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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Alaska Alaska Stat. Ann. § 12.55.051(c) Enforcement of Fines and Restitution

A defendant who has been sentenced to pay a fine or restitution may request a hearing regarding the defendant's ability to pay the fine or restitution at any time that

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the defendant is required to pay all or a portion of the fine or restitution. The court may deny the request if it has previously considered the defendant's ability to pay and the defendant's request does not allege changed circumstances. If, at a hearing under this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order. The court may not reduce an order of restitution but may change the payment schedule.

All

"Defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution."

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

Reduction of fine; modification of fee schedule; or any other modification the Court thinks appropriate.

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Alaska Alaska Stat. Ann. § 18.85.120 Determination of Indigency; Repayment

(a) The determination of a person's indigency shall be made by the court in which an action against the person is pending. The determination shall be made by the court

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and shall set out the basis for the finding that the person is indigent. (b) In determining whether a person is indigent and in determining the extent of the person's inability to pay, the court shall consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents. Release on bail does not preclude a finding that a person is indigent. In each case, the person, subject to the penalties for perjury, shall certify under oath, and in writing or by other record, material factors relative to the person's financial resources and ability to pay that the court prescribes.

All

"The court shall consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents."

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No Not provided for
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Alaska Alaska Stat. Ann. § 12.55.039(b) Surcharge

A court may not fail to impose the surcharge required under this section. The surcharge may not be waived, deferred, or suspended. A court may allow a defendant who is

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unable to pay the surcharge required to be imposed under this section to perform community work under AS 12.55.055(c) in lieu of the surcharge.

All

"Unable to pay the surcharge."

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

Community Service

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Alaska Alaska Stat. § 12.55.045(g),(j),(k) Restitution and Compensation

(g) The court may not, in ordering the amount of restitution, consider the defendant’s ability to pay restitution; (j)  A defendant who is convicted of an offense for which restitution may be

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ordered shall submit financial information as ordered by the court. The Alaska Court System shall prepare a form, in consultation with the Department of Law, for the submission of the information; the form must include a warning that submission of incomplete or inaccurate information is punishable as unsworn falsification in the second degree under AS 11.56.210. A defendant who is convicted of (1) a felony shall submit the form to the probation office within 30 days after conviction, and the probation officer shall attach the form to the presentence report, or (2) a misdemeanor shall file the form with the defendant’s response or opposition to the restitution amount. The defendant shall provide a copy of the completed form to the prosecuting authority;  (k)  The court, on its own motion or at the request of the prosecuting authority or probation officer, may order a defendant on probation who has been ordered to pay restitution to submit financial information to the court using the form specified in (j) of this section. The defendant shall file the completed form with the court within five days after the court’s order. The defendant shall provide a copy of the completed form to the prosecuting authority and the person’s probation officer, if any.

All Not provided for Not provided for Not provided for Not provided for No Not provided for
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Alaska Alaska Stat. § 18.85.155(a) Payment by Municipality

When a municipality prosecutes a person who has been determined by the court to be indigent under AS 18.85.120 for a violation of a municipal ordinance that is a serious crime, the

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municipality shall pay for the services of the attorney appointed by the court to defend the indigent person.

All

"Indigent under AS 18.85.120"

Not provided for Not provided for Not provided for Yes

The municipality shall pay for the services of the attorney appointed by the court to defend the indigent person.

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Alaska Alaska Stat. § 33.30.028(b) Responsibility for Costs of Medical Care

The commissioner shall require prisoners who are without resources under (a) of this section to pay the costs of medical, psychological, and psychiatric care provided to them by the department.

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At a minimum, the prisoner shall be required to pay a portion of the costs based upon the prisoner’s ability to pay.

All Not provided for Not provided for Not provided for Administrative decision No

Required to pay a portion of the costs.

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Alaska Alaska Stat. § 12.55.100(f) Conditions of Probation

 

While on probation and as a special condition of probation for an offense where the aggravating factor provided in AS 12.55.155(c)(29) has been proven or admitted, the court shall require that the

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defendant submit to electronic monitoring. Electronic monitoring under this subsection must provide for monitoring of the defendant’s location and movements by Global Positioning System technology. The court shall require a defendant serving a period of probation with electronic monitoring as provided under this subsection to pay all or a portion of the costs of the electronic monitoring, but only if the defendant has sufficient financial resources to pay the costs or a portion of the costs. A defendant subject to electronic monitoring under this subsection is not entitled to a credit for time served in a correctional facility while the defendant is on probation. In this subsection, “correctional facility” has the meaning given in AS 33.30.901.

All

"Sufficient financial resources to pay the costs or a portion of the costs."

