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State Citation Question Brief answer Language from the opinion When does the case apply?
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Illinois People v. Love, 177 Ill.2d 550,563 Other applicable case law Enforcement
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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,
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the 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
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under 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
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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,
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the 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
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the 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
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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,
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the 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
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the 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
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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,
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the 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
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counsel. 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
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Iowa State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987)
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,
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the 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).
A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. Ability to pay
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Iowa State v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App. 2016) A defendant who seeks to upset a restitution order has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. A defendant who seeks to upset a restitution order, however, has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. Ability to pay
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Iowa Goodrich v. State, 608 N.W.2d 774, 776 (Iowa 2000) Ability to pay must be determined before imposition.
Constitutionally, a court must determine a criminal defendant's ability to pay before entering an order requiring such defendant to pay criminal restitution pursuant to Iowa Code section 910.2. Section 910.2
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authorizes a court to order the offender to make restitution of court costs and court-appointed attorney's fees “to the extent that the offender is reasonably able to do so.
Ability to pay
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Iowa State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct. App. 2016) Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant
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is reasonably able to pay.
The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant
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is reasonably able to pay. . . . Thus, before ordering payment for court-appointed attorney fees and court costs, the court must consider the defendant's ability to pay.
Ability to pay
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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,
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the 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
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simply 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
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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
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New York People v. Knapp, 132 A.D.3d 1290, 1290, 17 N.Y.S.3d 231, 231 (N.Y. App. Div. 2015); People v. Travis, 64 A.D.3d 808, 809, 882 N.Y.S.2d 530, 532 (2009) Other applicable case law Consideration of ability to pay is not required when restitution order is nonprobationary "‘Consideration of defendant's ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component’” Ability to pay
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New York People v. Aloma, 92 A.D.2d 572, 572–73, 459 N.Y.S.2d 327, 328 (1983) Defendant must raise issue of ability to pay to preserve claim on appeal
"At sentencing, defense counsel merely noted that it was appropriate for the court 'to consider the defendant's ability to pay a fine' and stated in conclusory terms his belief that
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defendant did not have a 'substantial amount of money'. At no point, either before or after the imposition of sentence, was a request made by defendant or his counsel that a hearing be held on his ability to pay a fine"
Ability to pay
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New York People v. Ryan, 83 A.D.3d 1128, 1130, 920 N.Y.S.2d 806, 809 (2011) Failure to inform defendant of applicable surcharges prior to defendant's guilty plea, does not deprive defendant of opportunity to voluntarily weight available option and accept a plea.
Defendant's plea was not rendered involuntary by County Court's failure to mention, prior to the plea, the mandatory surcharge, crime victim's assistance fee and Vehicle and Traffic Law fee associated
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with his conviction. The Court of Appeals has held that such administrative fees “are not components of a defendant's sentence” (People v. Hoti, 12 N.Y.3d 742, 743, 878 N.Y.S.2d 645, 906 N.E.2d 373 [2009] ). Accordingly, the court's failure to pronounce these charges prior to the plea does not deprive a person of the opportunity to voluntarily, knowingly and intelligently weigh the available options and accept a plea
Fines and fees
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New York Cty. of Nassau v. Canavan, 1 N.Y.3d 134, 139–40, 802 N.E.2d 616, 621–22 (2003) Grossly disproportionate fines are unconstitutional. Disproportionality is determined by looking to the seriousness of the crime, available penalties, and resources of the defendant
The Excessive Fines Clause thus “limits the government's power to extract payments, whether in cash or in kind, as ‘punishment for some offense’ ” Forfeitures—payments in kind—are “fines” if they
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constitute punishment for an offense (see United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 [1998] ) . . . Inasmuch as a punitive forfeiture of an instrumentality of a crime “violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense” . . . In determining gross disproportionality, we consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant.
Fines and fees
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Wisconsin State v. Ramel, 743 N.W.2d 502, 510 (Wis. Ct. App. 2007).
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,
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the 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).
None. Case law instructs courts to look to the guidelines listed in the American Bar Association's Standards on Sentencing Alternatives and Procedures.
