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50-State Criminal Justice Debt Reform Builder Bringing transparency to areas of significant legal complexity.
Attorney General Opinions
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11 Results
| State | Citation | Description/Statute Name | Question | Brief answer | Language from the opinion | When does the case apply? | |
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Louisiana | Op. Att'y Gen. No. 97-237 (June 18, 1997) | Uniform eligibility criteria for indigency standards | Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? | Unclear, but different municipalities are required by statute to have the same standards |
(d) uniform eligibility criteria for determining indigency and the eligibility of defendants to qualify for indigent defender representation at the district and state level;(citing language from statute creating the Louisiana + See moreDefense Board)
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Ability to pay |
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Louisiana | Op. Att'y Gen. No. 95-449 (Nov. 8, 1995) | Collection contracts with private vendors | Which fines and/or fees may be collected by a private vendor? | no stated limit |
You have requested our opinion as to whether it is permissible for the Sheriff, with the formal approval of the District Court, to enter into such an agreement. If so, + See moreyou ask whether the public bid laws apply in procuring the services of a collection agency. We have reviewed the constitutional and statutory provisions relating to the powers and duties of sheriffs and can find nothing that would prohibit the Sheriff from entering into such an agreement. Our opinion is predicated upon the concurrence to the agreement of all parties enumerated hereinabove, and a formal order of the District Court Judge authorizing the contract and the percentage and/or fee to be retained by the collection agency. As discussed, this opinion is limited to only those fines that have been previously assessed, are currently delinquent and which you have been unable to collect. While a contract for the services of a collection agency are not required to be publicly bid by the Sheriff, we recommend that you solicit several proposals to ensure the confection of a contract that is most favorable to your office.
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Revenue flow |
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Louisiana | Op. Att'y Gen. No. 83-183 (June 17, 1983) | Court's authority to impose costs | Other applicable opinions |
It is well settled that the recovery and allowance of costs in criminal prosecutions is dependent entirely on statutory provisions. Absent statutory authority, a court has no power to award + See morecosts against a defendant on conviction. See C. J. S. Costs Section 435, 437.
Op. Att'y Gen. No. 83-183 (June 17, 1983)
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Fines and fees | |
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California | 65 Cal. Op. Att'y Gen. 581 (1982) | "May a penalty assessment be levied against a criminal defendant who does not have a present ability to pay such assessment?" |
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 + See morethe proceedings may only result in additional fines or non-incarceration penalties?
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Indigent defendants cannot be imprisoned solely because they cannot pay a penalty. However, when indigent defendants refuse or fail to meet the terms of an alternative option, they can be + See moreimprisoned, as the court sees them the same as a non-indigent defendant.
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The effect of Antazo was to bar a trial judge from sending a defendant to jail or prison solely because he was unable to pay the monetary penalty. (In re + See moreSiegel (1975) 45 Cal.App.3d 843, 846.) However, as Antazo makes clear, such a penalty may nevertheless be imposed upon an indigent in certain circumstances (3 Cal.3d 100, 116):‘[O]ur holding is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent. When the indigent offender refuses to avail himself of such alternatives at the inception, or defaults or otherwise fails to meet the conditions of the particular alternative which is offered him without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent. When either of these conditions obtain the offender's indigency ceases to be dispositive and he may, consistently with the mandate of the equal protection clause, be relegated to ‘working out’ his fine by imprisonment.' 65 Cal. Op. Att'y Gen. 581 (1982).
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Ability to pay |
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California | 66 Cal. Op. Att'y Gen. 440 (1983). | Personal use of fines and fees prohibited | Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? | Judges cannot receive fines or fees for personal use. |
Article VI, section 17, of the California Constitution, provides: “A judge of a court of record may not practice law and during the term for which the judge was selected + See moreis ineligible for public employment or public office other than judicial employment or judicial office. A judge of the superior or municipal court may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge. “A judicial officer may not receive fines or fees for personal use.” 66 Cal. Op. Att'y Gen. 440 (1983).
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Revenue flow |
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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 + See morethe proceedings may only result in additional fines or non-incarceration penalties?
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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 + See morethe 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) + See moreW. Va. Code Ann. § 61-11A-5
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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, + See morein 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.
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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 + See moreavoid imprisonment.
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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. + See moreCode §50-3-2.)
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“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 + See morepursuant to statute.”
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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 + See moresentence of incarceration or imposition of fine.
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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 + See moreand procedure, which shall have the force and effect of law.”
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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 + See morefor 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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