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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Hawaii Haw. Rev. Stat. § 706-640(2) Disposition of Criminal defendants: Authorized fines

The mandatory fines imposed by this subsection shall not be reduced except and only to the extent that payment of the fine prevents the defendant from making restitution to the

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victim of the offense, or that the defendant's property, real or otherwise, has been forfeited under chapter 712A as a result of the same conviction for which the defendant is being fined under this subsection.

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Not provided for

Not provided for Not provided for Not provided for Yes

Fine reduced.

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Hawaii Haw. Rev. Stat. § 706-648 Probation services fee

(1) The court, when sentencing a defendant to probation or granting deferral of a plea under section 853-1, shall order the defendant to pay a probation services fee. The amount

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of the fee shall be as follows:(a) $150, when the term of probation or period of deferral is for more than one year; or (b) $75, when the term of probation or period of deferral is for one year or less; provided that no fee shall be ordered when the court determines that the defendant is unable to pay the fee.

All

Not provided for

At enforcement of fine or fee Not provided for Not provided for Yes

Fee not ordered.

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Hawaii Haw. Rev. Stat. § 706-646(3) Victim restitution

(3) In ordering restitution, the court shall not consider the defendant's financial ability to make restitution in determining the amount of restitution to order. The court, however, shall consider the

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defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment. The court shall specify the time and manner in which restitution is to be paid. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to:(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible; (b) Medical expenses; and (c) Funeral and burial expenses incurred as a result of the crime.

All

Not provided for

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

Time and manner of payment may be ordered considering an individual's ability to pay.

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Hawaii Haw. Rev. Stat. § 846F-3 Internet crimes against children fee

(a) The court shall order every defendant to pay an internet crimes against children fee of up to $100 for each felony or misdemeanor conviction; provided that no fee shall

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be ordered when the court determines that the defendant is unable to pay the fee.

(b) When a defendant is also ordered to pay a fine, make restitution, pay a crime victim compensation fee, or pay other fees in addition to the internet crimes against children fee, payments by the defendant shall be made in the order of priority established under section 706-651.

(c) The defendant shall pay the internet crimes against children fee to the clerk of the court. The fee shall be deposited with the director of finance who shall transmit the fee to the internet crimes against children special fund pursuant to section 846F-4.

All

Not provided for

Not provided for Not provided for Not provided for Yes

Fee not ordered.

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Hawaii Haw. Rev. Stat. § 706-641 Criteria for imposing fines

(1) The court shall not sentence a defendant only to pay a fine, when any other disposition is authorized by law, except in misdemeanor and petty misdemeanor cases.

(2) The court

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shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation unless: (a) The defendant has derived a pecuniary gain from the crime; or (b) The court is of the opinion that a fine is specially adapted to the deterrence of the crime involved or to the correction of the defendant.

(3) The court shall not sentence a defendant to pay a fine unless: (a) The defendant is or will be able to pay the fine; and (b) The fine will not prevent the defendant from making restitution to the victim of the offense.

(4) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

All

The financial resources of the defendant and the nature of the burden that its payment will impose.

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

Court shall sentence defendant to pay a fine.

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Hawaii Haw. Rev. Stat. § 607-3 Court costs, waiver of prepayment, reduction or remission of

The judges of all the courts of the State shall have discretionary power to waive the prepayment of costs or to reduce or remit costs where, in special or extraordinary

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cases, the cost of any suit, action, or proceeding may, to the judges, appear onerous.

All

Cost appears onerous.

Not provided for Not provided for Not provided for No

Waive prepayment of costs.

