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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Arizona Ariz. Rev. Stat. Ann. § 13-804.01(B)(2) Reimbursement of Incarceration Costs; Misdemeanors B. The court may determine the amount of incarceration costs to be paid based on the following factors:2. The person's ability to pay part or all of the incarceration costs. Misdemeanor Not provided for Before imposition of fine or fee Not provided for Not provided for No

A lower cost based upon the defendant's ability to pay.

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Arizona Ariz. Rev. Stat. Ann. § 13-914(E)(2) Intensive probation; evaluation; sentence; criteria; limit; conditions
Paying restitution and probation fees of not less than seventy-five dollars unless, after determining the inability of the offender to pay the fee, the court assesses a lesser fee. Probation
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fees shall be deposited in the adult probation services fund established by § 12-267. Any amount assessed pursuant to this paragraph shall be used to supplement monies used for the salaries of adult probation and surveillance officers and for support of programs and services of the superior court adult probation departments.
All Not provided for Not provided for Not provided for Not provided for No

Lower restitution or fee based upon the defendant's ability to pay.

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Arizona Ariz. Rev. Stat. Ann. § 13-810(E) Consequences of nonpayment of fines, surcharges, fees, assessments, restitution or incarceration costs

(E)If the court finds that the defendant has wilfully failed to pay a fine, a surcharge, a fee, an assessment, restitution or incarceration costs or finds that the defendant has

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intentionally refused to make a good faith effort to obtain the monies required for the payment, the court shall find that the default constitutes contempt and may do any of the following:

1. Order the defendant incarcerated in the county jail until the fine, surcharge, fee, assessment, restitution or incarceration costs, or a specified part of the fine, surcharge, fee, assessment, restitution or incarceration costs, is paid.

2. Refer the defendant for revocation of probation, parole or community supervision as authorized by law.

3. Enter an order pursuant to section 13-812. The levy or execution for the collection of a fine, a surcharge, a fee, an assessment, restitution or incarceration costs does not discharge a defendant who is incarcerated for nonpayment of the fine, surcharge, fee, assessment, restitution or incarceration costs until the amount of the fine, surcharge, fee, assessment, restitution or incarceration costs is collected.

4. Order the defendant to perform community restitution.

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

Modified payment arrangements

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Arizona Ariz. Rev. Stat. Ann. § 13-824(A) Community restitution in lieu off monetary obligation

A. Notwithstanding any other law, if a monetary obligation is imposed on a defendant at sentencing and the court finds the defendant is unable to pay all or part of the monetary obligation, the

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court may order the defendant to perform community restitution in lieu of the payment for all or part of the monetary obligation. The amount of community restitution shall be equivalent to the amount of the monetary obligation by crediting any service performed at a rate of ten dollars per hour.

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

Community Restitution

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Arizona Ariz. Rev. Stat. Ann. § 12-116.01(F) Surcharges; remittance reports; fund deposits

The judge may waive all or part of the civil penalty, fine, forfeiture and surcharge, except for mandatory civil penalties and fines, the payment of which would work a hardship

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on the persons convicted or adjudicated or on their immediate families. If a fine or civil penalty is mandatory, the judge may waive only all or part of the surcharges prescribed by subsections A, B and C of this section and § 12-116.02. If a fine or civil penalty is not mandatory and if a portion of the civil penalty, fine, forfeiture and surcharge is waived or suspended, the amount assessed must be divided according to the proportion that the civil penalty, fine, bail or bond and the surcharge represent of the total amount due.

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

A lower cost fine or fee based upon the defendant's ability to pay.

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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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Wyoming Wyo. Stat. Ann. § 7-13-421(b),(d) Restitution as condition of parole.

(b) The board shall provide for restitution in the amount determined by the court pursuant to W.S. 7 9 103 unless the board finds the parolee is not reasonably capable

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of making the payments, in which case the board may modify the amount of restitution to be paid, taking into account the factors enumerated in W.S. 7 9 106.

