Criminal Justice Policy Program at Harvard Law School
50-State Criminal Justice Debt Reform Builder Bringing transparency to areas of significant legal complexity.
50-State Criminal Justice Debt Reform Builder Bringing transparency to areas of significant legal complexity.
Case Law
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When does this apply
| State | Citation | Question | Brief answer | Language from the opinion | When does the case apply? | |
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Delaware | Potter v. State, 547 A.2d 595, 598 (Del. 1988) |
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 felony cases that may result in a prison sentence, the Delaware Supreme Court holds that the trial court must make a determination of indigence if indigence is raised as + See morean issue. The defendant has the burden of proof and is entitled to a hearing on the issue of indigence. The Court is silent on the substantive factors that must be considered when making a determination of indigence.
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If the issue of indigence is raised in a case involving a felony charge which may result in a prison sentence, this Court has held that the trial court has + See morea duty to make a determination on the record as to the defendant's alleged indigence before the case proceeds to trial. Stacey v. State, Del.Supr., 358 A.2d 379, 380 (1976) (per curiam). The defendant has the burden of establishing a right to counsel at public expense, but he is entitled to a hearing on the issue of indigence. Id. This Court also held that it is error for a trial court to presume that a defendant is not entitled to counsel from a silent record. Id. Potter v. State, 547 A.2d 595, 598 (Del. 1988)
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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, + 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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Oregon | State v. Mickow, 277 Or.App. 497, 502 (2016) |
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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Courts must determine that the defendant is or may be able to pay the fees, and take the financial resources of the defendant into account, as well as the nature + See moreof the burden that the fee obligation would place on that person
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Among the safeguards that were pivotal to the [Supreme] Court's conclusion [upholding Oregon's ability-to-pay determination post-Gideon] were the statutory requirements that the sentencing court must (1) determine that the defendant + See moreis or may be able to pay the fees; and (2) take the financial resources of the defendant into account, as well as the nature of the burden that the fee obligation would place on that person. Id. at 45, 53 n. 12, 94 S.Ct. 2116.
State v. Mickow, 277 Or.App. 497, 502 (2016)
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Ability to pay |
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Oregon | Bobo v. Kulongoski, 338 Or. 111, 122 (2005) | Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? |
Unclear, and answer is unavailable as to courts, but a line of cases suggests that merely having a fund where assessed fees support state functions does not constitute a conflict + See moreof interest
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Considering the wording of Article IV, section 18, its history, and the case law surrounding it, we conclude that the question whether a bill is a “bill for raising revenue” + See moreentails two issues. The first is whether the bill collects or brings money into the treasury. If it does not, that is the end of the inquiry. If a bill does bring money into the treasury, the remaining question is whether the bill possesses the essential features of a bill levying a tax. As Northern Counties Trust makes clear, bills that assess a fee for a specific purpose are not “bills raising revenue” even though they collect or bring money into the treasury.
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Revenue flow |
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Oregon | State v. Fuller, 12 Or.App. 152, 158–59 (1973), aff'd, 417 U.S. 40 (1974) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | Yes, but such limits are predicated on the indigency of the defendant |
Thus, an indigent defendant is entitled to free counsel immediately (which is when he needs it), but may be later required to repay this cost if he ‘is or will + See morebe’ able to do so, that is, if he has ceased or likely will cease to be indigent. A defendant is not denied counsel while he is indigent, and he is required to repay appointed counsel's fee only if and when he is no longer indigent. If there is no likelihood that a defendant's indigency will end, a judgment for costs cannot be imposed. ORS 161.665(3).
State v. Fuller, 12 Or.App. 152, 158–59 (1973), aff'd, 417 U.S. 40 (1974)
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Fines and fees |
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Oregon | State v. Goodenow, 251 Or.App. 139, 144–45 (2012) | Other applicable caselaw |
Courts are not limited by any numerical or proportionality requirement to seize the proceeds of a crime, in this case, all the earnings from a winning lottery ticket purchased using + See morean illegally obtained credit card
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Oregon's criminal forfeiture statutes do not limit the amount of property that may be forfeited as the proceeds of prohibited conduct. They do not require courts to determine whether a + See moreforfeiture of a defendant's property is proportional to the defendant's crime. ORS 131.585(1) (“The court shall enter judgment to the extent that the property is proceeds of the crime of conviction or of past prohibited conduct that is similar to the crime of conviction.”). (In that respect, the statutes treat the forfeiture of the proceeds of defendants' crimes differently from the forfeiture of instrumentalities of defendants' crimes. The statutes require courts to determine whether the forfeiture of an instrumentality of a defendant's crime, such as a vehicle or building used in the commission of a crime, is proportional to the crime and identify factors to consider in making that determination. ORS 131.585(2)(a)-(g).4)
State v. Goodenow, 251 Or.App. 139, 144–45 (2012)
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Enforcement |
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Washington | State v. Curry, 118 Wash.2d 911, 91516 (1992) |
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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If a judge imposes discretionary legal financial obligations, seven requirements must first be met |
The following requirements must be met:1. Repayment must not be mandatory;2. Repayment may be imposed only on convicted defendants;3. Repayment may only be ordered if the defendant is or will + See morebe able to pay;4. The financial resources of the defendant must be taken into account;5. A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;6. The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion; 7. The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
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Ability to pay |
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Washington | State v. Blank, 131 Wash.2d 230, 239-42 (1997) | Are there limits to the states ability to recoup fees for counsel under the state constitution? |
Yes, but they are incorporated into protections that do not directly speak to limitations on the state's ability to recoup fees, such as the defendant's inability to pay and the + See morecourt's obligation to inquire into a defendant's ability to pay
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the procedural guidelines required by the Constitution, and mandated by this court, need not be specifically enumerated in the statute so long as the courts adhere to those requirements
Moreover, common + See moresense dictates that a determination of ability to pay and an inquiry into defendant's finances is not required before a recoupment order may be entered against an indigent defendant as it is nearly impossible to predict ability to pay over a period of 10 years or longer.6 However, we hold that before enforced collection or any sanction is imposed for nonpayment, there must be an inquiry into ability to pay.
State v. Blank, 131 Wash.2d 230, 239-42 (1997)
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Revenue flow |
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Washington | State v. Blazina, 182 Wash. 2d 827, 839, 344 P.3d 680, 685 (2015) | Other applicable case law | Imposition of discretionary fines and fees requires individualized inquiry into defendants ability to pay. |
We hold that RCW 10.01.160(3) requires the record to reflect that the sentencing judge made an individualized inquiry into the defendant's current and future ability to pay before the court + See moreimposes LFOs. This inquiry also requires the court to consider important factors, such as incarceration and a defendant's other debts, including restitution, when determining a defendant's ability to pay. Because the records in this case do not show that the sentencing judges made this inquiry into either defendant's ability to pay, we remand the cases to the trial courts for new sentence hearings.
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Ability to pay |