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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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.

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"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.

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"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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Maine Me. Rev. Stat. tit 17-A § 1807(6) Conditions of probation

The court shall attach as a condition of probation that the person pay, through the Department of Corrections, a supervision fee of between $10 and $50 per month, as determined

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by the court, for the term of probation. If the court does not set a supervision fee, the supervision fee is $10 per month. Notwithstanding the attachment of supervision fee conditions on more than one sentence, a person on probation on concurrent sentences is required to pay only one supervision fee. In determining whether to set an amount higher than $10 per month, the court shall take into account the financial resources of the person and the nature of the burden its payment imposes. A person may not be sentenced to imprisonment without probation solely for the reason the person is not able to pay the fee. 

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financial resources and nature of burden

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

may allow additional time

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Maine Me. Rev. Stat. tit 17-A §1807(7) Conditions of probation

7. Electronic monitoring and substance testing fees; determination of amount by court; failure to pay; use of fees. Upon the request of the Department of Corrections, the court shall attach as

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a condition of probation that the person pay, through the department, an electronic monitoring fee, a substance testing fee or both, as determined by the court, for the term of probation. In determining the amount of the fees, the court shall take into account the financial resources of the person and the nature of the burden the payment imposes. A person may not be sentenced to imprisonment without probation solely for the reason the person is not able to pay the fees. 

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Financial resources and nature of burden

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

Reduced fine

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Maine Me. Rev. Stat. tit 17-A §1702 Criteria for imposing sentencing alternative that includes fine

1. Consideration of financial capacity to pay and financial burden. In determining the amount of a fine, unless the fine amount is mandatory, and in determining the method of payment of

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a fine, the court shall take into account the present and future financial capacity of the convicted person to pay the fine and the nature of the financial burden that payment of the fine will impose on the person or a dependent, if any, of the person.

2. Burden of proving financial hardship or incapacity to pay. A convicted person who asserts a present or future incapacity to pay a fine or asserts that the fine will cause an excessive financial hardship on the person or on a dependent of the person has the burden of proving the incapacity or excessive hardship by a preponderance of the evidence. On appeal of a sentencing alternative involving a fine, the person has the burden of demonstrating that the incapacity or excessive financial hardship was proven as a matter of law.

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By preponderance of evidence that fine would cause excessive financial hardship on offender or dependent

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No Not provided for
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Maine Me. Rev. Stat. tit 17-A §2005(2)(D) Criteria for restitution

D. When the amount and method of payment of monetary restitution or the performance of service restitution creates an excessive financial hardship on the offender or dependent of the offender.

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In making this determination, all relevant factors must be considered, including, but not limited to the following:(1) The number of the offender's dependents; (2) The minimum living expenses of the offender and the offender's dependents; (3) The special needs of the offender and the offender's dependents, including necessary travel expense to and from work; (4) The offender's present income and potential future earning capacity; and (5) The offender's resources, from whatever source.

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excessive financial hardship on offender or dependents

Before imposition of fine or fee Not provided for Determined by judge after hearing No Not provided for
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Maine Me. Rev. Stat. tit 17-A §1751(1)-(2) County jail reimbursement fee

1. Assessment of reimbursement fee. When an individual is sentenced to incarceration in a county jail, the sentencing court shall consider and may assess as part of the sentence a jail

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reimbursement fee, referred to in this section as “the reimbursement fee,” to help defray the expenses of the individual's room and board.

2. Evidence. The court, in determining whether a reimbursement fee as set out in subsection 1 is to be assessed and in establishing the amount of that fee, shall consider evidence relevant to the individual's ability to pay that fee, including, but not limited to, the factors set forth in section 2005, subsection 2, paragraph D, subparagraphs (1) to (5). The court may not consider as evidence the following: A. Joint ownership, if any, that the individual may have in real property; B. Joint ownership, if any, that the individual may have in any assets, earnings or other sources of income; and C. The income, assets, earnings or other property, both real and personal, owned by the individual's spouse or family.

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excessive financial hardship on offender or dependents

Not provided for Not provided for Determined by judge after hearing Yes Not provided for
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Maine Me. Rev. Stat. tit 17-A §1854(2)(A) Requirements of administrative release

In determining the amount of the fee, the court shall take into account the financial resources of the person and the nature of the burden its payment imposes.

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Financial resources and nature of burden

Before imposition of fine or fee Not provided for Not provided for No Not provided for
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Maine Me. R. of Unified Crim. P. 44(b) Right to and Assignment of Counsel

(b) Determination of Indigency. The court shall determine whether a defendant has sufficient means with which to employ counsel and in making such determination may examine the defendant under oath concerning

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the defendant's financial resources. A defendant does not have sufficient means with which to employ counsel if the defendant's lack of resources effectively prevents the defendant from retaining the services of competent counsel. In making its determination the court shall consider the following factors: the defendant's income, the defendant's credit standing, the availability and convertibility of any assets owned by the defendant, the living expenses of the defendant and the defendant's dependents, the defendant's outstanding obligations, the financial resources of the defendant's parents if the defendant is an unemancipated minor residing with his or her parents, and the cost of retaining the services of competent counsel.

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sufficient means with which to employ counsel

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Court appointed counsel free of costs

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Maine Me. Rev. Stat. tit 17-A §1902(1) Deferred disposition

1. Authority of court to order deferment and impose requirements; administrative supervision fee. Following the acceptance of a plea of guilty for a crime for which a person is eligible for

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a deferred disposition under section 1901, the court may order sentencing deferred to a date certain or determinable and impose requirements upon the person, to be in effect during the period of deferment, considered by the court to be reasonable and appropriate to assist the person to lead a law-abiding life. The court-imposed deferment requirements must include a requirement that the person refrain from criminal conduct and may include a requirement that the person pay to the appropriate county an administrative supervision fee of not more than $50 per month, as determined by the court, for the term of the deferment. In determining the amount of the fee, the court shall take into account the financial resources of the person and the nature of the burden its payment imposes. In exchange for the deferred sentencing, the person shall abide by the court-imposed deferment requirements. Unless the court orders otherwise, the requirements are immediately in effect.

