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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Alabama Ala.Code 1975 § 12-19-182(b) Solicitor's fee
The solicitor's fee shall be collected in all criminal cases where the defendant is adjudged guilty, a bond forfeited, a penalty imposed, or where there is issued any alias or
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capias warrant of arrest. The solicitor's fee shall be in addition to and not in lieu of any other fees or costs. The solicitor's fee shall not be waived or remitted unless the defendant proves to the reasonable satisfaction of the sentencing judge that the defendant is not capable of paying the fee within the reasonable foreseeable future.
All

"capable of paying the fee within the reasonable foreseeable future."

Not provided for Burden on defendant to show inability to pay Not provided for No Not provided for
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Alabama Ala.Code 1975 § 12-23-18 Alcohol and Drug Abuse Court Referral and Treatment Program: Waiver of fees

Any person determined to be indigent by the court may request waiver of all or part of the fees established by this chapter. In such cases where a waiver of

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fees is granted, such waiver shall be limited to the time when the offender is unable to pay. If the offender becomes able to pay during the course of monitoring or treatment, or another future date, the waiver of fees may be revoked. The judge may order an indigent offender to perform community service in lieu of payment of fees.

All Not provided for At defendant's request at enforcement Burden on defendant to show inability to pay Not provided for No Not provided for
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Alabama Ala.Code 1975 § 12-17-226.18 Pretrial diversion program: payment of costs

Notwithstanding subsection (c) of Section 12-17-226.10, upon conviction for any criminal offense, felony, misdemeanor, or violation of the Code of Alabama 1975, or ordinance violation, any fees or costs shall

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not be waived or remitted unless the defendant or party responsible for paying the fees proves to the reasonable satisfaction of the presiding or sentencing judge that the defendant or party is not capable of paying the fees or costs within the reasonably foreseeable future.

All

"capable of paying the fees or costs within the reasonably foreseeable future"

Not provided for Not provided for Not provided for No Not provided for
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Alabama Al. R. Cr. P. 26.11(b) Fines and Restitution: Imposition of Fine

(b) IMPOSITION OF FINE. If the court is given authority to impose a fine, in determining whether to impose a fine, the court should consider:(1) Whether there are particular reasons

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which make a fine appropriate as punishment for the defendant; (2) The financial resources and obligations of the defendant and the burden that payment of a fine will impose; (3) The ability of the defendant to pay a fine forthwith on an installment basis or on other conditions to be fixed by the court; (4) The extent to which payment of a fine will interfere with the ability of the defendant to make restitution or reparation to the victim of the crime; and (5) The amount of gain derived by the defendant or loss sustained by the victim as a result of defendant's commission of the offense, which amount shall be determined by the court from evidence presented at the sentence hearing if not stipulated by the parties.

All Not provided for Not provided for Not provided for Not provided for No

(d) If the defendant cannot pay the costs, fine, and/or restitution immediately after pronouncement of the sentence as preferred, the court may permit payment of the costs, fine, and/or restitution,

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at some later date, or in specified installments. (h) REMEDIES FOR NONPAYMENT OF FINE OR RESTITUTION. If the defendant fails to pay a fine and/or restitution, the court may: (1) Reduce the fine to an amount the defendant is able to pay; (2) Continue or modify the schedule of payments of the fine and/or restitution; (3) Direct that the defendant be incarcerated until the unpaid fine and/or restitution, or any portion thereof, is paid, subject, however, to section (i) of this rule; (4) Order an employer to withhold amounts from wages to pay fines and/or restitution; or (5) Release the defendant from obligation to pay the fine.

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Alabama Ala.Code 1975 § 12-23-7 Drug testing program

Any person who fails to complete treatment and pay for it shall be charged with violation of probation or parole; provided, however, that indigents shall not be required to pay

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for treatment or monitoring provided by court referral officers.

