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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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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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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
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the proceedings may only result in additional fines or non-incarceration penalties?
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
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imprisoned, as the court sees them the same as a non-indigent defendant.
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
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Siegel (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).
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
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is 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).
Revenue flow
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Alabama Ala. Att'y Gen. Op. 2003-086 Alabama-Attorney General opinion
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?
An indigent defendant facing contempt proceedings where he is sentenced to a term of imprisonment, which is suspended, is entitled to the appointment of counsel pursuant to Alabama v. Shelton.
Under Alabama v. Shelton, 122 S. Ct. 1764, 1767 (2002), a defendant is entitled to counsel if he: (1) is indigent; (2) has not waived the right to coun¬sel;
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and (3) is given a suspended sentence that may “end up in the actual depri¬vation of [his] liberty[.]” Based on the scenario you have presented, if the con¬temnor is indigent and, as it appears, he was not advised of and did not waive the right to counsel, he was entitled to an attorney at the time he pleaded guilty to the contempt charges. Consequently, he cannot be incarcerated on the con¬tempt charges. Under Shelton, appointment of counsel for indigent defendants is a con-stitutional prerequisite to the imposition of a conditional or suspended term of imprisonment. Although the contempt proceeding is considered “quasi-criminal” in nature and characterized as a “violation,” rather than a “crime” [see Ivey v. State, 698 So. 2d 179, 184 n.2 (Ala. Crim. App. 1995), aff’d, 698 So. 2d 187 (Ala. 1997)], because the defendant faces the possibility of incarceration [see ALA. CODE §13A-5-7 (1994) (stating that a defendant faces a term of imprisonment for both misdemeanors and violations)], he is entitled to counsel. See Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 25 (1981) (recognition of right to appointed counsel in a civil proceeding “where the litigant may lose his physical liberty if he loses the litigation”); see also Opinion to Rex K. Rainer, Director, Department of Finance, dated July 23, 1982, A.G. No. 82-00465; Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-036 Alabama-Attorney General opinion
The United States Supreme Court and the Supreme Court of Alabama have set forth minimal due process procedures to be afforded to a probationer in a probation revocation hearing. In a
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probation revocation hearing, the probationer must be given written notice of the claimed violations of probation, a written statement by the factfinder as to the evidence relied on, and the reasons for revoking his probation. Because review of probation revocation proceedings from district or municipal court is in the nature of certiorari, no appeal bonds would be set. The right to counsel in probation revocation proceedings is not absolute. The judge conducting the probation hearing should decide on a case-by-case basis whether due process requires that an indigent probationer be represented by counsel.
the Supreme Court of Alabama has set forth the requirements and guidelines that must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before
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his pro¬bation can be revoked. These guidelines include: 1. Written notice to the probationer of the claimed violations of probation. 2. Disclosure to the probationer of evidence against him or her. 3. Opportunity of probationer to be heard in per-son and to present witnesses and documentary evidence. 4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation). 5. A written statement by the judge as to the evi-dence relied on and reasons for revoking proba-tion. 6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound rea-son why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.) 7. We see no valid reason for having two hear¬ings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the pro¬bationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance. 8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel. 9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960). Armstrong v. State, 294 Ala. 100, 102-03, 312 So. 2d 620, 622-23 (Ala. 1975) (footnote omitted).
Enforcement
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Alabama Ala. Att'y Gen. Op. 1998-00043 Alabama-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
A municipality may enter into a contract with a pri¬vate probation service to fulfill the needs of the munic¬ipal court. Furthermore, a municipal judge can assess a supervision fee upon
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each probationer as a condition of probation. This fee, however, cannot exceed the proba¬tioner's ability to pay.
Court costs are prescribed by statute and cannot be extended. See Attorney General's Opinion to Honorable Steven E. Blair, dated August 11, 1995, A.G. No. 95-00283. The municipal probation
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statute, however, gives the judge broad authority to place conditions on probation. ALA. CODE _ 12-14-13 (1995). The statute not only pro¬vides a listing of conditions that the judge may require the probationer to comply with, but also gives the judge the authority to require the probationer to comply with "any other conditions." Id. Therefore, it is the opinion of this Office that a municipal judge can assess a super¬vision fee upon each probationer as a condition of probation. Any condition placed on a probationer that requires the payment of a fee, fine, or restitution should not exceed the probationer's ability to pay. See ALA. R. CRIM. P. 27.1, Committee Comments.
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Alabama Ala. Att'y Gen. Op. 2012-027 Alabama-Attorney General opinion Other applicable opinions Non-indigent defendants may be incarcerated for failure to pay a fine after serving his or her sentence for the underlying offense
Subject to the limitations of Rule 26.11 of the Alabama Rules of Criminal Procedure, the court may place a nonindigent defendant in jail for failure to pay a fine after
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the defendant has completed his or her sentence or probation for the underlying offense. The defendant may serve time until the fine is paid or no longer than one day for each $15 of the fine, no longer than the maximum term of imprisonment for the offense, and no longer than one year if the offense is a felony.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-336 Alabama-Attorney General opinion Other applicable opinions A municpality may publish, in a newspaper of local circulation, the names of those individuals with outstanding warrants for unpaid fines and the amount of those fines.
This Office has previously opined that municipal court records are public records to which the public has access with certain limitations as to confidential information contained therein. Opinion of
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the Attorney Gen-eral to the Honorable Bernice Kuykendall, Mayor, City of Cordova, dated September 2, 1987, A.G. No. 87-00303. As public records, the contents thereof, with certain limitations, may be published in the newspaper. Opinion of the Attorney General to the Honorable William T. Musgrove Jr., Attorney, City of Florence, dated October 6, 1988, A.G. No. 89-00003. The name, address, birth date, offense, and the amount of the past-due fine, as nonconfidential information contained in a municipal court record, may be published in a local newspaper as part of the collec-tion process. Id.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2000-020 Alabama-Attorney General opinion Other applicable opinions
When a defendant is arrested for failure to appear or failure to pay, Rule 4.3(b)(3), ARCrP, requires that a judge or magistrate conduct an initial appearance hearing within 72 hours
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of arrest if the defendant has not obtained his or her release from jail.
