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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South Carolina S.C. Code Ann. § 17-27-60 Court costs and expenses for indigents
If the applicant is unable to pay court costs and expenses of representation, including stenographic, printing and legal services, these costs and expenses shall be made available to the applicant
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in the trial court, and on review, in amounts and to the extent funds are made available to indigent defendants by the General Assembly.
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unable to pay costs

Not provided for Not provided for Not provided for Yes

costs made available to the defendant

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South Carolina S.C. Code Ann. § 17-25-350 Schedule for payment of fine by indigent; consequences of failure to comply.
In any offense carrying a fine or imprisonment, the judge or magistrate hearing the case shall, upon a decision of guilty of the accused being determined and it being established
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that he is indigent at that time, set up a reasonable payment schedule for the payment of such fine, taking into consideration the income, dependents and necessities of life of the individual. Such payments shall be made to the magistrate or clerk of court as the case may be until such fine is paid in full. Failure to comply with the payment schedule shall constitute contempt of court; however, imprisonment for contempt may not exceed the amount of time of the original sentence, and where part of the fine has been paid the imprisonment cannot exceed the remaining pro rata portion of the sentence.No person found to be indigent shall be imprisoned because of inability to pay the fine in full at the time of conviction. Entitlement to free counsel shall not be determinative as to defendant's indigency.
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indigent

Not provided for Not provided for Not provided for Yes

reasonable payment plan

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South Carolina S.C. Code Ann. § 23-3-540(K) Electronic monitoring; reporting damage to or removing monitoring device; penalty
(K) The person must be charged for the cost of the active electronic monitoring device and the operation of the active electronic monitoring device for the duration of the time
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the person is required to be electronically monitored. The Department of Probation, Parole and Pardon Services may exempt a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if the Department of Probation, Parole and Pardon Services determines that exceptional circumstances exist such that these payments cause a severe hardship to the person.
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exceptional circumstances exist such that these payments cause a severe hardship to the person

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

waiver of all or part of fee

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South Carolina S.C. Code Ann. § 16-3-740(C)(4) Testing of certain convicted offenders for Hepatitis B and HIV
If the offender is subsequently convicted or adjudicated delinquent, the offender or the parents of an adjudicated offender must reimburse the State for the costs of the tests unless the
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offender or the parents of the adjudicated offender are determined to be indigent.
All Not provided for At enforcement of fine or fee Not provided for Not provided for Yes

waiver from reimbursing state for cost of tests

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South Carolina S.C. Code Ann. § 16-3-2040(C) Restitution for victims of trafficking (C) If a person is unable to pay restitution at the time of sentencing, or at any other time, the court may set restitution pursuant to Section 16-3-1270. All Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

not specified

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South Carolina S.C. Code Ann. § 17-3-30(B) Affidavit of inability to employ counsel; payment of indigent's assets to state; application fee; waiver or reduction of fee
If the clerk or other appropriate official determines that the person is unable to pay the application fee, the fee may be waived or reduced, provided that if the fee
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is waived or reduced, the clerk or appropriate official shall report the amount waived or reduced to the trial judge upon sentencing and the trial judge shall order the remainder of the fee paid during probation if the person is granted probation.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

fee waived or reduced

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South Carolina S.C. Code Ann. § 17-3-45(B) Affidavit of assets of persons seeking appointed counsel; application fee
If it is determined that the person is unable to pay the application fee, the fee may be waived or reduced, provided that if the fee is waived or reduced,
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the clerk or appropriate official shall report the amount waived or reduced to the trial judge and the trial judge shall order the remainder of the fee paid during probation if the person is granted probation or by a time payment method if probation is not granted or appropriate.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

fee waived or reduced