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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Oklahoma Okla. Stat. tit. 22, § 1355A Application for representation by the System
except that the court may, based upon the financial information submitted, defer all or part of the fee if the court determines that the person does not have the financial
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resources to pay the fee at time of application, to attach as a court fee upon conviction.
All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Deferment of fee

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Wyoming Wyo. Stat. Ann. § 1-40-119(c) Surcharge to be assessed in certain criminal cases; paid to account.
(c) Under no circumstances shall a court fail to impose the surcharge required by subsections (a) and (b) of this section if the court determines the defendant has an
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ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.
All Not provided for Not provided for Not provided for Determined by judge without hearing Yes

No

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West Virginia W. Va. Code §62-11C-4. Criminal procedure - The West Virginia Community Corrections act - Special revenue account.
(c) In addition to the fee required in section five, article eleven-b of this chapter, a fee of $2.50 per day, unless modified by legislative rule as provided in section
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three of this article, is to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition of the fee. The circuit clerk, magistrate clerk, municipal court clerk or his or her designee shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate clerk or municipal court clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.
All

NA

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

no fee or lower fee

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Wisconsin Wis. Stat. § 938.235(8)(b) Compensation for guardian ad litem
The court may order either or both of the parents of a juvenile for whom a guardian ad litem is appointed under this chapterto pay all or any part of
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the compensation of the guardian ad litem. Upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If one or both of the parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.
All

Not specified.

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

The court may order the county of venue to pay instead.

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Wisconsin Wis. Stat. § 814.29(1) Security for costs, service and fees for indigents
1) (a) Except as provided in sub. (1m), any person may commence, prosecute or defend any action or special proceeding in any court, or any writ of error or appeal
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therein, without beingrequired to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding, or any writ of error or appeal therein, or to give security for those costs. (b) A person seeking an order under par. (a) shall file in the court an affidavit in the form prescribed by the judicial conference, setting forth briefly the nature of the cause, defense or appeal and facts demonstrating his or her poverty. (c) The finding and order of the court under par. (a) shall be in the form prescribed by the judicial conference. The court may deny the request for an order if the court finds that the affidavit states no claim, defense or appeal upon which the court may grant relief. (d) The court shall make a finding of poverty and issue an order under par. (a) if the affidavit demonstrates any of the following: 1. That the person is a recipient of means?tested public assistance, including aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under s. 59.53 (21), medical assistance, supplemental security income, food stamps or benefits received by veterans under s. 45.40 (1m) or under 38 USC 501 to 562 [38 USC 1501 to 1562]. 2. That the person is represented by an attorney through a legal services program for indigent persons, including, without limitation, those funded by the federal legal services corporation, the state public defender or volunteer attorney programs based on indigence. 3. That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal or to give security for those costs. In determining the person’s ability under this subdivision to pay or give security for fees and costs, the court shall consider the person’s household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC 9902 (2).
All

In determining the person’s ability under this subdivision
to pay or give security for fees and costs, the court shall
consider the person’s household size, income, expenses, assets
and debts

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and the federal poverty guidelines under 42 USC 9902
(2).

Not provided for Burden on defendant to show inability to pay Determined by judge without hearing No Not provided for
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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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Alaska Alaska Stat. Ann. § 18.85.120 Determination of Indigency; Repayment

(a) The determination of a person's indigency shall be made by the court in which an action against the person is pending. The determination shall be made by the court

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and shall set out the basis for the finding that the person is indigent. (b) In determining whether a person is indigent and in determining the extent of the person's inability to pay, the court shall consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents. Release on bail does not preclude a finding that a person is indigent. In each case, the person, subject to the penalties for perjury, shall certify under oath, and in writing or by other record, material factors relative to the person's financial resources and ability to pay that the court prescribes.

All

"The court shall consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents."

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No Not provided for
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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.

All

"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.

All

"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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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.

