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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Massachusetts Mass. Gen. Laws ch. 279, § 1 Suspension of execution; payment of fine; probation; revocation of suspension; exceptions

When a person convicted before a court is sentenced to imprisonment, the court may direct that the execution of the sentence, or any part thereof, be suspended and that he

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be placed on probation for such time and on such terms and conditions as it shall fix. When a person so convicted is sentenced to pay a fine and to stand committed until it is paid, the court may direct that the execution of the sentence, or any part thereof, be suspended for such time as it shall fix and in its discretion that he be placed on probation on condition that he pay the fine within such time. If the fine does not exceed two hundred dollars and the court finds that the defendant is unable to pay it when imposed, the execution of the sentence shall be suspended and he may in its discretion be placed on probation, unless the court shall find that he will probably default, or that such suspension will be detrimental to the interests of the public. 

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Not provided for

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

The execution of the sentence, or part of the sentence, may be suspended and the court may in its discretion place the person on probation.

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Massachusetts Mass. Gen. Laws ch. 266, § 111B Motor vehicle insurance policies; penalty for fraudulent claims

If a defendant who is required to make restitution defaults in any payment of restitution or installment thereof, the court shall hold him in contempt unless said defendant has made

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a good faith effort to pay such restitution. If said defendant has made a good faith effort to pay such restitution, the court may modify the amount, time or method of payment, but may not grant complete remission from payment of restitution.

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N/A

At enforcement of fine or fee Not provided for Not provided for No

May modify the amount, time or method of payment, but may not grant complete remission.

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Massachusetts Mass. Gen. Laws ch. 127, § 145(a)-(b),(d),(f) Discharge of Poor Prisoners Held for Nonpayment of Fines.

(a) A court shall not commit a person to a correctional facility solely for non-payment of money owed if such person has established, by a preponderance of the evidence, that the

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person is unable to pay the fine without causing substantial financial hardship to the person or their immediate family or dependents. A court shall determine whether the payment of a fine would cause such substantial financial hardship after a hearing and, in making such determination, shall consider the person’s employment status, income, financial resources, living expenses, number of dependents and any special circumstances that may affect a person’s ability to pay.

(b) A court shall not commit a person to a correctional facility for non-payment of money owed if such a person is not represented by counsel for the commitment proceeding, unless such person has waived counsel. A person deemed indigent for the purpose of being offered counsel and who is assigned counsel for the commitment portion of a proceeding solely for the nonpayment of money owed shall not be assessed a fee for such counsel.

(d) If a court determines that the payment of a fine would cause a substantial financial hardship pursuant to subsection (a), the court may impose an alternative to a fine or sentence to a correctional facility including, without limitation, community service.

(f) A person confined to a correctional facility for non-payment of money owed may petition the court for discharge from the correctional facility for an inability to pay the money owed due to a substantial financial hardship. If, after a hearing pursuant to subsection (a), the court determines that the person is not able to pay the money owed without causing a substantial financial hardship to the person, or the person’s immediate family or dependents, the court shall discharge the person from the correctional facility. No filing fee shall be charged for the filing of the petition.

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Substantial financial hardship to the person or their immediate family or dependents; indigdent; 

At enforcement of fine or fee Not provided for Not provided for No

Discharge from jail when confined for nonpayment of fine; alternative to a fine or sentence to a correctional facility including, without limitation, community service; not assessed a fee for counsel.

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Massachusetts Mass. Gen. Laws ch. 266, § 27A Removing or Concealing Motor Vehicles or Trailers to Defraud Insurers; Reimbursement of Insurers.

If a defendant who is required to make restitution defaults in any payment of restitution or installment thereof, the court shall hold him in contempt unless said defendant has made

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a good faith effort to pay such restitution. If said defendant has made a good faith effort to pay such restitution, the court may modify the amount, time or method of payment, but may not grant complete remission from payment of restitution.

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N/A

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

modify the amount, time or method of payment, but may not grant complete remission from payment of restitution.

