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.

All

"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.

All

"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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California Cal. Veh. Code § 14601.5(e) Driving with suspended license
In imposing the minimum fine required by subdivision (d), the court shall take into consideration the defendant's ability to pay the fine and may, in the interest of justice, and
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for reasons stated in the record, reduce the amount of that minimum fine to less than the amount otherwise imposed.
Traffic

NA

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

Court may waive or reduce fine

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California Gov. Code Sec. 68630 The Judicial Council - Waiver of Court Fees and Cost: Legislative findings and declarations

The Legislature finds and declares all of the following:

(a) That our legal system cannot provide "equal justice under law" unless all persons have access to the courts without regard to

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their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees.

(b) That fiscal responsibility should be tempered with concern for litigants' rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services. The procedure for determining if a litigant may file a lawsuit without paying a fee must not interfere with court access for those without the financial means to do so.

(c) That those who are able to pay court fees should do so, and that courts should be allowed to recover previously waived fees if a litigant has obtained a judgment or substantial settlement.

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1. Applicant receiving public benefits under one or more of the following programs: Supplemental Security Income (SSI) and State Supplementary Payment (SSP), California Work Opportunity and Responsibility to Kids Act

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(CalWORKs), federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program, Supplemental Nutrition Assistance Program, the California Food Assistance Program, County Relief, General Relief (GR), or General Assistance (GA), Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI), In-Home Supportive Services (IHSS), or Medi-Cal. 2. An applicant whose monthly income is 125 percent or less of the current poverty guidelines. 3. An applicant who, as individually determined by the court, cannot pay court fees without using moneys that normally would pay for the common necessaries of life for the applicant and the applicant's family.

Not provided for Not provided for Other Yes

Court can grant an initial fee waiver, require applicant to pay a portion of the fees, require applicant to pay court fees over a period of time, or grant some

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other equitable arrangement.

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California Cal. Gov. Code § 27712(a) Public Defender: Determination of ability to pay for costs of counsel at end of proceedings; Order for payment, and enforcement thereof

(a) In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, or

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upon the withdrawal of the public defender or private counsel, after a hearing on the matter, the court may make a determination of the ability of the party to pay all or a portion of the cost of such legal assistance. Such determination of ability to pay shall only be made after a hearing conducted according to the provisions of Section 987.8 of the Penal Code; except that, in any court where a county financial evaluation officer is available, the court shall order the party to appear before the county financial evaluation officer, who shall make an inquiry into the party’s ability to pay this cost as well as other court-related costs. The party shall have the right to dispute the county financial evaluation officer’s evaluation, in which case he or she shall be entitled to a hearing pursuant to Section 27752. If the party agrees with the county financial evaluation officer’s evaluation, the county financial evaluation officer shall petition the court for an order to that effect. The court may, in its discretion, hold one such additional hearing, or the county financial evaluation officer may hold one such additional evaluation, within six months of the conclusion of the criminal proceedings. If the court determines, or upon petition by the county financial evaluation officer is satisfied, that the party has the ability to pay all or part of the cost, it shall order the party to pay the sum to the county in any installments and manner which it believes reasonable and compatible with the party’s ability to pay. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt.The court, or in a county which has a county financial evaluation officer, the board of supervisors, shall adjudge a standard by which to measure the cost of legal assistance provided, which standard shall reflect the actual cost of legal services provided. Appointed counsel shall provide evidence of the services performed pursuant to such standard.

All

NA

Not provided for Not provided for Determined by judge after hearing Yes

Fee may be reduced

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California Cal. Pen. Code § 1202.5(a) Additional fine upon conviction of specified crimes; Disposition of proceeds

(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or

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Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.

All

NA

Not provided for Not provided for Not provided for No

Court my reduce fine

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California Cal. Pen. Code § 273.65(i) Violation of protective order relating to children

(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a

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determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.

All

NA

Not provided for Not provided for Not provided for Yes

In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to

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the victim or court-ordered child support.

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California Cal. Rules of Court 4.335(c) Ability to pay determinations for infraction offenses

(1) The court, on request of a defendant, must consider the defendant’s ability to pay.