All Not provided for Not provided for Not provided for Not provided for Yes Not provided for
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Alabama Ala.Code 1975 § 12-17-226.8(c) Pretrial diversion program: Assessment of administrative fee; indigence; use of funds.

c)(1) An applicant may not be denied access into the pretrial diversion program based solely on his or her inability to pay pretrial diversion program fees. Fees established by this

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division may be waived or reduced for just cause, including indigency of the applicant.(2) If an offender, upon application, claims indigency, he or she shall be brought before a court of competent jurisdiction for a determination of indigency. In the event that a court determines the offender to be indigent, any fees or costs shall not be waived or remitted unless the defendant or the party responsible for paying any fees or costs proves to the reasonable satisfaction of the judge presiding or sentencing judge that the defendant or party is not capable of paying the same within the reasonably foreseeable future. In the event the offender is determined to be indigent, a periodic review of the offender's indigent status may be conducted by the court upon motion of the district attorney to determine if the offender is no longer indigent.

All Not provided for At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No Not provided for
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Alabama Ala.Code 1975 § 15-12-25(a)(2) Appointed counsel: Payment of fees by defendant.

The court shall not order a defendant to pay the fees of court appointed counsel unless the defendant is or will be able to pay them. In determining the amount

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and method of payment of these fees, the court shall take into account the financial resources of the defendant and the nature of the burden that payment of the fees will impose. A defendant who has been ordered to pay the fees of court appointed counsel and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him or her for remission of the payment of these fees or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the immediate family of the defendant, the court may remit all or part of the amount due in fees or modify the method of payment.

All

"manifest hardship"

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

The court may remit all or part of the amount due in fees or modify the method of payment.

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Alabama Ala. Code 1975 §15-18-68(a)(1) Restitution to victims of crimes: Determination of amount

(a) In determining the manner, method, or amount of restitution to be ordered, the court may take into consideration all of the following: (1) The financial resources of the defendant

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and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant.

All

Not provided for

Not provided for Not provided for Not provided for No

Not provided for

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Alabama Ala. Code 1975 §15-27-12 Expungement of records: Payment in full required

No order of expungement shall be granted unless all terms and conditions, including court ordered restitution, are satisfied and paid in full, including interest, to any victim, or the Alabama

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Crime Victim’s Compensation Commission, as well as court costs, fines, or statutory fees ordered by the sentencing court to have been paid, absent a finding of indigency by the court.

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Indigency

Not provided for Not provided for Administrative decision No

Not provided for

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Alabama Ala. Code 1975 §15-27-4(a)-(b) Expungement of records: Administrative filling fee.

(a) In addition to any cost of court or docket fee for filing the petition in circuit court, an administrative filing fee of three hundred dollars ($300) shall be paid

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at the time the petition is filed and is a condition precedent to any ruling of the court pursuant to this chapter.

(b) Notwithstanding subsection (a), a person seeking relief under this chapter may apply for indigent status by completing an Affidavit of Substantial Hardship and Order which shall be submitted with the petition. If the court finds the petitioner is indigent, the court may set forth a payment plan for the petitioner to satisfy the filing fee over a period of time, which shall be paid in full, prior to any order granting an expungement.

All

Indigent

At defendant's request before imposition of fine or fee Not provided for Administrative decision No

Payment plan 

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Alabama Ala.Code 1975 §15-22-2(a)(1) Payment of costs of supervision.

(a)(1) Any person who is placed on parole by the Board of Pardons and Paroles or any person who is granted probation by a court of competent jurisdiction and who

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is subject to supervision by the Board of Pardons and Paroles and who has an income shall be required to contribute forty dollars ($40) per month toward the cost of his or her supervision and rehabilitation beginning 30 days from the date he or she has an income. The sum shall be deducted by the parolee or probationer from his or her monthly income and delivered to the Board of Pardons and Paroles each month for deposit in the General Fund of the State Treasury. By prior agreement between an employer and employee, an employer may deduct forty dollars ($40) from the monthly net earned income of the parolee or probationer and remit the amount to the Board of Pardons and Paroles each month. The responsibility of assuring the contribution shall remain that of the parolee or probationer. Exemptions from payments required by this section may be granted for undue hardship on a case by case basis by the sentencing court in probation and the Board of Pardons and Paroles in parole cases.