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Idaho Idaho Code § 31-3201E Drug Court and Mental Health Court Fee -- Drug Court and Mental Health Court Fund

Each person admitted into a drug court or mental health court shall pay a drug court and mental health court fee in an amount not to exceed three hundred dollars

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($ 300) per month or a lesser amount as set by the administrative district judge for participants in the drug court and mental health court. For good cause, the judge presiding over a drug court or mental health court may exempt a participant from paying all or a portion of the drug court and mental health court fee. The fee imposed under this section shall be paid to the clerk of the district court for deposit into the county drug court and mental health court fund which is hereby created in each county that has a drug court or mental health court. Moneys in this fund may be accumulated from year to year and shall be expended exclusively for expenses incurred in connection with the drug court or mental health court including, but not limited to, substance abuse treatment, mental health treatment, drug testing, supervision and private counseling services utilized by the drug court or mental health court. Any failure to pay the drug court and mental health court fee may constitute grounds for termination from drug court or mental health court by the court, provided this shall not be the exclusive remedy for collection of the fee. If a participant is terminated from the drug court or mental health court prior to successful completion of the program and a judgment of conviction is entered against the defendant, any unpaid drug court and mental health court fee shall be ordered by the court in the judgment of conviction, provided the court may order such fee to be waived if the court determines that the person is indigent and unable to pay the fee. Such fee shall be in addition to all other fines and fees levied, and the payment of such fee may also be ordered as a term and condition of probation.

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"The person is indigent and unable to pay the fee."

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

The court may order such fee to be waived.

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Massachusetts Mass. Gen. Laws ch. 279, § 1A Suspension of execution of sentence; probation; child support payments

If during or at the end of said period the probation officer shall report that the fine is in whole or in part unpaid, and in his opinion the person

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is unwilling or unable to pay it, the court may either extend said period, place the case on file or revoke the suspension of the execution of the sentence. When such suspension is revoked, in a case where the fine has been paid in part, the defendant may be committed for default in payment of the balance, and may also be committed for the term of imprisonment fixed in the original sentence. 

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

Extend probation period

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Missouri Mo. Ann. Stat. § 559.021(6) Conditions of probation--compensation of victims--free work, public or charitable--defendant not an employee for workers’ compensation purposes--payment to county restitution fund, when

A defendant who fails to make a payment to a county law enforcement restitution fund may not have his or her probation revoked solely for failing to make such payment

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unless the judge, after evidentiary hearing, makes a finding supported by a preponderance of the evidence that the defendant either willfully refused to make the payment or that the defendant willfully, intentionally, and purposefully failed to make sufficient bona fide efforts to acquire the resources to pay.

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Not provided for

At enforcement of fine or fee Burden on government to show ability to pay Determined by judge after hearing Yes

Probation not revoked

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Missouri Mo. Ann. Stat. § 488.020 Collection of court costs, when, how

Upon notification to the party from whom the fee is due, a failure to pay the fee after such notice, and a showing of the party's ability to pay the

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fee, the court may hold the party in contempt.

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Not provided for

At enforcement of fine or fee Not provided for Not provided for No

N/A

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Nebraska Neb. Rev. Stat. § 29-2412(2) Fine and costs; nonpayment; commutation upon confinement; credit; amount.

(2) Whenever it is made satisfactorily to appear to the district court, or to the county judge of the proper county, after all legal means have been exhausted, that any person

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who is confined in jail for any fines or costs of prosecution for any criminal offense has no estate with which to pay such fines or costs, it shall be the duty of such court or judge, on his or her own motion or upon the motion of the person so confined, to discharge such person from further imprisonment for such fines or costs, which discharge shall operate as a complete release of such fines or costs.

All

No estate with which to pay such fines or costs

At enforcement of fine or fee Not provided for Not provided for No

If imprisoned for nonpayment of fines and costs, then discharged from prison.

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Nebraska Neb. Rev. Stat. § 29-2262.06(4) Fees; waiver; when; failure to pay; effect

The court shall waive payment of the monthly probation programming fees in whole or in part if after a hearing a determination is made that such payment would constitute an

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undue hardship on the offender due to limited income, employment or school status, or physical or mental handicap. Such waiver shall be in effect only during the period of time that the probationer or participant in a non-probation-based program or service is unable to pay his or her monthly probation programming fee.