(2) A defendant may request an ability-to-pay determination at adjudication, or while the judgment remains unpaid,

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including when a case is delinquent or has been referred to a comprehensive collection program.

3) The court must permit a defendant to make this request by written petition unless the court directs a court appearance. The request must include any information or documentation the defendant wishes the court to consider in connection with the determination. The judicial officer has the discretion to conduct the review on the written record or to order a hearing.

Misdemeanor Not provided for Not provided for Not provided for Determined by judge without hearing No

Community service; payment plan; waiver or reduction of costs

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California Cal. Pen. Code § 987.8(a)-(c) Determination of assets subject to attachment; Determination and order for payment of costs of counsel; Proceedings; Enforcement

(a) If the court finds that a defendant is entitled to counsel but is unable to employ counsel, the court may hold a hearing or, in its discretion, order the

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defendant to appear before a county officer designated by the court, to determine whether the defendant owns or has an interest in real property or other assets subject to attachment and not otherwise exempt by law. The court may impose a lien on any real property owned by the defendant, or in which the defendant has an interest to the extent permitted by law. The lien shall contain a legal description of the property, shall be recorded with the county recorder in the county or counties in which the property is located, and shall have priority over subsequently recorded liens or encumbrances. The county shall have the right to enforce its lien for the payment of providing legal assistance to an indigent defendant in the same manner as other lienholders by way of attachment, except that a county shall not enforce its lien on a defendant’s principal place of residence pursuant to a writ of execution. No lien shall be effective as against a bona fide purchaser without notice of the lien.

(b) If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

(c) (1) If the defendant hires counsel replacing a publicly provided attorney; in which the public defender or appointed counsel was required by the court to proceed with the case after a determination by the public defender that the defendant is not indigent; or, in which the defendant, at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.

(2) This subdivision applies to a county only upon the adoption of a resolution by the board of supervisors to that effect.

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(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her,

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and shall include, but not be limited to, all of the following: (A) The defendant's present financial position. (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.

Not provided for Not provided for Not provided for Yes

NA

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California Cal. Pen. Code § 273d(c)(3)(B) Infliction of corporal punishment or injury on child resulting in traumatic condition; Enhancement; Conditions of probation

(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation

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be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

Felony

NA

Not provided for Not provided for Not provided for No

If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

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California Cal. Health & Saf. Code § 11350(c) Offenses Involving Controlled Substances Formerly Classified as Narcotics: Unlawful possession

(c) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this

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section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered:

(1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service.

(2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service.

(3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.

All

NA

Not provided for Not provided for Not provided for Yes

community service

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California Cal. Gov. Code § 29550(d)(2) Criminal Justice Administrative Fees: Imposition of fee

The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee,

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including applicable overhead costs.

All

NA

Not provided for Not provided for Not provided for Yes

NA

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California Cal. Pen. Code § 273.1(e) Treatment program for child abusers on probation

(e) The defendant shall pay for the full costs of the treatment program, including any drug testing. However, the court may waive any portion or all of that financial responsibility upon

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a finding of an inability to pay. Upon the request of the defendant, the court shall hold a hearing to determine the defendant’s ability to pay for the treatment program. At the hearing the court may consider all relevant information, but shall consider the impact of the costs of the treatment program on the defendant’s ability to provide food, clothing, and shelter for the child injured by a violation of Section 273a or 273d. If the court finds that the defendant is unable to pay for any portion of the costs of the treatment program, its reasons for that finding shall be stated on the record. In the event of this finding, the program fees or a portion thereof shall be waived.

All

NA

Not provided for Not provided for Determined by judge after hearing Yes

The program fees or a portion thereof shall be waived.

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California Cal. Pen. Code § 987.4 Liability of minor’s parents for costs of assigned counsel

When the public defender or an assigned counsel represents a person who is a minor in a criminal proceeding, at the expense of a county, the court may order the

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parent or guardian of such minor to reimburse the county for all or any part of such expense, if it determines that the parent or guardian has the ability to pay such expense.

All

NA

Not provided for Not provided for Not provided for Yes

Court may waive or reduce fee