(d) The board may waive the payment of some or all of the restitution as a condition of parole if it finds the payment of some or all of the restitution will work an undue hardship on the parolee or his family. Victims who have requested to receive notification pursuant to W.S. 1 40 204(f) of information authorized to be released pursuant to W.S. 1 40 204(d) shall be given notice and an opportunity to be heard prior to the board making a decision to waive some or all of the restitution under this subsection.

All

Parolee is not reasonably capable of making the payments; undue hardship on the parolee or his family

At enforcement of fine or fee Not provided for Administrative decision Yes

Modify the amount of restitution to be paid; waive all or some of restituion as condition of parole.

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Wyoming Wyo. Stat. Ann. § 7-9-102 Order to pay upon conviction

In addition to any other punishment prescribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined

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under W.S. 7 9 103 and 7 9 114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

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

Restituion not ordered

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Wyoming Wyo. Stat. Ann. § 7-6-106 Determination of need; reimbursement for services

(a) The determination of whether a person covered by W.S. 7 6 104 is a needy person shall be deferred until his first appearance in court or in a suit

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for payment or reimbursement under W.S. 7 6 108, whichever occurs earlier. Thereafter, the court shall determine, with respect to each proceeding, whether he is a needy person. For purposes of this section, an appeal, probation revocation or proceeding to correct or modify a sentence is a separate proceeding. The determination of need shall be based on a separate application submitted at the time of each proceeding.

(b) In determining whether a person is a needy person and in determining the extent of his inability to pay, and, in the case of an unemancipated minor, the inability to pay of his custodial parent or another person who has a legal obligation of support, the court shall consider the standards set forth in Rule 44(d), Wyoming Rules of Criminal Procedure. Release on bail does not necessarily prevent a person from being determined to be needy. In each case the person, subject to the penalties for perjury, shall certify in writing, or by other record, the material factors relating to his ability to pay as the court prescribes.

(c) In every case in which a person has received services under W.S. 7 6 104, the presiding judge shall determine whether the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any funds towards payment of part or all of the cost associated with such services. If the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is not able to provide any funds towards payment of costs, the court shall enter a specific finding on the record. If the court determines the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any amount as reimbursement, the court shall order the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, to reimburse the state for all or part of the costs of the services provided or shall state on the record the reasons why an order for reimbursement was not entered. Where a person is initially provided with counsel pursuant to W.S. 7 6 105(a), but subsequently retains private counsel, the court may order the person to reimburse the state for the services already provided. All reimbursements under this act shall be made through the clerk of court.

(d) The state public defender shall report in the agency's annual report concerning: (i) The number of cases by court in which an attorney was appointed to represent a person at public expense under this act during the preceding calendar quarter; (ii) For each case in which an attorney was appointed, whether the court ordered reimbursement under this section or, if reimbursement was not ordered, whether the court complied with subsection (c) of this section; (iii) For the guardian ad litem program, the number of cases, the amount of monies expended and the amounts of reimbursements from participating counties.

(e) If the court orders release on bail pending trial or appeal, probation before sentence, suspended sentence or probation, the court shall order the needy person as a condition of bail, sentence or probation to repay the state for expenses and services provided by appointed attorneys pursuant to the state public defender's standard fee schedule if the court determines the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Wyo. R. Crim. P. 44(d): In making a determination of eligibility, the judicial officer shall consider: (1) The probable cost of representation given the number and severity of the offenses

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charged and the factual and legal complexity of the case. (2) The defendant's income from all sources and the defendant's capacity to earn income. (3) The expenses of the defendant's household and whether a spouse or roommate contributes or ought to contribute to those expenses. (4) The defendant's responsibility for the support of others. (5) The defendant's assets whether held individually or with others. (6) The defendant's debts and the periodic payments due on the debts. (7) The defendant's capacity to borrow money. Uncertainty as to a defendant's eligibility for appointed counsel should be resolved in the defendant's favor. An erroneous determination of eligibility may be corrected at any time.

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

N/A

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Wyoming Wyo. Stat. Ann. § 7-9-103(c) Determination of amount owed; execution

The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not

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entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determination.

