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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New Hampshire N.H. Rev. Stat. § 651-B:11(II) Registration Fee

An offender who cannot afford to pay the fee shall, within 10 days of registration, request a waiver of the fee and a hearing on the matter before the commissioner.

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In order to be considered for a waiver, the offender shall submit a financial affidavit on a form provided by the department. The division may at its discretion request such a waiver on behalf of an offender. If such a request is made, the commissioner shall promptly schedule and conduct a hearing pursuant to rules adopted under RSA 541-A, unless the commissioner or commissioner's designee determines a hearing is not necessary and waives the fee based on the offender's financial affidavit, or at the written request of the division. At the hearing, the burden shall be on the offender to prove that he or she is indigent. The offender may appeal the commissioner's decision to the superior court. Under no circumstances shall the offender's request for a hearing or indigence relieve the offender of the obligation to register as required pursuant to this chapter.

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Indigent

At defendant's request at enforcement Burden on defendant to show inability to pay Administrative decision Yes

Fee waiver

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New Hampshire N.H. Rev. Stat. Ann. § 623-B:2(I),(IV) Civil Actions by Inmates; Filing Fees and Court Costs.

I. An inmate who commences any civil action or proceeding is responsible for all court fees and costs.

IV. Nothing in this section shall prohibit an inmate from filing a civil action

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or proceeding if the inmate is indigent.

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Indigent

Not provided for Not provided for Not provided for Yes

N/A

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New Hampshire N.H. Rev. Stat. Ann. § 604-A:9(I) Repayment

I. Any adult defendant who has had counsel or a public defender assigned to the defendant at the expense of the state shall be ordered by the court under paragraph I-b

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to repay the state through the unit of cost containment, the fees and expenses paid by the state on the defendant's behalf according to a schedule established by the administrator of the cost containment unit with the approval of the administrative justices of the courts on such terms as the court may order consistent with the defendant's present or future ability to pay, such ability to be determined by the unit of cost containment . . . At no time shall the defendant be required to repay, for legal services, an amount greater than the state's flat rate for a contract attorney as established contractually pursuant to RSA 604-B. If the defendant is placed on probation or sentenced to a period of conditional discharge, the defendant shall repay the state, through the department of corrections, all fees and expenses paid on his behalf on such terms as the court may order consistent with the defendant's present or future ability to pay.

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Present or future ability to pay, as determined by the unit of cost containment.

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

Payment plan and reduced costs

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New Hampshire N.H. Rev. Stat. Ann. § 651:63 Restitution Authorized

Restitution may be ordered regardless of the offender's ability to pay and regardless of the availability of other compensation; however, restitution is not intended to compensate the victim more than

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once for the same injury. 

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Not provided for

Not provided for Not provided for Not provided for Yes

N/A

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New Hampshire N.H. Rev. Stat. Ann. § 516:16-a Defaults; Witness Fees for Law Enforcement Officers

Any person who defaults on a scheduled court appearance on a motor vehicle offense shall be responsible for paying the current witness fee for any law enforcement officer required to

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attend such appearance, unless the court determines that such person is indigent.

Traffic

Indigent

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

Not specified

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New Hampshire N.H. Rev. Stat. Ann. § 631:2-b(V) Domestic Violence

In addition to any other penalty authorized by law, the court shall levy a fine of $50 for each conviction under this section. The court shall not reduce or suspend

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any sentence or the payment of any fine imposed under this section. If the court determines that the defendant is unable to pay the fine on the date imposed, the court may defer payment or order periodic payments thereof.

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Not provided for

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

Deferred payment; payment plan.

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New Hampshire N.H. Rev. Stat. Ann. § 651-D:2(V) Post-Conviction DNA Testing of Biological Material

The cost of DNA testing ordered under this section shall be paid by the petitioner, or by the state, if the petitioner is indigent as determined by the court. The

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court may appoint counsel for an indigent petitioner under this section.

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Indigent

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

Payment by the state

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New Hampshire N.H. R. Crim. P. 29(e)(1) Sentencing Procedures

(1)  Fines, restitution or penalty assessments (hereinafter collectively referred to as "assessments") imposed by the court shall be due and payable on the date the sentence is imposed. Where a defendant

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indicates an inability to pay forthwith, the defendant shall complete an affidavit of resources, under oath, prior to leaving the courthouse. The court will then determine whether the defendant has the financial ability to pay the assessment.

