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State | Citation | Question | Brief answer | Language from the opinion | When does the case apply? | |
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Arkansas |
Bohannon v. State, 2014 Ark. App. 434; Arkansas Code §5-4-205; Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984); Cavin v. State, 11 Ark. App. 294, 669 S.W.2d + See more508 (1984); Trial Handbook for Arkansas Lawyers § 99:20 (2016-2017 ed.)
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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).
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The defendant has to make a good faith attempt to comply with a court order to pay. Otherwise, her probation may be revoked. The State has the burden of proving + See morethe failure to pay; the burden of production then shifts to the defendant to show why. The State must then prove that the nonpayment was inexcusable.
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"(3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider: (A) The defendant's employment status; (B) The defendant's earning ability; (C) The defendant's financial + See moreresources; (D) The willfulness of the defendant's failure to pay; and (E) Any other special circumstances that may have a bearing on the defendant's ability to pay."
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Ability to pay |
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Arkansas |
Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984), citing Bearden v. Georgia, 461 U.S. 660 (1983); see also Ark. Code + See moreAnn. § 5-4-203(a)(3) and (4) (Supp. 1995).
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Imprisonment of an indigent defendant for failure to pay a fine violates the defendants equal protection rights. |
This statute basically codifies the principles established by the cases of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Williams v. Illinois, 399 U.S. + See more235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), both of which stand *341 for the proposition that a sentence to imprisonment for nonpayment of a fine works an invidious discrimination against indigent defendants in violation of the equal protection clause of the Fourteenth Amendment.
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Enforcement | |
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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, + 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).
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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 + See moreauthorizes 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.
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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 + See moreis reasonably able to pay.
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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 + See moreis 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.
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Ability to pay |
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North Dakota | State v. Kottenbroch, 319 N.W.2d 465 (N.D. 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).
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While the North Dakota Supreme Court has not expressly delineated what the ND constitution requires for an ability to pay hearing, it applied Fuller in holding that the current recoupment + See morestatute is valid.
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Kottenbroch's fourth argument is that the recoupment statute violates due process because it does not provide the defendant with any type of hearing. Before probation may be revoked, however, the + See moredefendant must be given a hearing pursuant to Rule 32(f), N.D.R.Crim.P. At the hearing, the prosecution must establish by a preponderance of the evidence that a violation of a condition of probation has occurred. In this case the prosecution would have to prove that Kottenbroch was capable of, but unwilling to, repay the costs of his court-appointed counsel. Such a construction will prevent invidious discrimination between a probationer capable of repaying the costs of his attorney and one incapable of such repayment. Fuller v. Oregon, 417 U.S. at 48, fn. 9, 94 S.Ct. at 2122, fn. 9.
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Ability to pay |
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North Dakota | State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | As noted above, Kottenbroch indicates that a hearing is required. |
Kottenbroch's fourth argument is that the recoupment statute violates due process because it does not provide the defendant with any type of hearing. Before probation may be revoked, however, the + See moredefendant must be given a hearing pursuant to Rule 32(f), N.D.R.Crim.P. At the hearing, the prosecution must establish by a preponderance of the evidence that a violation of a condition of probation has occurred. In this case the prosecution would have to prove that Kottenbroch was capable of, but unwilling to, repay the costs of his court-appointed counsel. Such a construction will prevent invidious discrimination between a probationer capable of repaying the costs of his attorney and one incapable of such repayment. Fuller v. Oregon, 417 U.S. at 48, fn. 9, 94 S.Ct. at 2122, fn. 9.
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Fines and fees |
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North Dakota | State v. Thorstad, 261 N.W.2d 899 (N.D. 1978) | Other applicable case law | Defendant who agrees to pay restitution in plea bargain has no right to ability to pay determination under N.D. Cent. Code § 12.1-32-08. |
After serious deliberation, we conclude that the provisions of s 12.1-32-08, NDCC, apply in situations where the defendant either is found guilty or pleaded guilty to a criminal charge and + See morethe amounts or the issues of restitution or reparation are uncertain or are in dispute. However, we do not believe it applies where restitution or reparation was resolved by agreement with the defendant through plea-bargaining procedures even though the specific amount is not known and is to be determined later. When a defendant agrees to pay for the damage he caused and has a general idea of the amount, but not the specific amount in dollars and cents, which is to be determined later, he cannot later claim in the absence of fraud, that he was not made aware of the amount or that he did not agree to the amount. After a voluntary agreement has been reached on the issues of restitution and reparation it would be a useless gesture to proceed under s 12.1-32-08, NDCC. We do not believe that justice requires the performance of an idle act (s 31-11-05(23), NDCC), which it would be to require a restitution or reparation hearing after the defendant has agreed to make restitution or reparation, as the case may be.