All

"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. § 5-4-303(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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Colorado Colo. Rev. Stat. §18-24-103(3) Collection and Distribution of Funds - Child Abuse Investigation Surcharge Fund - Creation

The court may waive all or any portion of the surcharge required by section 18-24-102 if the court finds that a person convicted of a crime against a child is

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indigent or financially unable to pay all or any portion of the surcharge. The court may waive only that portion of the surcharge that the court finds that the person convicted of a crime against a child is financially unable to pay.

Felony, Misdemeanor Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Waived by the Court (All or Portion Unable to Pay).

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California Cal. Health & Saf. Code § 11550(d) Control of Users of Controlled Substances: Addicts

(d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates this section, with

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the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and a defendant shall not be denied probation because of his or her inability to pay the fine permitted under this subdivision.

Misdemeanor

Not provided for.

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

Not provided for.

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California Cal. Pen. Code § 136.2(a)(1)(G)(i), (iv) Kathy’s Law; Electronic monitoring of defendants accused of domestic violence; Payment for electronic monitoring

(a)(1) Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction

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over a criminal matter may issue orders, including, but not limited to, the following:

(G)(i) An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.

(iv) A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.

Misdemeanor, Felony

Not provided for.

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

The local government that adopted the policy to authorize electronica monitoring pays the fee.

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California Cal. Pen. Code § 136.2(i)(1), (3) Kathy’s Law; Electronic monitoring of defendants accused of domestic violence; Payment for electronic monitoring

(1) In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family

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Code, a violation of subdivision (a) of Section 236.1, Section 261, 261.5, 262, subdivision (a) of Section 266h, or subdivision (a) of Section 266i, a violation of Section 186.22, or a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and his or her immediate family.

(3) An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.

Misdemeanor, Felony

Not provided for.

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

The local government that adopted the policy authorizing electronic monitoring pays the fee.

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California Cal. Pen. Code § 294(b) Restitution fine to be imposed on conviction of violation of specified offenses against children

(b) Upon conviction of any person for a violation of Section 261, 264.1, 285, 286, 287, or 289 or former Section 288a, where the violation is with a minor under

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the age of 14 years, the court may, in addition to any other penalty or restitution fine imposed, order the defendant to pay a restitution fine based on the defendant’s ability to pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the county children’s trust fund for the purpose of child abuse prevention.

Misdemeanor, Felony

Not provided for.

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

None

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California Cal. Pen. Code § 594(d) Vandalism; Punishment

(d) If a minor is personally unable to pay a fine levied for acts prohibited by this section, the parent of that minor shall be liable for payment of the

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fine. A court may waive payment of the fine, or any part thereof, by the parent upon a finding of good cause.

Misdemeanor, Felony

Not provided for.

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

Parent pays fine or fine waived.

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California Cal. Pen. Code § 1001.15(a),(c) Defendant accused of felony; Fee for application for diversion; Criminalistics laboratory

(a) In addition to the fees authorized or required by other provisions of law, a judge may require the payment of an administrative fee, as part of an enrollment fee

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in a diversion program, by a defendant accused of a felony to cover the actual cost of any criminalistics laboratory analysis, the actual cost of processing a request or application for diversion, and the actual cost of supervising the divertee pursuant to Chapter 2.5 (commencing with Section 1000), not to exceed five hundred dollars ($500). The fee shall be payable at the time of enrollment in the diversion program. The court shall take into consideration the defendant’s ability to pay, and no defendant shall be denied diversion because of his or her inability to pay.

(c) In addition to the fees authorized or required by other provisions of law, a judge may require the payment of an administrative fee, as part of an enrollment fee in a diversion program, by a defendant accused of an act charged as, or reduced to, a misdemeanor to cover the actual cost of processing a request or application for diversion pursuant to Chapter 2.6 (commencing with Section 1000.6), the actual costs of reporting to the court on a defendant’s eligibility and suitability for diversion, the actual cost of supervising the divertee, and for the actual costs of performing any duties required pursuant to Section 1000.9, not to exceed three hundred dollars ($300). The fee shall be payable at the time of enrollment in the diversion program. The fee shall be determined on a sliding scale according to the defendant’s ability to pay, and no defendant shall be denied diversion because of his or her inability to pay.

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

None