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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).
|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+ See more
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.
|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+ See more
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|
|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).