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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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Arkansas Opinion No. 96-208 Imprisonment for failure to pay - double jeopardy Other applicable opinions
No, it does not constitute double jeopardy to imprison a person for failure to pay a fine when the person has already had his probation revoked, and has served a
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term of imprisonment, for failing to satisfy, as a condition of his probation, his obligation to pay the fine -- if the person is not indigent.
"such a course of action is authorized by law and does not violate U.S. Const. amend. 5 or Ark. Const. art. 2,
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§ 8, the constitutional provisionsprohibiting the placing of a person in jeopardy more than once for the same offense."
Enforcement
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Arkansas Opinion No. 2008-153 district court discretion to refuse probation sentence
Q2) Does a circuit or district court have discretion to refuse to sentence a defendant to probation pursuant to a plea agreement where the only stated reason for rejection of
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probation is due to an indigent defendant's inability to pay court costs prior to the entry of the plea of guilty? Answer) No
I believe a court's refusal to consider probation as a sentencing option purely because of a defendant's indigency -- which is what your question appears to contemplate -- might well
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be subject to challenge as a violation of the Equal Protection guarantees set forth in the Fourteenth Amendment to the United States Constitution and in article 2, §§ 2 and 3 of the Arkansas Constitution.
Ability to pay
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Delaware Del. Op. Atty. Gen. 97-IB04 (Del.A.G.), 1997 WL 111291 Town's authority to establish a mail-in center for collecting fines and fees for motor vehicle violations. Other applicable opinions
Under State law, for the Town to operate a voluntary assessment system, summonses issued by the Town police must be returnable to the Mayor's Court. Only the ?Courts of the
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Justices of the Peace may establish a mail-in fine center, ... in which case the summons may be made returnable to the applicable mail-in fine center.? 21 Del. C. Section 709(a) The statute does not authorize a municipality to establish a mail-in fine center for payment of fines for motor vehicle offenses which occur within the town. Nor can a town avail itself of the voluntary assessment procedure unless it has an Alderman's or Mayor's Court that is ?duly established.? 21 Del. C. Section 703(d). Stated differently, there must be an actual court, to which payments for motor vehicle offenses can be remitted ?to dispose of the charge without the necessity of personally appearing in the court to which the summons is returnable.? Id. Section 709(a). In conclusion, the Town of Elsmere is not an entity designated by statute to receive criminal history information from DELJIS. It may only operate a voluntary assessment system through a duly established Alderman's or Mayor's Court. In the absence of such a court, it may not charge, impose or collect ?court costs? or any similar fee from persons charged with motor vehicle violations within its boundaries.
Enforcement
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Delaware Del. Op. Atty. Gen. 93-I004 (Del.A.G.), 1993 WL 594345 Department of Correction's ability to assess a supervision fee on offenders and determine ability to pay Other applicable opinions
The Department, subject only to powers vested in the judicial and certain executive departments and officers of the State, shall have the duties set forth in this chapter and the
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exclusive jurisdiction over the care, charge, custody, control, management, administration and supervision of: (14) Collecting as a condition of supervision, a fee based on the Accountability Level of the offender. An offender sentenced to an Accountability Level I sanction shall be charged a $10 monthly fee; an offender sentenced to an Accountability Level II sanction shall be charged a $20 monthly fee; and an offender sentenced to an Accountability Level III sanction shall be charged a $25 monthly fee. The Director of Community Services shall develop policies and procedures with regard to determining an offender's ability to pay the monthly fee. Such policies and procedures shall be applied on a consistent basis to all offenders, and shall be subject to approval by the Commissioner of Correction. In the event the Department determines an offender is unable to pay the monthly fee due to lack of employment or other significant extenuating circumstances, such as an offender's responsibility to remit payment for victim compensation, restitution or child support, said inability shall not constitute a violation of supervision. The offender shall remain liable to pay the fee at such time as the Department determines he or she is able to do so. (Emphasis Supplied) For the reasons outlined below, we conclude that the Department is permitted to assess a supervision fee on offenders sentenced prior to the effective date of 11 Del.C. Sec. 6504(14).
Ability to pay
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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.”
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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.”