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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Arkansas Ark. Code Ann. § 5-4-205(e)(2);(f)(3) Restitution

(e)(2)In determining the method of payment, the court shall take into account: (A) The financial resources of the defendant and the burden that payment of restitution will impose with regard

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to another obligation of the defendant; (B) The ability of the defendant to pay restitution on an installment basis or on another condition to be fixed by the court; and (C) The rehabilitative effect on the defendant of the payment of restitution and the method of payment....(f) (3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider: (A) The defendant's employment status; (B) The defendant's earning ability; (C) The defendant's financial resources; (D) The willfulness of the defendant's failure to pay; and (E) Any other special circumstances that may have a bearing on the defendant's ability to pay.

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"The financial resources of the defendant and the burden that payment of restitution will impose with regard to another obligation of the defendant; The ability of the defendant to pay

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restitution on an installment basis or on another condition to be fixed by the court."

Not provided for Not provided for Determined by judge after hearing Yes Not provided for
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Arkansas Ark. Const. Art. 2, § 9 Excessive Bail or Punishment Prohibited -- Witness -- Detention

Excessive bail shall not be required; nor shall excessive fines be imposed; nor shall cruel or unusual punishments be inflicted; nor witnesses be unreasonably detained.

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Fines cannot be "excessive".

Not provided for Not provided for Not provided for Yes Not provided for
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Arkansas Ark. Code Ann. § 5-4-303(f) Conditions of Suspension or Probation

(1) If the court suspends imposition of sentence on a defendant or places him or her on probation conditioned upon his or her making restitution under subdivision (c)(6) of this section,

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the court, by concurrence of the victim, defendant, and the prosecuting authority, shall determine the amount to be paid as restitution. (2) After considering the assets, financial condition, and occupation of the defendant, the court shall further determine: (A) Whether restitution shall be total or partial; (B) The amounts to be paid if by periodic payments; and (C) If a personal service is contemplated, the reasonable value and rate of compensation for the personal service rendered to the victim.

All Not provided for Before imposition of fine or fee Not provided for Not provided for Yes Not provided for
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Arkansas Ark. Code Ann. § 16-93-104(b)-(d) Supervision Fee -- Direct Payment by Offender -- Failure to Pay

(b) (1) When an offender on probation defaults in the payment of supervision fees or any installment thereof, the court may require the offender to show cause why he or

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she would not be imprisoned for nonpayment. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so to the court in writing, under oath, and the court so finds. (3) Unless the offender shows that his or her default was not attributable to a purposeful refusal to obey the sentence of the court or to a failure on his or her part to make a good faith effort to obtain the funds required for payment, the court may order the defendant imprisoned until the payments are made. (4) If the court determines that the default in payment is not attributable to the causes specified in subdivision (b)(3) of this section, the court may enter an order allowing the offender additional time for payment, reducing the amount of each installment, or revoking the fees or the unpaid portion thereof in whole or in part. (c) (1) The offender on parole may be imprisoned for violation of parole if the offender is financially able to make the payments and if the payments are not made and the Parole Board so finds, subject to the limitations set out in this subsection. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so under oath to the Parole Board in writing, and the Parole Board so finds. (d) Court costs under § 16-10-305 shall be collected in full before any fees are collected under this section.

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"The offender is financially unable to make the payments."

Not provided for Burden on defendant to show inability to pay Determined by judge without hearing Yes

Additional Time, Reduced Payments, Revoke Fees.

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Arkansas Ark. Code Ann. § 5-65-114   Inability to Pay -- Alternative Public Service Work

If a court finds that a person against whom fines, fees, or court costs are levied for violating this chapter is financially unable to pay the fines, fees, or costs,

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the court shall order the person to perform public service work as the court determines is appropriate.

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"Financially unable to pay the fines, fees, or costs."

Not provided for Not provided for Not provided for Yes

Community Service.

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Arkansas Ark. Code Ann. § 5-4-303(g)(2)(B) Conditions of Suspension or Probation

The amount of the assessed attorney's fee shall be commensurate with the defendant's ability to pay.

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

Waiver/Reduction of Fee.

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Arkansas A.C.A. § 5-2-331 Cost of Mental Health Services, Examination, and Treatment of Defendant

Rules establishing reasonable charges for the cost of treatment or other mental health services under this section shall provide for waiving or postponing the collection of the charges based on:

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(A)  Clinical considerations; (B)  The defendant's inability to pay; or (C)  A court determination that the defendant is wholly or partly indigent and qualifies for the appointment of an attorney under § 16-87-213.

All Not provided for At enforcement of fine or fee Not provided for Administrative decision No Not provided for
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Arkansas A.C.A. § 16-13-704 Installment Payments -- Definition

(a) (1)  If the court concludes that the defendant has the ability to pay the fine, but that requiring the defendant to make immediate payment in full would cause a severe and

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undue hardship for the defendant and the defendant's dependents, the court may authorize payment of the fine by means of installment payments in accordance with this subchapter;  (d)  "Ability to pay" means that the resources of the defendant, including all available income and resources, are sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence compatible with health and decency.

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"The resources of the defendant, including all available income and resources, are sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence

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compatible with health and decency."

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

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