent on such person for financial

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support.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Exec. Law § 257-c Probation administrative fee
The department shall waive all or part of such fee where, because of the indigence of the offender, the payment of said surcharge would work an unreasonable hardship on the
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person convicted, his or her immediate family, or any other person who is dependent on such person for financial support.
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payment of said surcharge would work an unreasonable hardship on the person convicted, his or her immediate family, or any other person who is dependent on such person for financial

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support.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Correct. Law § 189(2) Disposition of moneys paid to prisoner for his labor
The commissioner shall waive the collection of such fee where it is determined that the payment of the fee would work an unreasonable hardship on the prisoner or his or
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her immediate family.
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payment of the fee would work an unreasonable hardship on the prisoner or his or her immediate family.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Veh. & Traf. Law § 1198(5) Installation and operation of ignition interlock devices
The cost of installing and maintaining the ignition interlock device shall be borne by the person subject to such condition unless the court determines such person is financially unable to
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afford such cost whereupon such cost may be imposed pursuant to a payment plan or waived
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the court determines such person is financially unable to afford such cost

Not provided for Not provided for Not provided for No

Waiver or payment plan

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New York N.Y. Crim. Proc. Law § 420.30 Remission of fines, restitution or reparation
a court may waive the crime victim assistance fee if such defendant is an eligible youth as defined in subdivision two of section 720.10 of this chapter, and the imposition of such
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fee would work an unreasonable hardship on the defendant, his or her immediate family, or any other person who is dependent on such defendant for financial support.
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imposition of such fee would work an unreasonable hardship on the defendant, his or her immediate family, or any other person who is dependent on such defendant for financial support.

Not provided for Not provided for Not provided for No

Waiver of fee

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New York N.Y. Crim. Proc. Law § 420.35 Mandatory surcharge and crime victim assistance fee; applicability to sentences mandating payment of fines
When the court directs that the defendant be imprisoned until the mandatory surcharge, sex offender registration fee or DNA databank fee is satisfied, it must specify a maximum period of
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imprisonment not to exceed fifteen days; provided, however, a court may not direct that a defendant be imprisoned until the mandatory surcharge, sex offender registration fee, or DNA databank fee is satisfied or otherwise for failure to pay the mandatory surcharge, sex offender registration fee or DNA databank fee unless the court makes a contemporaneous finding on the record, after according defendant notice and an opportunity to be heard, that the payment of the mandatory surcharge, sex offender registration fee or DNA databank fee upon defendant will not work an unreasonable hardship upon him or her or his or her immediate family.
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unreasonable hardship upon defendant or defendant's immediate family

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Crim. Proc. Law § 420.40 Deferral of a mandatory surcharge; financial hardship hearings
On an appearance date set forth in a summons issued pursuant to subdivision three of section 60.35 of the penal law, section eighteen hundred nine of the vehicle and traffic
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law or section 27.12 of the parks, recreation and historic preservation law, a person upon whom a mandatory surcharge, sex offender registration fee or DNA databank fee was levied shall have an opportunity to present on the record credible and verifiable information establishing that the mandatory surcharge, sex offender registration fee or DNA databank fee should be deferred, in whole or in part, because, due to the indigence of such person the payment of said surcharge, sex offender registration fee or DNA databank fee would work an unreasonable hardship on the person or his or her immediate family.
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an unreasonable hardship on the person or his or her immediate family

At defendant's request at enforcement Burden on defendant to show inability to pay Determined by judge after hearing No

Deferral

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Montana Mont. Code Ann. § 3-1-317(2) User surcharge for court information technology -- exception
If a court determines that a defendant in a criminal case or determines pursuant to 25-10-404 that a party in a civil case is unable to pay the surcharge, the
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court may waive payment of the surcharge imposed by this section.
All Not provided for Not provided for Not provided for Not provided for No

Waive surcharge

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Montana Mont. Code Ann. § 3-1-318(2) Surcharges upon certain criminal convictions -- exception
A court may not waive payment of the surcharge unless the court determines that the defendant is unable to pay the surcharge. Inability to pay must be supported by a
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sworn statement from the defendant demonstrating financial inability to pay without substantial hardship in providing for personal or family necessities. The statement is not admissible in the proceeding unless offered for impeachment purposes and is not admissible in a subsequent prosecution for perjury or false swearing.
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Financial inability to pay without substantial hardship in providing for personal or family necessities

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

Waive surcharge

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and
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amount of restitution after full consideration of the convicted person's ability to pay the restitution.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

Determine amount of restitution accordingly.

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered
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must be made prior to the release of state jurisdiction over the person convicted
All Not provided for At defendant's request at enforcement Burden on defendant to show inability to pay Not provided for No

Modify previous order specifying the amount and manner of restitution.

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Montana Mont. Code Ann. § 46-18-241(3) Condition of Restitution
 If at any time the court finds that, because of circumstances beyond the offender's control, the offender is not able to pay any restitution, the court may order the offender
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to perform community service during the time that the offender is unable to pay. The offender must be given a credit against restitution due at the rate of the hours of community service times the state minimum wage in effect at the time that the community service is performed.
All Not provided for Not provided for Not provided for Not provided for No

Community service payable against restitution owed in amount equal to the minimum wage for each hour worked.

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Montana Mont. Code Ann. § 45-5-206(5) Partner or Family Member Assault -- Penalty
In addition to any sentence imposed under subsections (3) and (4), after determining the financial resources and future ability of the offender to pay restitution as provided for in 46-18-242,
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the court shall require the offender, if able, to pay the victim's reasonable actual medical, housing, wage loss, and counseling costs.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-206(6) Partner or Family Member Assault -- Penalty
In addition to the requirements of subsection (5), if financially able, the offender must be ordered to pay for the costs of the offender's probation, if probation is ordered by
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the court.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-503(5) Sexual intercourse without consent
In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the
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court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available

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Montana Mont. Code Ann. § 45-5-507(6) Incest
In addition to any sentence imposed under subsection (3), (4), or (5), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242,
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the court shall require the offender, if able, to pay the victim's reasonable costs of counseling that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available

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Montana Mont. Code Ann. § 45-5-621(3) Nonsupport
If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. In determining
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ability to pay, after an allowance for the person's minimal subsistence needs, the support of a spouse, child, or other dependent has priority over any other obligations of the person.
Misdemeanor, Felony Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

This is a defense in a nonpayment case

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Montana Mont. Code Ann. § 45-5-621(13) Nonsupport
The court may order that a term of imprisonment imposed under this section be served in another facility made available by the county and approved by the sentencing court. The
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offender, if financially able, shall bear the expense of the imprisonment.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-627(4) Ritual abuse of minor--exceptions--penalty
In addition to any sentence imposed under subsection (3), after determining pursuant to 46-18-242 the financial resources and future ability of the offender to pay restitution, the court shall require
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the offender, if able, to pay the victim's reasonable costs of counseling that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available