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|State||Citation||Description/Statute Name||Question||Brief answer||Language from the opinion||When does the case apply?|
|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. § 42843 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+ See more
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|
|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+ See more
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.
|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+ See more
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+ See more
surcharge. The sheriff, by virtue of his office, is jailer of the county. O.C.G.A. § 4241(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. § 42412. 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|
|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+ See more
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|
|Georgia||1987 Ga. Op. Atty. Gen. 96 (Ga.A.G.), Ga. Op. Atty. Gen. No. U87-4, 1987 WL 119551||Fees and expenses of medical examining teams and hospital committees||Fees for psychiatric examinations performed on defendant in a criminal case should not be imposed on defendant but on the county treasury.||
In neither the civil nor criminal context is the cost of these examinations and testimony placed on the person to be examined, or even on the person or entity initiating+ See more
the legal action. The mental retardation comprehensive evaluating teams are statutorily required to be provided by the State Department of Human Resources. O.C.G.A. § 37-4-40. In the criminal context, psychiatric examinations of defendants are properly a charge upon the county treasury, whether required to benefit the defendant, Ake v. Oklahoma, 470 U.S. 68 (1985), or as an aid to the court during trial or prior to sentencing, O.C.G.A. §§ 17-7-130.1, 17-7-131; Lingo v. State, supra. Op. Att'y Gen. U85-29 29. In regard to the latter, the Georgia Supreme Court has said that the psychiatrist appointed by the court for a sanity examination of the defendant may not be regarded as a prosecution witness, but is instead a witness for the court. Massey v. State, 226 Ga. 703, 704 (1970). Nor is his testimony subject to exclusion by virtue of the defendant's psychiatrist-patient privilege. Pierce v. State, 243 Ga. 454 (1979).
|Fines and fees|
|Maryland||83 Md. Op. Att'y Gen. 33 (1998)||Maryland-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+ See more
the proceedings may only result in additional fines or non-incarceration penalties?
|The same procedural protections apply when a defendant may be incarcerated. Otherwise, they do not apply.||
In similar language, the Maryland Public Defender Act requires representation by that office “at all stages” of specified proceedings. When incarceration is sought in a civil contempt proceeding, a hearing+ See more
before a master is a critical stage of such a proceeding. Accordingly, both the right to counsel and the obligation of the Public Defender to provide representation for indigents apply.If incarceration is not sought as a remedy in a contempt proceeding, the constitutional right to counsel is not implicated.6 Nor is the Public Defender obligated to provide representation.
|Ability to pay|
|Maryland||79 Md. Op. Att'y Gen. 354 (1994)||Maryland-Attorney General opinion||Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution?||No. A case-by-case standard could be used for each defendant. However, uniform eligibility requirements must be used under the Administrative Procedure Act||
In theory, the Office of the Public Defender might administer these eligibility provisions on an entirely individualized basis, through an ad hoc assessment of each applicant's financial ability. [However, i]t+ See more
is our opinion that the eligibility criteria established by the Public Defenders Office must be adopted under the rulemaking procedures of the Administrative Procedure Act in order to be legally effective.
|Fines and fees|
|Maryland||See Md. Code Ann., State Fin. & Proc. § 3-302||Maryland-Attorney General opinion||Which fines and/or fees may be collected by a private vendor?||N/A. Maryland has a state central collection agency which collects fees.||Revenue flow|
|Maryland||86 Md. Op. Att'y Gen. 183 (2001)||Maryland-Attorney General opinion||Who has the burden of proof in an ability to pay determination? What is the standard of proof required?||No burden or standard has been established. Instead, the Court simply inquires into the reason for inability to pay the fine.||
"Thus, the Constitution places both procedural and substantive limitations on a court's power to incarcerate a criminal defendant in lieu of payment of a fine. First, the court must inquire+ See more
into the reason why the defendant has failed to pay the fine. If the failure to pay is attributable to indigency the court must also consider alternate methods of punishment. If the court ultimately decides that an additional period of incarceration is necessary to serve the interests of deterrence and punishment, the aggregate period of incarceration cannot exceed the maximum sentence for the underlying offense."
|Ability to pay|
|Maryland||Simms v. State, 501 A.2d 1338, 1342 (1986)||Maryland-Attorney General opinion||Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?||Case law says at the time of collection.||"A hearing to determine ability to pay is appropriate not at the time of the imposition of the sentence but at the time of its enforcement"||Ability to pay|
|Maryland||Md. Const. art. IV, § 18; See, e.g., MD R ADR Rule 17-208||Maryland-Attorney General opinion||What authority do county or municipal courts have to set fines or fees?||They have authority as granted to them by the Court of Appeals||
"Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules+ See more
for court-designated individuals conducting each type of fee-for-service ADR"
|Fines and fees|
Md. Const. art. IV, § 18 (granting the Court of Appeals the authority to enacts rules with the force of law); see, e.g., MD R ADR Rule 17-208 (the Court+ See more
of Appeals authorizes its Chief Judge to approve fee schedules)
|Maryland-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?||Maryland's highest court can impose binding state-wide rules, including fines and fees.||
"The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other+ See more
courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. The power of courts other than the Court of Appeals to make rules of practice and procedure, or administrative rules, shall be subject to the rules and regulations adopted by the Court of Appeals or otherwise by law." "Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules for court-designated individuals conducting each type of fee-for-service ADR"
|Fines and fees|
|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).