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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Utah Utah R. Crim. P. 15 Expert Witnesses
Upon showing that a defendant is financially unable to pay the fees of an expert whose services are necessary for adequate defense, the witness fee shall be paid as if
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he were called on behalf of the prosecution.
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unable to pay fees

Before imposition of fine or fee Burden on defendant to show inability to pay Not provided for No

costs covered by state

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Utah Utah Code Ann. § 76-5-502  Request for testing--Mandatory testing--Liability for costs the alleged offender who is tested is responsible upon conviction for the costs of testing, unless the alleged offender is indigent.  All

indigent

Not provided for Not provided for Not provided for Yes

costs covered by state

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Utah Utah Code Ann. § 77-32a-3 Ability to pay
The court shall not include in the judgment a sentence that a defendant pay costs unless the defendant is or will be able to pay them. In determining the amount
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and method of payment of 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 and that restitution be the first priority
All Not provided for Before imposition of fine or fee Not provided for Not provided for Yes Not provided for
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Utah Utah Code Ann. § 76-3-201.1 Collection of criminal judgments--reduce fines
When a defendant defaults in the payment of a criminal judgment account receivable or any installment of that receivable, the court, on motion of the prosecution, victim, or upon its
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own motion may: (a) order the defendant to appear and show cause why the default should not be treated as contempt of court; or (b) issue a warrant of arrest... (5) If it appears to the satisfaction of the court that the default is not contempt, the court may enter an order for any of the following or any combination of the following...(f) except as limited by Subsection (6) [restitution] ... reduce or revoke the unpaid amount of the criminal judgment account receivable
All Not provided for At enforcement of fine or fee Not provided for Not provided for No

reduction or revocation of fine

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Utah Utah Code Ann. § 77-32-202(2)(a) Procedure for determination of indigence--Standards
Any defendant claiming indigence who is charged with a crime the penalty of which is a class A misdemeanor or serious offense shall file with the court a fully complete
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affidavit verified by a notary or other person authorized by law to administer an oath and file a copy of that affidavit with the prosecuting entity. The affidavit shall contain the factual information required in this section and by the court. . . “Indigence” means that a person: (i) does not have sufficient income, assets, credit, or other means to provide for the payment of legal counsel and all other necessary expenses of representation without depriving that person or the family of that person of food, shelter, clothing, and other necessities; or (ii) has an income level at or below 150% of the United States poverty level as defined by the most recently revised poverty income guidelines published by the United States Department of Health and Human Services; and (iii) has not transferred or otherwise disposed of any assets since the commission of the offense with the intent of establishing eligibility for the appointment of counsel under this chapter.
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does not have sufficient income, assets, credit or other means to provide for payment of legal counsel and all other necessary expenses without depriving that person or the family of

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that person of basic necessities OR has income level at or below 150 percent of US poverty level and has not transferred or disposed of property since the commission of the offense

Not provided for Not provided for Not provided for No

cost of attorneys fees covered

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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.

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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).

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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).

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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. 

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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.

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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.

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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