All

Undue hardship due to limited income, employment or school status, or physical or mental hardship

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

Waive payment of the monthly probation programming fees

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Nebraska Neb. Rev. Stat. § 29-2281 Restitution; determination of amount; manner of payment

To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by

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the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant’s earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceration. A person may not be granted or denied probation or parole either solely or primarily due to his or her financial resources or ability or inability to pay restitution. The court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant’s final release date from imprisonment, whichever is later

All

Defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of

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a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceration.

At enforcement of fine or fee Not provided for Determined by judge after hearing Yes

N/A

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Idaho Idaho Code § 19-4904 Inability to Pay Costs

If the applicant is unable to pay court costs and expenses of representation, including stenographic, printing, witness fees and expenses, and legal services, these costs and expenses, and a court-appointed attorney may be made

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available to the applicant in the preparation of the application, in the trial court, and on appeal, and paid, on order of the district court, by the county in which the application is filed.

All

"Unable to pay court costs and expenses of representation."

At enforcement of fine or fee Not provided for Not provided for No

"These costs and expenses, and a court-appointed attorney may be made available to the applicant."

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Nebraska Neb. Rev. Stat. § 29-2208(1)-(2),(4) Fines or costs; person financially unable to pay; hearing; determination; court or magistrate; powers; order; operate as release

(1) A person who has been ordered to pay fines or costs and who has not been arrested or brought into custody as described in subdivision (1)(a) of section 29-2412

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but who believes himself or herself to be financially unable to pay such fines or costs may request a hearing to determine such person's financial ability to pay such fines or costs. The hearing shall be scheduled on the first regularly scheduled court date following the date of the request. Pending the hearing, the person shall not be arrested or brought into custody for failure to pay such fines or costs or failure to appear before a court or magistrate on the due date of such fines or costs.
(2) At the hearing, the person shall have the opportunity to present information as to his or her income, assets, debts, or other matters affecting his or her financial ability to pay. Following the hearing, the court or magistrate shall determine the person's financial ability to pay the fines or costs, including his or her financial ability to pay in installments as described in section 29-2206.
(4) If the court or magistrate determines that the person is financially unable to pay the fines or costs, the court or magistrate:
(a) Shall either:
(i) Enter an order pursuant to subsection (5) of this section discharging the person of such fines or costs; or
(ii) If the person is subject to an order to pay installments pursuant to section 29-2206, the court or magistrate shall either enter an order pursuant to subsection (5) of this section discharging the person of such obligation or make any necessary modifications to the order specifying the terms of the installment payments as justice may require and that will enable the person to pay the fines or costs; and
(b) May order the person to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279.

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Not provided for

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

Waive fines or costs; discharge person of installment order to pay fines or costs; make any necessary modifications to the order specifying the terms of the installment payments as justice may

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require and that will enable the person to pay the fines or costs; order the person to complete community service.

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New Hampshire N.H. Rev. Stat. § 622:31-a Medical Care; Inmate Copayment Required

An inmate shall not be refused medical treatment for financial reasons.

All

N/A

At enforcement of fine or fee Not provided for Not provided for Yes Not provided for
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New Hampshire N.H. Rev. Stat. Ann. § 504-A:13(I) Supervision and Service Charges

The court shall establish a supervision fee for probationers, and the parole board shall establish a supervision fee for parolees. The fee shall not be less than $40 a month,

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unless waived in whole or in part by the court, board or commissioner, and may be any greater amount as established by the court or board. This fee shall be considered a condition of release, and failure to satisfy this obligation shall be grounds for a violation hearing, unless the probationer or parolee has been found to be indigent and, for that reason, unable to pay the fee. 

All

Indigent

At enforcement of fine or fee Not provided for Not provided for No

Parole/probation not revoked for nonpayment.

