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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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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
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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
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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
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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
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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
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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
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Mississippi 1981 WL 39784 (Miss.A.G.); Miss. Code Ann. § 99-19-20 (2) Mississippi-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? apparently not, because judges rule on indigency on a case-by-case basis
In the event an indigent is unable to pay his fine, a justice court judge may rely upon Section 99-19-20 of the Mississippi Code, 1972 , as amended, as an
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alternative procedure in working with indigents.
Ability to pay
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South Carolina 1987 S.C. Op. Att'y Gen. 255 (1987) Bearden Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Not answered - however, cannot implement a surcharge if defendant fails to pay fee
In the circumstances where an indigent fails to comply with the schedule of payments established by the court and the court determines that the indigent has wilfully refused to pay
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or failed to make bona fide efforts to pay, the court is authorized to imprison the defendant for contempt. As provided in Section 17–25–350, where part of the fine has been paid, the imprisonment cannot exceed the remaining pro rata portion of the sentence. I am unaware of any basis for a court to impose a fine in addition to the sentence originally imposed.
Ability to pay