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The financial resources of the person and the nature of the burden its payment imposes.

Before imposition of fine or fee Not provided for Determined by judge without hearing No Not provided for
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Maine Me. Rev. Stat. tit 17-A § 1607 Prohibition against imprisonment based on incapacity to pay fine

If a court finds that an individual has met the burden of proving incapacity to pay a fine pursuant to section 1702, subsection 2, the court may not impose a

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term of imprisonment or any other sentencing alternative involving imprisonment solely for the reason that the individual does not have the present or future capacity to pay the fine.

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Not provided for

At enforcement of fine or fee Burden on defendant to show inability to pay Not provided for No Not provided for
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New Mexico N.M. Stat. Ann. § 31-20-6 Conditions of order deferring or suspending sentence

The defendant upon conviction shall be required to pay the actual costs of the defendant’s supervised probation service to the adult probation and parole division of the corrections department or

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appropriate responsible agency for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant’s payment of the supervised probation costs shall not be waived unless the court holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the court waives the defendant’s payment of the supervised probation costs and the defendant’s financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the court and the court shall hold an evidentiary hearing to determine whether the waiver should be rescinded.

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Not provided for

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Fee waiver

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New Mexico N.M. Stat. Ann. § 31-16-7 Recovery from defendant

A. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit

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under the Indigent Defense Act: (1) to which he was not entitled; (2) with respect to which he was not a needy person when he received it; or (3) with respect to which he has failed to make the certificate required by Section 62 B of the Indigent Defense Act and for which he refuses to pay. Suit must be brought within six years after the date on which the aid was received.

B. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person other than a person covered by SMayubsection A who has received legal assistance under the Indigent Defense Act and who, on the date on which suit is brought, is financially able to pay or reimburse the state for it according to the standards of ability to pay applicable under the Indigent Defense Act but refuses to do so. Suit must be brought within three years after the date on which the benefit was received. 

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge after hearing No

May not recover payment or reimbursement.

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New Mexico N.M. Stat. Ann. § 31-12-3(D) Paying fines, fees, or costs in installments

If it appears that a defendant's default in the payment of a fine, fees or costs is not contumacious, the court may allow the defendant additional time for payment, reduce

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the amount of the fine or of each installment, revoke the fine or the unpaid portion in whole or in part or require the defendant to perform community service in lieu of the fine, fees or costs.

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Default not "contumacious"

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

Additional time for payment, reduce the amount of the fine or of each installment, revoke the fine or the unpaid portion in whole or in part, or require the defendant to

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perform community service in lieu payment.

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New Mexico N.M. Stat. Ann. § 31-12-3(A) Paying fines, fees, or costs in installments

Any person sentenced to pay a fine or to pay fees and costs in any criminal proceeding against him, either in addition to or without a term of imprisonment, may

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in the discretion of the court be allowed to pay such fine, fees or costs in installments of such amounts, at such times and upon such conditions as the court may fix. The defendant may also be required to serve a period of time in labor to be known as “community service” in lieu of all or part of the fine. If unable to pay the fees or costs, he may be granted permission to perform community service in lieu of them as well . . .

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Not provided for

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

Community service in lieu of payment.

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New Mexico N.M. Stat. Ann. § 31-16-5(B)-(C) Determination of indigency

B. In determining whether a person is a needy person and the extent of his inability to pay, the court concerned may consider such factors as income, property owned, outstanding obligations

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and the number and ages of his dependents. Release on bail does not necessarily prevent him from being a needy person. In each case, the person shall, subject to the penalties for perjury, certify in writing or by other record material factors relating to his ability to pay as the court prescribes.

C. To the extent that a person covered by Section 60 [31-16-3 NMSA 1978] of the Indigent Defense Act is able to provide for an attorney, the other necessary services and facilities of representation and court costs, the court may order him to provide for their payment.

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Factors considered: income, property owned, outstanding obligations and number and age of dependents

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

Representation provided without costs

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New Mexico N.M. Stat. Ann. § 31-15-12(C) Explanation of rights; waiver of counsel; application fee; indigency determination

A person shall pay a non-refundable application fee of ten dollars ($10.00) at the time the person applies with the public defender for representation. The fee shall be deposited in

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the public defender automation fund. The public defender shall determine if the person is indigent and unable to pay the fee, subject to review by the court. When the person remains in custody and is unable to pay the fee, the court may waive payment of the fee.

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Not provided for

Before imposition of fine or fee Not provided for Other No

Fee waiver

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New Mexico N.M. Stat. Ann. § 30-18-1.2(C)-(D) Disposition of seized animals

C. An agent of the New Mexico livestock board, an animal control agency operated by the state, a county or a municipality, or an animal shelter or other animal welfare

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organization designated by an animal control agency or an animal shelter, in the custody of which an animal that has been cruelly treated has been placed may petition the court to request that the animal's owner may be ordered to post security with the court to indemnify the costs incurred to care and provide for the seized animal pending the disposition of any criminal charges of committing cruelty to animals pending against the animal's owner.
D. The court shall determine the amount of security while taking into consideration all of the circumstances of the case including the owner’s ability to pay, and may conduct periodic reviews of its order. If the posting of security is ordered, the animal control agency, animal shelter or animal welfare organization may, with permission of the court, draw from the security to indemnify the costs incurred to care and provide for the seized animal pending disposition of the criminal charges.

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Not provided for

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

N/A