The court "require[s] that the court, by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives. By stating this linkage on the
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record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion." Id. at 507. “In further reliance on its earlier holding in Pedersen, the Will court noted: In Pedersen, we set out the following procedure to be followed in cases where the defendant claims he is unable to pay a fine: (1) We encouraged trial courts to follow a practice of ascertaining the defendant's ability to pay a fine at the time of sentencing. At this time the court should determine an amount and payment schedule in keeping with the defendant's means. (2) If, thereafter, the defendant is unable to pay the fine imposed, he has the burden to apply to the court for relief. Will, 84 Wis.2d at 403–04, 267 N.W.2d 357." "Kuechler was remanded to the trial court because the defendant's ability to pay the fine imposed *671 had not been determined, although he raised the issue in his post conviction motion, id., ¶ 13, and the court characterized as “unsatisfactory” the evidence in the record of inability to pay, id., ¶ 14. On remand, the trial court was reminded of the supreme court's instructions in Pedersen and Iglesias, which instructions relied upon the American Bar Association Standards on Sentencing Alternatives and Procedures: (c) In determining whether to impose a fine and its amount, the court should consider: (i) the financial resources of the defendant and the burden that payment of a fine will impose, with due regard to his other obligations; (ii) the ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court; (iii) the extent to which payment of a fine will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim of the crime; and (iv) whether there are particular reasons which make a fine appropriate as a deterrent to the offense involved or appropriate as a corrective measure for the defendant." State v. Ramel, 743 N.W.2d 502, 510
Ability to pay
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Wisconsin City of Milwaukee v. Kilgore, 517 N.W.2d 689, 697-98 (Wis. Ct. App. 1994) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? Collections of fines and fees by the court are permitted so long as their collection is not "clearly illegal."
By enacting §§ 800.09 and 800.095, STATS., the legislature explicitly granted municipal courts the authority to suspend drivers' licenses. Whether that constitutes a lawful exercise of police power depends on
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whether it is rationally related to furthering a proper public purpose. See State v. McManus, 152 Wis.2d 113, 130, 447 N.W.2d 654, 660 (Ct.App.1989). That is determined by a two-step analysis. First, we consider whether the statutes promote a proper public purpose. Id. Second, we determine whether the statutory scheme is reasonably related to the accomplishment of that purpose.” City of Milwaukee v. Kilgore, 517 N.W.2d at 696-97. “Courts must not interfere with the municipal exercise of police power unless the exercise is clearly illegal. J & N Corp. v. City of Green Bay, 28 Wis.2d 583, 585, 137 N.W.2d 434, 436 (1965). As the supreme court explained: Municipalities glean their powers from the state constitution and statutes. Under sec. 62.11(5), STATS., municipal legislative bodies are granted the power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out [their] powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.” City of Milwaukee v. Kilgore at 697. Conceivably, this rule is applicable to all state and local courts in the state of Wisconsin.
Revenue flow
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Wisconsin Will v. State, 267 N.W.2d 357, 359 (Wis. S. Ct. 1978). Other applicable case law
“[T]he Court held that the equal protection clause restricts the state's power to collect a fine from a defendant without the means to pay. We have previously held that: “What
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these cases (Williams, Morris, and Tate ) teach is that one who has been convicted of a crime and fined is not to be imprisoned in satisfaction of the fine or in lieu thereof if he is unable to pay the fine.” State ex rel. Pedersen v. Blessinger, 56 Wis.2d 286, 289, 201 N.W.2d 778, 780 (1972). Under the Williams, Morris, and Tate rationale, no equal protection violation occurs when an indigent offender is originally sentenced to confinement; for when he is originally sentenced to confinement, he is being punished for the crime. But once a sentencing judge has determined a fine to be the appropriate penalty, a defendant who is incarcerated merely because he is without the means to pay the fine is being incarcerated not for the crime but for his poverty, and such incarceration is illegal. On the other hand, when an indigent defender upon whom a fine has been imposed lacks the diligence to meet a reasonable payment schedule, his refusal to pay the fine results from contumacy and not indigence, and incarceration is permissible to punish the refusal to pay.” “But once the sentencing court determines that a fine is an appropriate sanction under the circumstances and that the defendant has the ability to pay it, an indigent offender should be accorded a fair method of paying his fine. Though in Pedersen this court declined to require the trial court to use the installment method when dealing with indigent offenders holding that a future date for total payment in lieu of payment in installments is acceptable, some commentators on sentencing have observed that in almost every case imprisonment can be avoided by allowing the indigent to pay his fine over time. We encourage trial courts to use the installment method, since a simple installment checkoff system at the trial court level would not be difficult to establish.” Id. at 360. “[W]e find no authority, either in the statutes or our cases, for the permanent suspension of a sentence. As long as the defendant is afforded a reasonable payment schedule and as long as he is not imprisoned for his inability to pay the fine, we find no constitutional bar to the state's attempting to collect a fine for an indeterminate period of time.” Id. at 361.
Enforcement