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State Citation Description/Statute Name Question Brief answer Language from the opinion When does the case apply?
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Michigan Mich. Op. Att'y Gen. (1998) Opinion No. 6995 Michigan-Attorney General opinion Other applicable opinions
A prosecutor is not authorized by law to require a criminal defendant to pay costs as a condition for reducing or dismissing criminal charges pending against the defendant. A court
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may, however, when sentencing a convicted defendant, impose such costs as are permitted by statute, including those permissible costs agreed to between the prosecutor and the defendant as part of a plea bargain.
Criminal prosecutions are governed by the Michigan Code of Criminal Procedure (Code), 1927 PA 175, MCL 760.1 et seq; MSA 28.841 et seq. The Code, at Chapter XI, MCL 771.1
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et seq; MSA 28.1131 et seq, authorizes the imposition of costs in criminal cases. If a defendant has been found guilty, and if it appears to the satisfaction of the court that the defendant is an appropriate candidate, the court may place the defendant on probation. Section 1. As a condition of probation, the court may require the defendant to pay costs. Section 3(2)(c). Such costs, however, are limited to expenses specifically incurred in prosecuting the defendant, in providing legal assistance to the defendant, and in providing probation supervision of the defendant. Section 3(4).
Fines and fees
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Michigan Mich. Op. Att'y Gen. (2008) Opinion No. 7217 Michigan-Attorney General opinion The use of funds from criminal fines and assessments are restricted by provisions of the Michigan State Constitution.
However, the Legislature should be aware of the limitations imposed by Const 1963, art 8, § 9, which requires that fines assessed for any breach of the penal laws be
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used to support libraries. If excess revenue in the Crime Victim's Rights Fund is used for purposes other than to enforce and pay for the crime victim rights enumerated in art 1, § 24, the use could face scrutiny to determine if the assessments conflict with art 8, § 9 or other constitutional provisions. . . . Therefore, to the extent that the Legislature intends to authorize uses of the Fund to pay for the constitutionally enumerated crime victim's rights, it must consider whether each proposed use is within the language of art 1, § 24, given the principles of constitutional construction that guide the Court.
Fines and fees
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West Virginia W. Va. Code §48-1-304 W.V. Code
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if
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the proceedings may only result in additional fines or non-incarceration penalties?
In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that
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the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.
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West Virginia
(1) State v. Stamm, 222 W. Va. 276, 278, 664 S.E.2d 161, 163 (2008) (2) State ex rel. Zirkle v. Fox, 203 W. Va. 668, 669, 510 S.E.2d 502, 503 (1998) (3)
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W. Va. Code Ann. § 61-11A-5
Case Law / W.V. Code Who has the burden of proof in an ability to pay determination? What is the standard of proof required?
(1) In criminal failure to meet obligation to minor (W. Va. Code § 61-5-29), the State has the burden of proof and the standard is beyond a reasonable doubt. (2)However,
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in civil contempt cases, if contemnor alleges financial inability to pay, he bears the burden of proving such inability to comply with a court mandate in order to avoid imprisonment. (3)Finally, in restitution determinations, the burden is on the defendant and the standard is a preponderance of the evidence.
Where a contemnor alleges financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to comply with a court mandate in order to
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avoid imprisonment.
Ability to pay
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West Virginia (1)State v. Murrell, 201 W.Va. 648, 499 S.E.2d 870 (1997)(2) W. Va. Code §50-3-2. Case Law Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?
No. Ability to pay does not have to be considered when imposing fines or fees; certain fines and fees are required by law to be imposed (see, e.g., W. Va.
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Code §50-3-2.)
“An individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines
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pursuant to statute.”
Ability to pay
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West Virginia W. Va. Code §8-10-1, 2; W. Va. Code § 62-4-16. W.V. Code What authority do county or municipal courts have to set fines or fees?
Municipal courts have power to impose fines, penalties and cost when not otherwise provided by charter provision or general law. However, municipal judges may substitute community service in lieu of
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sentence of incarceration or imposition of fine.