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes Not provided for
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Wyoming Wyo. Stat. Ann. § 7-11-402(a) Subpoena of witnesses for indigent defendants

(a) Upon application of a defendant and upon a satisfactory showing that the defendant is financially unable to pay the fees of a witness and that the presence of the

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witness is necessary to an adequate defense, the court shall order that a subpoena be issued for service on a named witness and order that all fees and costs incurred be paid as provided by subsection (b) of this section.

(b) If the court orders a subpoena to be issued under this section, the costs incurred and the fees of the witness so subpoenaed shall be paid by the public defender's office.

All Not provided for At enforcement of fine or fee Not provided for Determined by judge without hearing No

Fees of the witness so subpoenaed shall be paid by the public defender's office

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Wyoming Wyo. Stat. Ann. § 7-11-505 Payment of costs of prosecution

Payment of the costs of prosecution may be added to and made a part of the sentence in any felony or misdemeanor case if the court determines that the defendant

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has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

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

Payment of the costs of prosecution not added to and made a part of the sentence in any felony or misdemeanor case

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Wyoming Wyo. Stat. Ann. § 7-13-109(a) Payment of jail costs by inmate

(a) In addition to any other punishment prescribed by law, the sentencing court may require a person sentenced to confinement in county jail, for any offense, to pay the jail

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facility the costs of room and board for each day of incarceration, both before and after conviction. The costs for room and board for each day of incarceration shall be an amount equal to the actual cost of the services as determined by the county sheriff. The cost of the services shall be paid to all jail facilities where the inmate may have been held before and after conviction. The costs shall not be assessed if:

(i) The court finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay; or

(ii) In the judgment of the court, the costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate's family.

All

Costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate's family

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

Costs for room and board for each day of incarceration not imposed.

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Wyoming Wyo. Stat. Ann. § 7-13-1301(a)(iv) Definitions

(iv) "Qualified offender" means a person convicted of a felony whom the court finds has a need for alcohol or other drug treatment. The payment amount required of the offender

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for treatment shall be based on the ability of the offender to pay as established on a sliding fee scale pursuant to rules and regulations adopted by the department of health and may, at the discretion of the court, be paid through delayed or installment payments. In determining an offender's ability to pay the court may consider present circumstances as well as reasonable future potential;

Felony

Not provided for (court may consider present circumstances as well as reasonable future potential).

Not provided for Not provided for Determined by judge without hearing Yes

Fee imposed based on sliding fee scale pursuant to rules and regulations adopted by the department of health; installment payments.

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Wyoming Wyo. Stat. Ann. § 5-6-202(b) Powers and duties of municipal judge generally; court to open every day except Sunday

(b) The municipal judge shall enforce due obedience to all orders, rules and judgments made by him. The judge has the same power as the district court in the issuance

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of warrant, search warrant, subpoena or other necessary process and may fine or imprison for contempt offered to him or to process issued by him in the same manner and to the same extent as the district court. Before any person is imprisoned for the willful refusal to pay a fine, the court shall determine whether the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison  for the willful refusal to pay a fine

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Wyoming Wyo. Stat. Ann. § 5-6-301(b) Punishment of persons convicted before judge; maximum penalty permitted; power to punish for contempt.

(b) The municipal judge shall punish for contempt in the same manner as district court. Before any person is imprisoned for the willful refusal to pay a fine, the court

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shall determine whether the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison for the willful refusal to pay a fine.

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Wyoming Wyo. Stat. Ann. § 6-10-105 Commitment for refusal to pay fine or costs; rate per day

A person committed to jail for willfully refusing to pay a fine or costs may be imprisoned if the court determines that the defendant has an ability to pay or

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that a reasonable probability exists that the defendant will have an ability to pay, until the imprisonment, at the rate of fifteen dollars ($15.00) per day, equals the amount of the fine or costs, or the amount shall be paid or secured to be paid when he is discharged.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison for failure to pay fine.