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Ability to pay |
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North Dakota | State v. Nordahl, 680 N.W.2d 247 (N.D. 2004) | Other applicable case law | Where defendant agrees to pay restitution in plea bargain, probation can be revoked for failure to pay restitution, even if defendant was genuinely unable to pay |
Nordahl's situation is sufficiently distinguishable from the Bearden case. In Bearden, the defendant did not agree to the restitution as part of a plea agreement; rather, restitution was imposed by + See morethe court as a part of Bearden's sentence. Id. at 662, 103 S.Ct. 2064. . . . The crux of the decision in Bearden rested on good faith. Id. Unlike Bearden, but similar to the defendant in Mitchell, Nordahl knew his financial situation before he entered into the plea agreement with the State's Attorney. Nordahl was in a position to know the nature and extent of his finances and to evaluate his ability to pay the restitution obligation. Prior to entering the plea agreement, Nordahl knew of the encumbrances on his farm and other property. In his affidavit, Nordahl stated it was his intention to sell the bus to satisfy a portion of the restitution and to sell part of his farm property to satisfy the rest of the obligation. Presumably, Nordahl was aware that the outstanding obligations to the bank would go unfulfilled if he paid the restitution obligation in full or, in the alternative, the bank would lose its collateral.
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Ability to pay |
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Tennessee |
State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002); State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994); Poole v. City of Chattanooga, No. E199901965COAR3CV, 2000 WL 310564, + See moreat *4 (Tenn. Ct. App. Mar. 27, 2000)
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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).
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In imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other mitigating and enhancing factors. The burden is on the + See moredefendant to prove a present inability to pay.
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The trial court's imposition of a fine, within the limits set by the jury, is to be based upon the factors provided by the 1989 Sentencing Act, which include the + See moredefendant's ability to pay that fine, and other factors of judgment involved in setting the total sentence. Trial and appellate courts must also consider other factors, including prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, overall sentence. The seriousness of a conviction offense may also support a punitive fine.
[T]he burden is on the contemner to prove inability to pay
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Ability to pay |
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Tennessee | State v. Rose, No. C.C.A. 3, 1989 WL 22804, at *2 (Tenn. Crim. App. Mar. 15, 1989) (Daughtrey, J., concurring in part) | Does the states separation of powers doctrine limit the ability of courts to impose or collect revenue? |
To some degree. Only the legislature can establish that conduct is criminal and is subject to a fine. Courts cannot impose a fine for behavior that the legislature has not + See morecriminalized
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The power to declare conduct to be criminal and to set forth the gradation of penalties for various offenses is a matter wholly within the power and discretion of the + See morelegislature, which discretion, exercised within constitutional limits, is not subject to review by the courts.
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Fines and fees |
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Tennessee | State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986) |
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?
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This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur. Furthermore, + See morein at least one instance, the Tennesee Court of Criminal Appeals has recognized that conflicts might arise regarding fines and law enforcement.
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Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect + See moreeach defendant's right to counsel. "There is in the record an interesting letter from this assistant district attorney general to the defendants' attorney in which he asserts there is a conflict of interest because the state wished to talk with four of the accused, out of the presence of counsel, to explain the possibility of entering a nolle as to one or more of these persons and agreeing to a fine upon a guilty plea as to the others. If the state has no case against these people they could and should move to dismiss the charges without need to consult with them, either with or without counsel present."
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Enforcement |
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Tennessee | State v. Miller, No. W200200640CCAR3CD, 2003 WL 1618070, at *3 (Tenn. Crim. App. Mar. 28, 2003) | Are there limits to the states ability to recoup fees for counsel under the state constitution? |
In making its ability-to-pay determination, the court can require a defendant to pay as much as it determines the defendant is able to pay. It can modify this order if + See morethere is a change in the defendant's financial circumstances.
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"If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is + See morefinancially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of such court such sum as the court determines the accused is able to pay. Such sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused."
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Ability to pay |
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Tennessee | Poole v. City of Chattanooga, No. E199901965COAR3CV, 2000 WL 310564, at *2 (Tenn. Ct. App. Mar. 27, 2000) | Other applicable caselaw | Defendants can be imprisoned for failure to pay fines if the court determines the person being imprisoned has the ability to pay the fine. | "[I]mprisonment for failure to pay a fine, which is allowed under T.C.A. § 29-9-104, so long as the person being imprisoned has the ability to pay the fine." | Ability to pay |
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Tennessee | State v. Dubrock, 649 S.W.2d 602 (Tenn.Crim.App.1983) | Defendant is entitled to ability-to-pay hearing whenever they claim indigency. |
"We think it is clear from the plain meaning of the statute that an indigency hearing must be held whenever a criminal defendant claims that he is financially unable to + See moreretain counsel. Furthermore, the legislature has placed no limits on the word whenever. Thus, an indigency hearing is required at any point that the defendant claims indigency."
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Ability to pay |