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New Hampshire N.H. Rev. Stat. Ann. § 651:66 Revocation of Restitution

The supervising agency, or the offender who has been sentenced to pay restitution and has not inexcusably defaulted in payment thereof, may at any time petition the court which sentenced

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him for a revocation of any unpaid portion of the restitution. If the court finds that the circumstances which warranted the imposition of the restitution have changed, or that it would otherwise be unjust to require payment, the court may revoke the unpaid portion of the restitution in whole or in part, or modify the time and method of payment.

All

Circumstances which warranted the imposition of the restitution have changed, or that it would otherwise be unjust to require payment.

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

Revoke the unpaid portion of the restitution in whole or in part, or modify the time and method of payment.

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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.

All

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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North Carolina N.C. Gen. Stat. Ann. § 15A-1362(a)-(b) Imposition of fines

(a)General Criteria.--In determining the method of payment of a fine, the court should consider the burden that payment will impose in view of the financial resources of the defendant.

(b) Installment

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or Delayed Payments.--When a defendant is ordered to pay a fine, the court may provide for the payment to be made within a specified period of time or in specified installments. If no such provision is made a part of the sentence, the fine is payable forthwith.

All

Burden that payment will impose in view of the financial resources of the defendant

At enforcement of fine or fee Not provided for Not provided for No

Installment or delayed payments.

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North Carolina N.C. Gen. Stat. Ann. § 15A-1364(c) Response to nonpayment

(c) Modification of Fine or Costs.--If it appears that the default in the payment of a fine or costs is not attributable to failure on the defendant's part to make

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a good faith effort to obtain the necessary funds for payment, the court may enter an order: . . . (1) Allowing the defendant additional time for payment; or (2) Reducing the amount of the fine or costs or of each installment; or (3) Revoking the fine or costs or the unpaid portion in whole or in part.

All

Default in payment not attributable to failure on defendant's part to make good faith effort to obtain necessary funds

At enforcement of fine or fee Not provided for Not provided for No

Modification, revocation of fine/fee, or payment plan.

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Ohio Ohio Rev. Code § 2947.14 Satisfaction of fine

(A) If a fine is imposed as a sentence or a part of a sentence, the court or magistrate that imposed the fine may order that the offender be committed to

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the jail or workhouse until the fine is paid or secured to be paid, or the offender is otherwise legally discharged, if the court or magistrate determines at a hearing that the offender is able, at that time, to pay the fine but refuses to do so. The hearing required by this section shall be conducted at the time of sentencing.

(B) At the hearing, the offender has the right to be represented by counsel and to testify and present evidence as to the offender’s ability to pay the fine. If a court or magistrate determines after considering the evidence presented by an offender, that the offender is able to pay a fine, the determination shall be supported by findings of fact set forth in a judgment entry that indicate the offender’s income, assets, and debts, as presented by the offender, and the offender’s ability to pay.

(C) If the court or magistrate has found the offender able to pay a fine at a hearing conducted in compliance with divisions (A) and (B) of this section, and the offender fails to pay the fine, a warrant may be issued for the arrest of the offender. Any offender held in custody pursuant to such an arrest shall be entitled to a hearing on the first regularly scheduled court day following the date of arrest in order to inform the court or magistrate of any change of circumstances that has occurred since the time of sentencing and that affects the offender’s ability to pay the fine. The right to the hearing on any change of circumstances may be waived by the offender.

At the hearing to determine any change of circumstances, the offender has the right to testify and present evidence as to any portion of the offender’s income, assets, or debts that has changed in such a manner as to affect the offender’s ability to pay the fine. If a court or magistrate determines, after considering any evidence presented by the offender, that the offender remains able to pay the fine, that determination shall be supported by a judgment entry that includes findings of fact upon which such a determination is based.

(D) No person shall be ordered to be committed to a jail or workhouse or otherwise be held in custody in satisfaction of a fine imposed as the whole or a part of a sentence except as provided in this section. Any person imprisoned pursuant to this section shall receive credit upon the fine at the rate of fifty dollars per day or fraction of a day. If the unpaid fine is less than fifty dollars, the person shall be imprisoned one day.

(E) No commitment pursuant to this section shall exceed six months.

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Case-by-case analysis. Determined based upon income, assets, and debts.

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

Not imprisoned for nonpayment.