Regarding circumstances where a defendant fails to pay court-ordered monies, Rule 26.11, ARCrP, provides that a judge must conduct a hearing to determine the financial means of a defendant for
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the payment of court-ordered fines and costs, and authorizes imprisonment for non-indigent defendants who fail to pay. Rule 27.2, ARCrP, authorizes a judge to order a defendant to pay court costs and fines as a condition of probation. As previously discussed, in cases involving breaches of con¬ditions of probation, including conditions requiring payment of fines, costs, restitution, or other court-ordered assessments, the court must con¬duct an initial appearance hearing upon the arrest of a probationer before the probationer is incarcerated. The court must inquire into the proba¬tioner’s financial status and determine whether the probationer is indigent since incarceration of an indigent for nonpayment is prohibited.
Enforcement
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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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Georgia 1989 Ga. Op. Atty. Gen. 160 (Ga.A.G.), Ga. Op. Atty. Gen. No. U89-8, 1989 WL 264820 Authority to delegate power of collection of probation supervision services to private actors Which fines and/or fees may be collected by a private vendor? When it comes to probation services at least, County governments may not enter into agreements with private corporations for probation services unless authorized by legislation.
O.C.G.A. § 42–8–43 provides that those county probation systems in existence on February 8, 1956, would not be affected by the passage of the State-wide Probation Act, and further provides
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that ‘[t]he personnel of the [county] system shall continue to be appointed and employed under the same procedure as used prior to February 8, 1956, and the system shall be financed under the same method as it was financed prior to February 8, 1956.’ Based on this provision, it is my opinion that any remaining county probation systems could not be converted into a system operated by a private corporation without legislative authority; therefore, the Community Corrections Corporation's proposal could not be accepted by any county still operating a county probation system.
Fines and fees
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Georgia 1983 Ga. Op. Atty. Gen. 247 (Ga.A.G.), Ga. Op. Atty. Gen. No. U83-29, 1983 WL 41746 Fees for feeding prisoners Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? In the limited context of feeding prisoners, sheriffs may not be paid fees for feeding prisoners in their custody, either directly or via a contract entered into after competitive bidding.
Finally, you suggest that such a contract might create a conflict of interest because the sheriff's legal duty to care for county prisoners would be at odds with his financial
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interest in his contract. I agree with your conclusion. To the extent that the sheriff would be responsible to supervise the performance of one contracting to feed county prisoners, this conflict of interest, standing alone, would make the sheriff ineligible to enter into such a contract. An analogous situation was addressed in Op. Att'y Gen. U83-8 (copy attached), and it was concluded that a county commission chairman could not contract to supply groceries to his county. Use of a sealed bid procedure to award the contract was found not to avoid the conflict of interest because the chairman would still be required to supervise performance under the contract. After Op. Att'y Gen. U83-8 was issued, the General Assembly acted to authorize certain transactions between political subdivisions and their officers and employees, including sales of personal property made pursuant to sealed competitive bids. O.C.G.A. § 16-10-6(a)(2)(B) (Ga. Laws 1983, pp. 1326, 1339). The new Code section does not affect your question because in my view the feeding of prisoners does not constitute the sale of personal property to the county.
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Georgia Ga. Op. Atty. Gen. No. U92-4 (Ga.A.G.), 1992 WL 478489 Georgia-Attorney General opinion Other applicable oppinions
[A] sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of
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a surcharge as a condition precedent to service of the sentence.
Pretermitting any discussion of the sheriff's authority to impose such a surcharge, Georgia law makes clear that the sheriff may not condition service of the sentence upon payment of the
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surcharge. The sheriff, by virtue of his office, is jailer of the county. O.C.G.A. § 42–4–1(a). As such, he has a legal duty to take into custody those convicted of crimes and sentenced to a term of imprisonment. O.C.G.A. § 42–4–12. The refusal to do so is a felony offense. Id. Further, a writ of mandamus may issue to compel performance of this duty. Griffin v. Chatham County, 244 Ga. 628, 629 (1979). For the foregoing reasons, it is my unofficial opinion that a sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of a surcharge as a condition precedent to service of the sentence.
Fines and fees
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Georgia 1985 Ga. Op. Atty. Gen. 203 (Ga.A.G.), Ga. Op. Atty. Gen. No. U85-32, 1985 WL 68946 Collection of public defender fees from indigent defendants Superior court's ability to collect fees from an indigent defendant for representation by a public defender is limited to the amount that indigent defendant can afford to reimburse.
In my opinion, O.C.G.A. § 17-12-10(c) governs the extent to which reimbursement to the county may be required from indigent defendants. The power to tax the costs of representation by
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a public defender is, under the statute, limited ‘[t]o the extent that [the defendant] . . . is able to provide for the employment of an attorney, the other necessary services and facilities of representation, and court costs . . .’ Thus, the court would not be authorized to order reimbursement beyond the indigent defendant's ability to pay for the services rendered by the public defender. However, this does not exclude partial reimbursements where the defendant is capable of paying some portion of the expenses of representation, as where, for example, the defendant is neither destitute nor a pauper. O.C.G.A. § 17-12-10(a)…. …In summary, it is my unofficial opinion that under O.C.G.A. § 17-12-10(c) a superior court may tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but the court may only order such payments or reimbursements to the extent of the individual defendant's financial capability to pay.
Fines and fees