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Hawaii Haw. Rev. Stat. § 802-7 Litigation expenses

The court may, upon a satisfactory showing that a criminal defendant is unable to pay for transcripts or witness fees and transportation, or for investigatory, expert or other services, and

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upon a finding that the same are necessary for an adequate defense, direct that such expenses be paid from available court funds or waived, as the case may be; provided that where the defendant is represented by the state public defender or by other counsel appointed by the court except for such other counsel appointed by the court for reasons of conflict of interest on the part of the public defender, the public defender shall pay for or authorize payment for the same, if the public defender determines that the defendant is unable to pay for the same and that the same are necessary for an adequate defense, and if there is a dispute as to the financial ability of the defendant such dispute shall be resolved by the court. In cases where other counsel have been appointed by the court for reasons of conflict of interest, the court may, upon the requisite showing of inability to pay and a finding that such expenses are necessary for an adequate defense as set forth above, direct that such expenses be paid from available court funds or waived, as the case may be.

All Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Fees paid from court funds or waived.

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Hawaii Haw. Rev. Stat. § 706-605(7) Authorized disposition of convicted defendants

(7) The court shall order the defendant to make restitution for losses as provided in section 706-646. In ordering restitution, the court shall not consider the defendant's financial ability to

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make restitution in determining the amount of restitution to order. The court, however, shall consider the defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment.

All

Not provided for.

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

Time and manner of payment ordered in consideration of ability to pay.

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Hawaii Haw. Rev. Stat. § 706-605(6) Authorized disposition of convicted defendants

(6) The court shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; provided that the court shall waive the imposition of a

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compensation fee if it finds that the defendant is unable to pay the compensation fee. When a defendant is ordered to make payments in addition to the compensation fee, payments by the defendant shall be made in the order of priority established in section 706-651.

All

Not provided for

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

Fee waiver.

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Hawaii Haw. Rev. Stat. § 706-650(5) Drug demand reduction assessments; special fund

(5) If the court determines that the person has the ability to pay the monetary assessment and is eligible for probation or will not be sentenced to incarceration, unless otherwise required

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by law, the court may order the person to undergo a substance abuse treatment program at the person’s expense. If the person undergoes a substance abuse treatment program at the person’s expense, the court may waive or reduce the amount of the monetary assessment. Upon a showing by the person that the person lacks the financial ability to pay all or part of the monetary assessment, the court may waive or reduce the amount of the monetary assessment.

All

Not provided for

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Waive or reduce amount of fee.

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Hawaii Haw. Rev. Stat. 853-1(b) Deferred acceptance of guilty plea or nolo contendere plea; discharge and dismissal, expungement of records

(b) . . . the court shall impose a compensation fee pursuant to section 351-62.6 and a probation services fee pursuant to section 706-648 upon every defendant who has entered

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a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation or probation services fee, if it finds that the defendant is unable to pay the compensation or probation services fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court's discretion during the period during which the proceedings are deferred.

All

Not provided for

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

Fee waiver.

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Hawaii Haw. Rev. Stat. § 291D-9 Adjudication of Traffic Infractions: Monetary assessments

(d) The court may grant to a person claiming inability to pay, an extension of the period in which the monetary assessment shall be paid or may impose community service

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in lieu thereof. If the assessment is not paid or the community service is not performed on or before the date established and the court has not extended the time, the court shall take action as provided in section 291D-10.

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

Extension of time to pay or community service in lieu of payment.

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Hawaii Haw. Rev. Stat. § 706-644(1),(4) Consequences of nonpayment; imprisonment for contumacious nonpayment; summary collection.

(1) When a defendant is sentenced pursuant to section 706-605, granted a conditional discharge pursuant to section 712-1255, or granted a deferred plea pursuant to chapter 853, and the defendant is

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ordered to pay a fee, fine, or restitution, whether as an independent order, as part of a judgment and sentence, or as a condition of probation or deferred plea, and the defendant defaults in the payment thereof or of any installment, the court, upon the motion of the prosecuting attorney or upon its own motion, may require the defendant to show cause why the defendant’s default should not be treated as contumacious and may issue a summons or a warrant of arrest for the defendant’s appearance. Unless the defendant shows that the defendant’s default was not attributable to an intentional refusal to obey the order of the court, or to a failure on the defendant’s part to make a good faith effort to obtain the funds required for the payment, the court shall find that the defendant’s default was contumacious and may order the defendant committed until the fee, fine, restitution, or a specified part thereof is paid.