Fines and fees
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West Virginia W. Va. Const. art. VIII, § 3 State Constitution What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? West Virginia's Constitution allows the Court of Appeals to impose binding state-wide rules. No on point Attorney General Opinion.
“The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice
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and procedure, which shall have the force and effect of law.”
Enforcement
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West Virginia W. Va. Code § 7-8-14(c) W.V. Code Other applicable opinions
“A defendant who has been sentenced to pay costs and who is not in willful default in the payment of the costs may at any time petition the sentencing court
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for remission of the payment of costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's family or dependents, the court may excuse payment of all or part of the amount due in costs, or modify the method of payment.”
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North Carolina N.C.A.G. Mar. 21, 1996 RE: Advisory Opinion; Exceptions to Statutory Exemptions for Execution of Judgment on Criminal Restitution Orders Other applicable opinions North Carolina is not barred from structuring a program to collect costs; however, the state's initiatives, must be narrowly drawn so as to avoid chilling the indigent's right to counsel
North Carolina [is not] barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The state's initiatives in
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this area naturally must be narrowly drawn to avoid either chilling the indigent's exercise of the right to counsel, or creating discriminating terms of repayment based solely on the defendant's poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful state objectives. Id. at 123-124. (emphasis added.)
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North Carolina N.C.A.G. June 10, 1980 Criminal Law and Procedure; Sentences; Probation; Restitution; Bankruptcy Proceedings Person who received illegal gains as a part of criminal activity may not discharge legal financial obligations in bankruptcy
It would thus be against our statute and public policy to permit a defendant who has received illegal gains and who was ordered to make restitution as a condition of
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his sentence to vacate such conditions by a discharge in bankruptcy." People v. Mosesson, 356 N.Y.S. 2d 483, 484-85, (1974). See also: People on Inf. of Anerbach v. Topping Bros., 359 N.Y.S. 2d 985 (1974).
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New Mexico State v. Mabry, 630 P.2d 269, 273 (N.M. 1981)
"[T]he scope of our review is here limited to whether the Legislature had the power to enact these statutes. It has long been recognized in this state that it is
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solely within the province of the Legislature to establish penalties for criminal behavior."
Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Courts can seemingly impose or enforce any court debt that is permitted by the legislature revenue flow
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Oklahoma 1999 OK AG 58 Open Records Act Other applicable opinions
1. The Oklahoma Open Records Act applies to criminal pleadings
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2. Courts and District Attorneys must provie "prompt reasonable access" 3. District Attorneys must maintain confidential records
¶15 It is, therefore, the Opinion of the Attorney General that: 1. The pleadings in a criminal case, particularly the information, are "records" within the meaning of the Oklahoma Open
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Records Act, 51 O.S. 24A.3 (1998). A court clerk must make such pleadings available for public inspection and copying once the district attorney has filed the pleading with the court clerk, 51 O.S. 24A.5 (1998), unless the pleading has been sealed by a court or is protected by a privilege of confidentiality, such as the confidentiality of a grand jury indictment by 22 O.S. 385, until such time as the order of the court expires or is removed and until the grand jury indictment is made public pursuant to statutory provision. A district attorney may keep information contained within the district attorney's litigation files confidential and so not disclose an information or other pleadings. See 51 O.S. 24A.12 (1991). 2. A court clerk or district attorney has no authority to withhold public records from inspection and copying. Such officers must provide "prompt, reasonable access" to the public pursuant to 51 O.S. 24A.5 (1998). This generally may include only the time required to locate and compile such public records. Id. 3. A district attorney may keep confidential records contained in the litigation files of that office. Police departments are not required to provide public access to records of the police department except as provided in Section 51 O.S. 24A.8 of the Open Records Act or pursuant to court order. Neither a district attorney nor a police department must make available for public inspection and copying a record which includes a list of all charges contained in an information. See 51 O.S. 24A.2 - 51 O.S. 24A.8 and 51 O.S. 24A.12 (1998).
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