Keyword search across all of the laws in the states. Subject-area tabs above allow you to narrow results. Click the advanced search for further refinement.
Every law can be saved to the Reform Builder
State | Citation | Question | Brief answer | Language from the opinion | When does the case apply? | |
---|---|---|---|---|---|---|
Add to Dashboard
|
Illinois | People v. Love, 177 Ill.2d 550,563 | Other applicable case law | Enforcement | ||
Add to Dashboard
|
Illinois | N.M. Stat. Ann. § 31-16-7 |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
No, but statutory law does. N.M. Stat. Ann. § 31-16-7 allows the district attorney to recover payment only from those who were not entitled indigent legal assistance when they received. |
A. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit + See moreunder the Indigent Defense Act:(1) to which he was not entitled;
(2) with respect to which he was not a needy person when he received it; or
(3) with respect to which he has failed to make the certificate required by Section 62 B of the Indigent Defense Act and for which he refuses to pay. Suit must be brought within six years after the date on which the aid was received.
B. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person other than a person covered by Subsection A who has received legal assistance under the Indigent Defense Act and who, on the date on which suit is brought, is financially able to pay or reimburse the state for it according to the standards of ability to pay applicable under the Indigent Defense Act but refuses to do so. Suit must be brought within three years after the date on which the benefit was received.
C. Amounts recovered under this section shall be paid to the state treasurer for credit to the state general fund.
|
Ability to pay |
Add to Dashboard
|
Illinois | State ex rel. Quintana v. Schnedar, 855 P.2d 562, 568 (N.M. 1993) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
Courts should give great deference to the determination of indigency made by the public defender's office when deciding whether a defendant is indigent. |
The inherent power of the judiciary to appoint counsel for indigent defendants is within the unique province of the courts to ensure the constitutionality of criminal prosecutions. The PDA and + See morethe IDA create the statutory apparatus for providing legal representation to indigent criminal defendants. These statutes and other provisions indicate that the Department will determine under its guidelines whether a particular defendant is indigent and therefore entitled to the legal assistance of a public defender. Courts should give great deference to such determinations by the Department, although they retain the ultimate authority to determine indigence and the discretionary ability to order the appointment of a public defender when it is necessary to protect the defendant's constitutional or statutory rights.
|
Ability to pay |
Add to Dashboard
|
Illinois | State ex rel. Dept. of Human Services v. Rael, 642 P.2d 1099, 1104 (N.M. 1982) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
The New Mexico Supreme Court has recognized that in a civil contempt proceeding, defendants are not entitled to court-appointed counsel. |
"The trial court is the proper evaluator of the need for counsel on a case-by-case basis, considering factors such as the indigent's ability to understand the proceeding, the complexity of + See morethe legal and factual issues, and the defenses that might be presented. We hold that the trial court must make a case-by-case determination, based on articulated reasons, whether fundamental fairness requires the appointment of counsel to assist an indigent defendant in a nonsupport civil contempt proceeding, and may, in the exercise of its sound discretion, appoint counsel in the proper case."
|
Enforcement |
Add to Dashboard
|
Illinois | State v. Anaya, 76 N.M. 572, 577 (1966) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
The defendant must make a reasonable showing that he is unable to pay, then the court must inquire into the showing made. |
"The burden of proceeding rests first upon the defendant. It is proper for the trial court to require defendant to make a reasonable showing that he is unable to employ + See morecounsel. Depending on the facts, more than one inquiry may be necessary. In Elliott v. District Court In & For City & County of Denver, 402 P.2d 65 (Colo.1965), the defendant informed the court that he had an expectancy of money. When the expectancy failed to materialize, he brought it to attention of the court at a later date. When defendant makes a reasonable showing of indigency in support of his request for court-appointed counsel, the trial court has a duty under s 41—11—2, N.M.S.A. 1953, to inquire into the facts claimed by defendant. This does not require an independent inquiry by the court. It does require sufficient questioning by the court to enable the court either to decide the question of indigency at that time or to direct that defendant is to report further to the court on the question of obtaining counsel.”
|
Ability to pay |
Add to Dashboard
|
Texas | Rusk v. State, 440 S.W.3d 694, 702 (Tex. App. 2013) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
Court must inquire into defendant's ability to pay before revoking probation and the burden of proof is on the state to show by a preponderance of the evidence that defendant + See morewillfully refused to pay financial obligation.
|
"The Texas ability-to-pay statute imposes an evidentiary burden on the State while Bearden imposes a mandatory judicial directive to inquire into a defendant's ability to pay." | Ability to pay |
Add to Dashboard
|
Texas | Peraza v. State, 467 S.W.3d 508, 517–18 (Tex. Crim. App. 2015), reh'g denied (Sept. 16, 2015),, cert. denied, 136 S. Ct. 1188, 194 L. Ed. 2d 202 (2016) | Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? | Court imposition of costs is not unconstitutional under federal or state constitutional law as long as the money collected will go toward a "criminal justice purpose" |
"[T]he statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes, then the + See morestatute allows for a constitutional application that will not render the courts tax gatherers in violation of the separation of powers clause. A criminal justice purpose is one that relates to the administration of our criminal justice system. Whether a criminal justice purpose is “legitimate” is a question to be answered on a statute-by-statute/case-by-case basis."