(4) If it appears that the defendant’s default in the payment of a fee, fine, or restitution is not contumacious, the court may make an order allowing the defendant additional time for payment, reducing the amount of each installment, or revoking the fee, fine, or the unpaid portion thereof in whole or in part, or converting the unpaid portion of the fee or fine to community service. A defendant shall not be discharged from an order to pay restitution until the full amount of the restitution has actually been collected or accounted for.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge after hearing No

Additional time to pay, reduction in the amount owed, revoking part of or whole fine, or community service in lieu of payment.

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Hawaii Haw. Stat. Rev. § 706-603(1) DNA analysis monetary assessment; DNA registry special fund

(1) In addition to any disposition authorized by chapter 706 or 853, every defendant convicted of a felony offense shall be ordered to pay a monetary assessment of $500 or the

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actual cost of the DNA analysis, whichever is less. The court may reduce the monetary assessment if the court finds, based on evidence presented by the defendant and not rebutted by the State, that the defendant is not and will not be able to pay the full monetary assessment and, based on the finding, shall instead order the defendant to pay an assessment that the defendant will be able to pay within five years.

Felony

Not provided for

Not provided for Not provided for Not provided for No

Reduced fee.

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Tennessee Tenn. Code Ann. § 39-13-101(b)(2) Assault - Domestic Abuse
if the relationship between the defendant and the victim of the assault is such that the victim is a domestic abuse victim as defined in § 36-3-601, and if, as
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determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200).
Misdemeanor

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Imposition of a lower fee

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Tennessee Tenn. Code Ann. § 39-13-102(e)(2) Aggravated Assault - Domestic Abuse
In addition to any other punishment that may be imposed for a violation of this section, if the relationship between the defendant and the victim of the assault is such
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that the victim is a domestic abuse victim as defined in § 36-3-601, and if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200).
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Imposition of a lower fee

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Tennessee Tenn. Code Ann. § 39-13-111(c)(5) Domestic Assault - Additional Fee
In addition to any other punishment that may be imposed for a violation of this section, if, as determined by the court, the defendant possesses the ability to pay a
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fine in an amount not in excess of two hundred twenty-five dollars ($225), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred twenty-five dollars ($225).
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Imposition of a lower fee

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Tennessee Tenn. Code Ann. § 39-13-709(e) Sex Offender Conviction Tax
The court may waive all or any portion of the tax required by this section if the court finds that a person convicted of a sex offense is indigent or
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financially unable to pay.
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing No

Reduction or waiver of the fee

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Tennessee Tenn. Code Ann. § 39-17-428(d) Fines and Penalties; Mandatory Minimums; Allocation
(1) Unless the judge, using the applicable criteria set out in § 40-14-202(c), determines that a person convicted of violating this section is indigent, or that payment of the minimum
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fine would result in a severe economic hardship, or such fine would otherwise not be in the interests of justice, the minimum fines imposed by this section shall be mandatory and shall not be reduced, suspended, waived or otherwise released by the court. No plea agreement shall be accepted by a court if the agreement attempts to reduce or suspend all or any portion of the mandatory fines imposed by this section unless the judge determines that one (1) of the conditions set out in the first sentence of this subdivision (d)(1) exists.(2) If the judge of a court of general sessions determines that it is necessary to reduce, suspend, waive or otherwise release the minimum fines imposed by this section, the judge shall assess the fine, and write on the warrant the amount of the fine, the fact that it is reduced, suspended, waived or released and the reasons for the reduction, suspension, waiver or release. If done by the judge of a court of record, the judge shall assess the fine and make a specific finding of fact on the record relative to the reduction, suspension, waiver or release and the reasons for the reduction, suspension, waiver or release.
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing Yes

Reduction or waiver of the fee

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Tennessee Tenn. Code Ann. § 40-39-305(b) Sexual Offender Fee
The department may waive all or any portion of the fees required by this section if it determines that an offender is indigent or financially unable to pay all or
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any portion of the fee. The department shall waive only that portion of the surcharge which the offender is financially unable to pay.
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing No

Reduction or waiver of the fee