Misdemeanor, Felony

Undue hardship

Not provided for Not provided for Not provided for Yes

Exemption from payment

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Alabama Al. R. Cr. P. 26.11(b), (g) Fines and Restitution: Imposition of Fine and Inquiry into Defendant's Ability to Pay Fine or Restitution

(b) If the court is given authority to impose a fine, in determining whether to impose a fine, the court should consider: (1)  Whether there are particular reasons which make

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a fine appropriate as punishment for the defendant; (2)  The financial resources and obligations of the defendant and the burden that payment of a fine will impose; (3)  The ability of the defendant to pay a fine forthwith on an installment basis or on other conditions to be fixed by the court; (4)  The extent to which payment of a fine will interfere with the ability of the defendant to make restitution or reparation to the victim of the crime; and (5)  The amount of gain derived by the defendant or loss sustained by the victim as a result of defendant's commission of the offense, which amount shall be determined by the court from evidence presented at the sentence hearing if not stipulated by the parties.

(g) If a defendant fails to pay a fine or restitution as directed, the court may inquire and cause an investigation to be made into the defendant's financial, employment, and family standing, and the reasons for nonpayment of the fine and/or restitution, including whether nonpayment of the fine and/or restitution was contumacious or due to indigency.

 

 

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Indigency, 

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

(h) REMEDIES FOR NONPAYMENT OF FINE OR RESTITUTION. If the defendant fails to pay a fine and/or restitution, the court may: (1) Reduce the fine to an amount the defendant

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is able to pay; (2) Continue or modify the schedule of payments of the fine and/or restitution; (3) Direct that the defendant be incarcerated until the unpaid fine and/or restitution, or any portion thereof, is paid, subject, however, to section (i) of this rule; (4) Order an employer to withhold amounts from wages to pay fines and/or restitution; or (5) Release the defendant from obligation to pay the fine.

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California Cal. Veh. Code § 14601.5(e) Driving with suspended license
In imposing the minimum fine required by subdivision (d), the court shall take into consideration the defendant's ability to pay the fine and may, in the interest of justice, and
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for reasons stated in the record, reduce the amount of that minimum fine to less than the amount otherwise imposed.
Traffic

NA

Before imposition of fine or fee Not provided for Not provided for Yes

Court may waive or reduce fine

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California Gov. Code Sec. 68630 The Judicial Council - Waiver of Court Fees and Cost: Legislative findings and declarations

The Legislature finds and declares all of the following:

(a) That our legal system cannot provide "equal justice under law" unless all persons have access to the courts without regard to

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their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees.

(b) That fiscal responsibility should be tempered with concern for litigants' rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services. The procedure for determining if a litigant may file a lawsuit without paying a fee must not interfere with court access for those without the financial means to do so.

(c) That those who are able to pay court fees should do so, and that courts should be allowed to recover previously waived fees if a litigant has obtained a judgment or substantial settlement.

All

1. Applicant receiving public benefits under one or more of the following programs: Supplemental Security Income (SSI) and State Supplementary Payment (SSP), California Work Opportunity and Responsibility to Kids Act

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(CalWORKs), federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program, Supplemental Nutrition Assistance Program, the California Food Assistance Program, County Relief, General Relief (GR), or General Assistance (GA), Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI), In-Home Supportive Services (IHSS), or Medi-Cal. 2. An applicant whose monthly income is 125 percent or less of the current poverty guidelines. 3. An applicant who, as individually determined by the court, cannot pay court fees without using moneys that normally would pay for the common necessaries of life for the applicant and the applicant's family.

Not provided for Not provided for Other Yes

Court can grant an initial fee waiver, require applicant to pay a portion of the fees, require applicant to pay court fees over a period of time, or grant some

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other equitable arrangement.