Not provided for Not provided for Not provided for No Not provided for
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Alaska Alaska Stat. § 09.19.010 Limitation on Exemption From Filing Fees

(c)  Based on the submission under (b) of this section, the court may grant an exemption from part of the applicable filing fees if the court finds that exceptional circumstances

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prevent the prisoner from paying full filing fees. Imprisonment and indigency do not constitute exceptional circumstances if the prisoner has available income or resources that can be applied to the filing fee; (d)  If the court orders an exemption under (c) of this section, the court shall determine the amount of the exemption and set a filing fee to be paid by the prisoner. In setting the fee, the court, at a minimum, shall require the prisoner to pay filing fees equal to 20 percent of the larger of the average monthly deposits made to the prisoner’s account described in (b)(2) of this section, or the average balance in that account, not to exceed the amount of the full filing fee required under applicable court rules.

All

"Exceptional circumstances prevent the prisoner from paying full filing fees"

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

Fee is recalculated based on prisoner's resources.

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Delaware 10 Del. C. §8603(a) Nonpayment of Costs

When a defendant who is required to pay the costs of defense defaults in the payment thereof or of any installment, the court on motion of the Attorney General or

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upon its own motion may require the defendant to show cause why the default should not be treated as contempt of court, and may issue a rule or order to show cause why such default should not be treated as contempt of court, and may take such further actions as the court determines to produce the defendant before the court.

All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Additional Time for Payment; Reducing Payment or Installment Amount; Revoking Payment in Whole or Unpaid Part.

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Delaware 10 Del. C. §8603(d) Nonpayment of Costs

If it appears to the satisfaction of the court that the default in the payment of defense costs is not contempt, the court may enter an order allowing the defendant

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additional time for payment, reducing the amount thereof or of each installment, or revoking such payment or the unpaid portion thereof in whole or in part.

All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Additional Time for Payment; Reducing Payment or Installment Amount; Revoking Payment in Whole or Unpaid Part.

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Delaware 10 Del. C. §8601(d) Recoupment of Costs

A defendant who has been required to pay the costs of defense and who is not in contumacious default in the payment thereof may at any time petition the court

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for remission of the payment of such costs, 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 immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment.

All

"Will impose manifest hardship on the defendant or immediate family."

At defendant's request at enforcement Burden on defendant to show inability to pay Determined by judge without hearing No

Remission of All or Part of Fee.

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Delaware 10 Del. C. § 8601(c) Recoupment of Costs

The court shall not require a defendant to pay the costs of defense unless the defendant is, or will be, able to pay them. In determining the amount and method

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of payment of such costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

All

"The court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose."

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Defendant Not Required to Pay.

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Washington Wash. Rev. Code Ann 69.50.430 Additional fine for certain felony violations

(1) Every adult offender convicted of a felony violation of RCW 69.50.401 through 69.50.4013, 69.50.4015, 69.50.402, 69.50.403, 69.50.406, 69.50.407, 69.50.410, or 69.50.415 must be fined one thousand dollars in addition

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to any other fine or penalty imposed. Unless the court finds the adult offender to be indigent, this additional fine may not be suspended or deferred by the court.


(2) On a second or subsequent conviction for violation of any of the laws listed in subsection (1) of this section, the adult offender must be fined two thousand dollars in addition to any other fine or penalty imposed. Unless the court finds the adult offender to be indigent, this additional fine may not be suspended or deferred by the court.


(3) In addition to any other civil or criminal penalty, every person who violates or causes another to violate RCW 69.50.401 by distributing, dispensing, manufacturing, displaying for sale, offering for sale, attempting to sell, or selling to a purchaser any product that contains any amount of any synthetic cannabinoid, as identified in RCW 69.50.204, must be fined not less than ten thousand dollars and not more than five hundred thousand dollars. If, however, the person who violates or causes another to violate RCW 69.50.401 by distributing, dispensing, manufacturing, displaying for sale, offering for sale, attempting to sell, or selling any product that contains any amount of any synthetic cannabinoid, as identified in RCW 69.50.204, to a purchaser under the age of eighteen, the minimum penalty is twenty-five thousand dollars if the person is at least two years older than the minor. Unless the court finds the person to be indigent, this additional fine may not be suspended or deferred by the court.

All

Indigent

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

Suspended or defer additional fine

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Washington Wash. Rev. Code Ann 10.73.160(4) Court fees and costs

A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment may at any time after release from total confinement petition the

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court that sentenced the defendant or juvenile offender for remission of the payment of costs or of any unpaid portion. If it appears to the satisfaction of the sentencing court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the sentencing court may remit all or part of the amount due in costs, modify the method of payment under RCW 10.01.170, or convert the unpaid 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. Manifest hardship exists where the defendant or juvenile offender is indigent as defined in RCW 10.101.010(3) (a) through (c).

All

Manifest hardship on the defendant or defendant's immediate family; indigent.

At defendant's request at enforcement Not provided for Not provided for No

Court may remit all or part of the amount due in costs, modify the method of payment, or convert the unpaid costs to community restitution hours.