|
Fines and fees |
Add to Dashboard
|
Texas | Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) |
Under state constitutional or statutory law, under what circumstances will the imposition or enforcement of fees or fines create conflicts of interest for courts, police departments, probation departments, or other + See morelaw enforcement agencies?
|
There is no case law addressing this question; however, Texas courts have stated that a conflict of interest exists if counsel is required to make a choice between advancing his + See moreclient's interest in a fair trial or advancing other interests. By analogy, then, a conflict of interest may also exist when law enforcement and/or courts are required to to make a choice between advancing justice and fair adjudication or advancing other interests (perhaps their own).
|
"An actual conflict of interest exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) + See moreto the detriment of his client's interest.”
|
Revenue flow |
Add to Dashboard
|
Texas | Gross v. State, 279 S.W.3d 791, 793–94 (Tex. App. 2007) abrogated for other reasons by Harrell v. State, 286 S.W.3d 315 (Tex. 2009) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | No, so long, as the defendant has the ability to off-set the State's expenses |
"nonindigent defendant is required to pay for counsel. To require an indigent to reimburse the county, to the extent he is able, for the expense of furnished counsel tends to + See moreput indigents and nonindigents on the same basis and is consistent with due process. The State of Texas provides an important service in providing legal services to those indigent citizens who cannot afford to pay for their own defense. Because of this service provided to indigents, the State has a significant interest in assuring that persons with financial resources pay for their own representation and do not take a free ride at the expense of its taxpayers. Thus, it is not an inherent violation of due process for the State to take reasonable steps to collect on expenditures made on behalf of those who have the ability to off-set the State's expenses."
|
Fines and fees |
Add to Dashboard
|
Colorado |
Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979) People v. Afentul, 773 P.2d 1081, 1085 (Colo. 1989) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
Before revocation of probation for failure to make ordered restitution payments can be effected, trial court must find that defendant had the ability to pay at the time the payments + See moreshould have been made.
|
"For purposes of requirement that, before probation may be revoked based upon a finding that probationer did not pay moneys due under condition of probation, probationer must have the present + See moreability to pay, the ability to pay is measured by three factors: that job for which probationer is qualified is available; that job would produce an income adequate to meet his obligations; and that probationer unjustifiably refuses to take it." "Evidence of the defendant's failure to pay restitution constitutes prima facie evidence that the defendant has violated the conditions of the deferred sentencing. When the prosecution presents this prima facie evidence, the burden then shifts to the defendant to establish by a preponderance of the evidence that he was financially unable to make the payments at the time they should have been made" (Afentul, citing Strickland)
|
Enforcement |
Add to Dashboard
|
Illinois | People v. Somers, 984 N.E. 2d 471 (2013) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
notice, meaningful opportunity to present evidence on the costs of representation, the defendant's financial circumstances, and foreseeability to pay |
Both this court and the appellate court have been very clear about what a trial court must do . . . To comply with the statute, the court may not + See moresimply impose the fee in a perfunctory manner. Rather, the court must give the defendant notice that it is considering imposing the fee, and the defendant must be given the opportunity to present evidence regarding his or her ability to pay and any other relevant circumstances. The hearing must focus on the costs of representation, the defendant's financial circumstances, and the foreseeable ability of the defendant to pay.
|
Ability to pay |
Add to Dashboard
|
Illinois | People v. Aguirre-Alarcon, 2016 IL App (4th) 140455, ¶ 12, 59 N.E.3d 229, 232 | Other applicable case law | Ability to pay determinations must consider foreseeable and present ability to pay | The hearing must focus on the foreseeable ability of the defendant to pay reimbursement and the costs of the representation provided. | Ability to pay |
Add to Dashboard
|
Rhode Island | State v. LaRoche, 883 A.2d 1151, 1155 (R.I. 2011) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
|
The court must give defendant an ability to pay hearing before enforcing criminal justice debt. |
This Court held that before a body execution may be issued against a defendant who is a judgment debtor, the defendant must be given a hearing to determine ability to + See morepay. Landrigan v. McElroy, 457 A.2d 1056, 1062 (R.I.1983). At such a hearing it is the defendant's obligation to demonstrate an inability to pay the judgment by a preponderance of the evidence. Id. In addition, with regard to a defendant's inability to pay court fees, this Court has held that [i]n every instance the burden of proving indigence in relation to the payment of the required filing fee or other element of cost is upon the party seeking such relief. Silvestro v. Almonte, 484 A.2d 900, 903 (R.I.1984). In our opinion, the hearing justice did not err when he required LaRoche to satisfy the court that he made sufficient bona fide efforts to payrestitution. State v. LaRoche, 883 A.2d 1151, 1155 (R.I. 2011)
|
Ability to pay |