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California Cal. Gov. Code § 27712(a) Public Defender: Determination of ability to pay for costs of counsel at end of proceedings; Order for payment, and enforcement thereof

(a) In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, or

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upon the withdrawal of the public defender or private counsel, after a hearing on the matter, the court may make a determination of the ability of the party to pay all or a portion of the cost of such legal assistance. Such determination of ability to pay shall only be made after a hearing conducted according to the provisions of Section 987.8 of the Penal Code; except that, in any court where a county financial evaluation officer is available, the court shall order the party to appear before the county financial evaluation officer, who shall make an inquiry into the party’s ability to pay this cost as well as other court-related costs. The party shall have the right to dispute the county financial evaluation officer’s evaluation, in which case he or she shall be entitled to a hearing pursuant to Section 27752. If the party agrees with the county financial evaluation officer’s evaluation, the county financial evaluation officer shall petition the court for an order to that effect. The court may, in its discretion, hold one such additional hearing, or the county financial evaluation officer may hold one such additional evaluation, within six months of the conclusion of the criminal proceedings. If the court determines, or upon petition by the county financial evaluation officer is satisfied, that the party has the ability to pay all or part of the cost, it shall order the party to pay the sum to the county in any installments and manner which it believes reasonable and compatible with the party’s ability to pay. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt.The court, or in a county which has a county financial evaluation officer, the board of supervisors, shall adjudge a standard by which to measure the cost of legal assistance provided, which standard shall reflect the actual cost of legal services provided. Appointed counsel shall provide evidence of the services performed pursuant to such standard.

All

NA

Not provided for Not provided for Determined by judge after hearing Yes

Fee may be reduced

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California Cal. Pen. Code § 1202.5(a) Additional fine upon conviction of specified crimes; Disposition of proceeds

(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or

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Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.

All

NA

Not provided for Not provided for Not provided for No

Court my reduce fine

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California Cal. Pen. Code § 273.65(i) Violation of protective order relating to children

(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a

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determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.

All

NA

Not provided for Not provided for Not provided for Yes

In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to

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the victim or court-ordered child support.

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California Cal. Rules of Court 4.335(c) Ability to pay determinations for infraction offenses

(1) The court, on request of a defendant, must consider the defendant’s ability to pay.

(2) A defendant may request an ability-to-pay determination at adjudication, or while the judgment remains unpaid,

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including when a case is delinquent or has been referred to a comprehensive collection program.

3) The court must permit a defendant to make this request by written petition unless the court directs a court appearance. The request must include any information or documentation the defendant wishes the court to consider in connection with the determination. The judicial officer has the discretion to conduct the review on the written record or to order a hearing.

Misdemeanor Not provided for Not provided for Not provided for Determined by judge without hearing No

Community service; payment plan; waiver or reduction of costs

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California Cal. Pen. Code § 987.8(a)-(c) Determination of assets subject to attachment; Determination and order for payment of costs of counsel; Proceedings; Enforcement

(a) If the court finds that a defendant is entitled to counsel but is unable to employ counsel, the court may hold a hearing or, in its discretion, order the

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defendant to appear before a county officer designated by the court, to determine whether the defendant owns or has an interest in real property or other assets subject to attachment and not otherwise exempt by law. The court may impose a lien on any real property owned by the defendant, or in which the defendant has an interest to the extent permitted by law. The lien shall contain a legal description of the property, shall be recorded with the county recorder in the county or counties in which the property is located, and shall have priority over subsequently recorded liens or encumbrances. The county shall have the right to enforce its lien for the payment of providing legal assistance to an indigent defendant in the same manner as other lienholders by way of attachment, except that a county shall not enforce its lien on a defendant’s principal place of residence pursuant to a writ of execution. No lien shall be effective as against a bona fide purchaser without notice of the lien.

(b) If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

(c) (1) If the defendant hires counsel replacing a publicly provided attorney; in which the public defender or appointed counsel was required by the court to proceed with the case after a determination by the public defender that the defendant is not indigent; or, in which the defendant, at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.

(2) This subdivision applies to a county only upon the adoption of a resolution by the board of supervisors to that effect.

All

(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her,

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and shall include, but not be limited to, all of the following: (A) The defendant's present financial position. (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.

Not provided for Not provided for Not provided for Yes

NA

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California Cal. Pen. Code § 273d(c)(3)(B) Infliction of corporal punishment or injury on child resulting in traumatic condition; Enhancement; Conditions of probation

(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation

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be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

Felony

NA

Not provided for Not provided for Not provided for No

If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.