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Washington Wash. Rev. Code Ann 10.01.160(3)-(4) Costs — What constitutes — Payment by defendant — Procedure — Remission — Medical or mental health treatment or services

(3) The court shall not order a defendant to pay costs if the defendant at the time of sentencing is indigent as defined in RCW 10.101.010(3) (a) through (c). In

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determining the amount and method of payment of costs for defendants who are not indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.


(4) A defendant who has been ordered to pay costs and who is not in contumacious default in the payment thereof may at any time after release from total confinement petition the sentencing court for remission of the payment of costs 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 defendant’s immediate family, the court may remit all or part of the amount due in costs, modify the method of payment under RCW 10.01.170, or convert the unpaid 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. Manifest hardship exists where the defendant is indigent as defined in RCW 10.101.010(3) (a) through (c).

All

able to pay - based upon hardship

At defendant's request at enforcement Not provided for Not provided for No

Court may remit all or part of the amount due in costs, modify the method of payment, or convert the unpaid costs to community restitution hours.

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Washington Wash. Rev. Code Ann. § 10.101.020 Determination of indigency — Provisional appointment — Promissory note

(1) A determination of indigency shall be made for all persons wishing the appointment of counsel in criminal, juvenile, involuntary commitment, and dependency cases, and any other case where the right

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to counsel attaches. The court or its designee shall determine whether the person is indigent pursuant to the standards set forth in this chapter.

(2) In making the determination of indigency, the court shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel shall not be denied to the person because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.

(3) The determination of indigency shall be made upon the defendant’s initial contact with the court or at the earliest time circumstances permit. The court or its designee shall keep a written record of the determination of indigency. Any information given by the accused under this section or sections shall be confidential and shall not be available for use by the prosecution in the pending case.

(4) If a determination of eligibility cannot be made before the time when the first services are to be rendered, the court shall appoint an attorney on a provisional basis. If the court subsequently determines that the person receiving the services is ineligible, the court shall notify the person of the termination of services, subject to court-ordered reinstatement.

(5) All persons determined to be indigent and able to contribute, shall be required to execute a promissory note at the time counsel is appointed. The person shall be informed whether payment shall be made in the form of a lump sum payment or periodic payments. The payment and payment schedule must be set forth in writing. The person receiving the appointment of counsel shall also sign an affidavit swearing under penalty of perjury that all income and assets reported are complete and accurate. In addition, the person must swear in the affidavit to immediately report any change in financial status to the court.

(6) The office or individual charged by the court to make the determination of indigency shall provide a written report and opinion as to indigency on a form prescribed by the office of public defense, based on information obtained from the defendant and subject to verification. The form shall include information necessary to provide a basis for making a determination with respect to indigency as provided by this chapter.

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Indigent - court shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other

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circumstances presented to the court which are relevant to the issue of indigency.

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

N/A

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Washington Wash. Rev. Code Ann. § 9.94A.750 Restitution

(1) If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days. The court may continue the hearing beyond

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the one hundred eighty days for good cause. The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered. The court shall not issue any order that postpones the commencement of restitution payments until after the offender is released from total confinement. The court should take into consideration the total amount of the restitution owed, the offender’s present, past, and future ability to pay, as well as any assets that the offender may have. An offender’s inability to make restitution payments while in total confinement may not be the basis for a violation of his or her sentence unless his or her inability to make payments resulted from a refusal to accept an employment offer to a class I or class II job or a termination for cause from such a job.

(2) During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule. The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change. The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances. 

All

Consideration the total amount of the restitution owed, the offender’s present, past, and future ability to pay, as well as any assets that the offender may have; change in circumstances.

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

Change to the schedule of payment, reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances.

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Washington Wash. Rev. Code Ann. § 9.94A.777(1) Legal financial obligations — Defendants with mental health conditions

Before imposing any legal financial obligations upon a defendant who suffers from a mental health condition, other than restitution or the victim penalty assessment under RCW 7.68.035, a judge must

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first determine that the defendant, under the terms of this section, has the means to pay such additional sums.

All

means to pay - for defendants who suffer from mental conditions ONLY.

Before imposition of fine or fee Not provided for Not provided for Yes Not provided for
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Washington Wash. Rev. Code Ann 9.94A.780(1) Offender supervision intake fees

The department may exempt or defer a person from the payment of all or any part of the intake fee based upon any of the following factors:(a) The offender has

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diligently attempted but has been unable to obtain employment that provides the offender sufficient income to make such a payment. (b) The offender is a student in a school, college, university, or a course of vocational or technical training designed to fit the student for gainful employment. (c) The offender has an employment handicap, as determined by an examination acceptable to or ordered by the department. (d) The offender's age prevents him or her from obtaining employment. (e) The offender is responsible for the support of dependents and the payment of the intake fee constitutes an undue hardship on the offender. (f) Other extenuating circumstances as determined by the department.

All

Multifactor test: income insufficient for payment, status as student, employment handicap, age, dependents, and other extenuating circumstances

Not provided for Not provided for Administrative decision No

Exemption or deferral of payment

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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.