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|State||Citation||Description/Statute Name||Question||Brief answer||Language from the opinion||When does the case apply?|
|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 more
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+ See more
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+ See more
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|
|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 more
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).
|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+ See more
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.)
|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+ See more
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).
|Oklahoma||1999 OK AG 58||Open Records Act||Other applicable opinions||
1. The Oklahoma Open Records Act applies to criminal pleadings+ See more
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+ See more
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).
|Washington||Wash. Att'y Gen. Op. 1993 NO. 11 (1993)||Ability to pay - considered at imposition and collection of fines and fees||Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?||They must be considered both when imposing and collecting fines and fees||
[A] county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to+ See more
pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116 (1974), and summarized in State v. Earls, 51 Wn.App. 192, 19596, 752 P.2d 402 (1988), the safeguards are:(1) The requirement of repayment must not be mandatory;(2) Repayment may be imposed only upon convicted defendants;(3) Repayment may only be ordered if the defendant is or will be able to pay;(4) The financial resources of the defendant must be taken into consideration;(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
|Washington||Wash. Att'y Gen. Op. 1993 NO. 11 (1993)||Authority to set fines/fees||What authority do county or municipal courts have to set fines or fees?||Counties are given extensive freedoms to set fines and fees for municipal violations, but cannot do so in fields in which the state preempts||
Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: Any county, city, town or township+ See more
may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. The State Supreme Court has described this provision as follows: This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see also Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).Under this provision, counties may enact ordinances regarding all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people. State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, conflict with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.
|Washington||See answer for 8 above||Washington-Attorney General opinion||What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines?||See answer for 8 above||See answer for 8 above|
|Washington||Not answered||Washington-Attorney General opinion||Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law?||Not answered||Not answered|