(2)  The determination of a defendant's financial ability to pay the assessment shall be made by comparing the defendant's assets and income with the amount of the assessment. The defendant's assets shall include all real and personal property owned in any manner by the defendant, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law. The defendant's income shall include all income, whether earned or not, from any source, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents and by the amount of defendant's anticipated or current obligation to repay the Office of Cost Containment for the cost of appointed counsel. As a court may do when considering an obligor's ability to pay child support, alimony, or other indebtedness, the court also may consider: (1) spousal, partner and family income or assets to the extent they are available to the defendant; (2) the defendant's ability to access credit; and (3) the diligence exercised by the defendant in pursuing employment or other means of satisfying his financial obligations.

(3)  In any case where the court finds that the defendant is unable to pay the assessment either on the date the sentence is imposed or later, the court may, if otherwise permitted by law: (i) defer or suspend payment of all or part of the assessment or order periodic payment; or (ii) allow the defendant to perform community service, pursuant to a plan submitted to and approved by the court. In any such deferral or order of periodic payment, the court shall, pursuant to RSA 490:26-a, II-a, include a $25.00 fee to be added to the assessment. Every hour of verified community service shall be applied against a fine at the rate of $15.00 an hour. A community service plan approved under this paragraph shall take into account the defendant's circumstances including but not limited to age, disability, health, employment, and access to child-care and transportation.

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Comparison of the defendant's assets and income with the amount of the assessment.

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Defer or suspend payment of all or part of the assessment or order periodic payment; or allow the defendant to perform community service.

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New Hampshire N.H. Rev. Stat. § 604-A:2-c Determination of Financial Ability

The determination of a defendant's financial ability to obtain counsel shall be made by comparing the defendant's assets and incomes with the minimum cost of obtaining qualified private counsel. The

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defendant's assets shall include all real and personal property owned in any manner by the defendant, excluding only those assets which are exempt from attachment and execution under RSA 511:2. The defendant's income shall include all income, whether earned or not, from any source, unless exempt from attachment under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents. In determining a defendant's financial ability to obtain counsel, the rules adopted by the commissioner under RSA 604-A:10, IV, shall contain a method for considering the defendant's ability to borrow some or all of the necessary funds. The rules shall also consider the possibility of the defendant paying his counsel fees in periodic installments.

All

Comparison of the defendant's assets and incomes with the minimum cost of obtaining qualified private counsel.

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

Installment plan

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New Hampshire N.H. Rev. Stat. § 618:10 Petition for Discharge

Whenever a person under conviction for a criminal offense and confined in a county correctional facility is unable to pay the fine, the superior court, upon petition of the prisoner

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or the superintendent and satisfactory proof of such inability, may order the prisoner to be discharged upon such terms as they may think proper.

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Not provided for

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

Discharge from prison.

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New Hampshire N.H. Rev. Stat. § 499:18-b Waiver of Court Costs and Fees

Except as otherwise specifically provided by the rules of the court, any person, by reason of poverty, may seek relief from the payment of any fees provided by law which

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are payable to any court, clerk of court, or sheriff. The court, upon the application of such person, which application may be filed without fee, may, in its discretion, order the payment of such fees waived. In any case in which a person is represented by a legal aid society, a federally funded legal services project, or counsel assigned in accordance with the rules of the court, all filing costs shall be waived by the clerk without the necessity of a court order. Fees for the service of process by sheriffs shall be a charge against the state.

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Poverty

At defendant's request before imposition of fine or fee Not provided for Other Yes

Fee waiver

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New Hampshire N.H. Rev. Stat. § 604-A:2-a Additional Inquiry

Whenever a court appoints counsel pursuant to the provisions of RSA 604-A:2, the court shall conduct an appropriate inquiry as to whether any person who, pursuant to RSA 546-A:2, is

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liable for the support of the defendant is financially able to pay for such defendant's counsel. If the court determines that the person liable for support is financially able to pay for said counsel, in whole or in part, the court shall enter an appropriate order requiring said person to reimburse the state for the representation provided; provided, however, that a child shall not be required to reimburse the state for representation provided to his mother or father, a parent shall not be required to reimburse the state for representation provided to a child 18 years of age or older, and any person who was a victim of the crime with which the defendant has been charged shall not be required to reimburse the state for the representation provided. For the purposes of this section, the inquiry conducted by the court shall include notice and hearing to the person liable for support.

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N/A

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

N/A