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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, + 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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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.
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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, + 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 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.
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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, + 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 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."
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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, + 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 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.”
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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, + 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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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.
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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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Maryland | 86 Md. Op. Att'y Gen. 183 (2001) (citing Reddick v. State, 608 A.2d 1246 (1992); Smith v. State, 506 A.2d 1165 (1986); Turner v. State, 516 A.2d 579 (1986)). |
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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All that is required is that the court must first assess the defendant's ability to pay the fine by inquiring into the defendant's family and financial situation before incarcerating defendant + See morefor inability to pay. No specific procedural mechanisms have been established.
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"State law provides that a court may sentence a convicted defendant who has failed to pay a fine to an additional period of confinement to “work off” the fine. However, + See moreunder both State law and the federal Constitution, the court must first assess the defendant's ability to pay the fine by inquiring into the defendant's family and financial situation. Any additional period of incarceration imposed for failure to pay the fine must be within statutory limits and may not, in any event, exceed 90 days. Finally, the total period of incarceration imposed on an indigent defendant may not exceed the statutory maximum for the underlying offense."
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Ability to pay |
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Maryland |
Md. Const. art. IV, § 18 (granting the Court of Appeals the authority to enacts rules with the force of law); see, e.g., MD R ADR Rule 17-208 (the Court + See moreof Appeals authorizes its Chief Judge to approve fee schedules)
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Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? | No. Maryland's Constitution allows the Court of Appeals to impose binding state-wide rules, including fines and fees. |
"The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other + See morecourts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. The power of courts other than the Court of Appeals to make rules of practice and procedure, or administrative rules, shall be subject to the rules and regulations adopted by the Court of Appeals or otherwise by law." "Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules for court-designated individuals conducting each type of fee-for-service ADR"
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Revenue flow |
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Maryland |
Md. Code Ann., Cts. & Jud. Proc. § 7-503; Rucker v. Harford Cty., 558 A.2d 399, 404 (Md. 1989) (citing Mayor & City Council of Baltimore v. State, 15 Md. + See more376, 488 (1860) (Grand, C.J., concurring))
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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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Law enforcement officials can collect fees. However, law enforcement officials should not be given any duties which directly conflict with their law enforcement duties. |
“[T]he Constitution ... does not specify or describe the powers and duties of the sheriff. These are left to the common law and the Acts of Assembly.... There is nothing + See moreto prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as sheriff.”
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Enforcement |
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Maryland | Baldwin v. State, 444 A.2d 1058, 1066 (Md. 1982) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | The state may seek reimbursement of any amount which a defendant can reasonably be expected to pay. |
"The initial determination, under the law, is to be made by the Public Defender; and to assist him in making it, § 7(b) authorizes him to “make such investigation of + See morethe financial status of each defendant at such time or times as the circumstances shall warrant....”Obviously cognizant that shifting sands of fortune might subsequently render inaccurate a previous eligibility determination, and also recognizing that time might not always permit a thorough investigation into the financial status of a defendant prior to the rendition of services, the General Assembly provided in art. 27A a comprehensive scheme whereby the Public Defender could obtain reimbursement from defendants later found able to pay for part or all of his services."
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Ability to pay |
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Maryland | Rutherford v. Rutherford, 464 A.2d 228, 237 (Md. 1983) | Other applicable case law | An indigent defendant in a civil contempt proceeding cannot be sentenced to incarceration unless he or she has been afforded the right to counsel |
"Therefore, under the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be sentenced + See moreto incarceration unless he has been afforded the right to appointed counsel. This does not mean that a constitutional right to appointed counsel attaches in every civil contempt proceeding involving an indigent defendant. Rather, we hold only that, under the due process requirements of the federal and state constitutions, an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent him or he has waived the right to counsel"
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Ability to pay |
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Maryland | McDaniel v. State, 45 A.3d 916, 924 (Md. 2012) | Other applicable case law | When a defendant is ordered to make restitution to a crime victim, the defendant must timely object or the issue is waived. |
"When a court orders a defendant to make restitution to a crime victim, and the defendant believes that the court either fails to inquire into his ability to pay or + See moreerrs in determining his ability to pay, the defendant must make a timely objection to the order, else the issue is waived"
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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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Minnesota | Perkins v. State, 559 N.W. 2d 678, 692-93 (1997) |
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 terms of timeline, at least, the sentencing judge need not specifically find that defendant has ability to pay fine before imposing it as part of sentence. |
In State v. Martinson, the court of appeals analyzed its prior decisions requiring sentencing judges to consider a defendant's ability to pay before imposing costs of prosecution, and held that + See moresimilar findings should be made before imposing a fine. 460 N.W.2d 342, 344 (Minn.App.1990), pet. for rev. denied (Minn., Oct. 25, 1990). The Martinson court noted that requiring such findings was consistent with the recommendations of the A.B.A. Standards for Criminal Justice. Id. at 343; see 3 A.B.A. Standards for Criminal Justice § 18-2.7 (1979). But in a subsequent case, the court of appeals held that a sentencing judge need not make findings as to a defendant's ability to pay a fine unless the judge decides to reduce the amount of the fine below the statutory minimum for the offense. State v. Patterson, 511 N.W.2d 476, 479 (Minn.App.1994), pet. for rev. denied (Minn., Mar. 31, 1994). Then, in State v. Lambert, 392 N.W.2d 242 (1986), the court of appeals affirmed the Patterson court's decision that a sentencing judge need not determine a defendant's ability to pay the statutory minimum fine. 547 N.W.2d 446, 447-48 (Minn.App.1996). Most recently, the court of appeals held that when a sentencing judge imposes a fine between the statutory maximum and the statutory minimum, the judge must find that the defendant is able to pay the fine. State v. Salinas, No. C6-96-180, slip. op. at 4 (Minn.App., filed Sept. 17, 1996). Perkins v. State, 559 N.W. 2d 678, 692-93 (1997).
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Ability to pay |
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Minnesota | State v. Tennin, 674 N.W. 2d 403, 408 (2004) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | Any statute creating a co-payment obligation upon appointment of public defender violates indigent defendant's right to counsel under state and federal Constitutions. |
Nonetheless, the requirement to repay costs of counsel is not without limit. In analyzing a recoupment statute from the State of Oregon, the United States Supreme Court held that Oregon's statute requiring an individual + See moreto reimburse the state for the services of a public defender was in line with the Sixth Amendment where “[t]hose who remain indigent or for whom repayment would work ‘manifest hardship’ are forever exempt from any obligation to repay.” Id. The question thus arises, does Minn.Stat. § 611.17, subd. 1 (c) (Supp.2003), which states that “[u]pon appointment of the public defender, an individual who receives public defender services shall be obligated to pay to the court a co-payment for representation provided by a public defender,” exempt persons who remain indigent or for whom repayment of the co-payment would work a manifest hardship? The answer to this question is critical to our analysis of the certified question. State v. Tennin, 674 N.W. 2d 403, 408 (2004) (quoting Fuller v. Oregon, 417 U.S. 40, 53, 94 (1974)).
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Ability to pay |
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Minnesota | State v. Palubicki, 727 N.W. 2d 662 (2007) | Other applicable caselaw |
Trial court did not abuse its discretion in ordering defendant to pay restitution to murder victim's adult children for expenses arising from their voluntary attendance at murder trial, as their + See moreclaimed expenses resulted from the crime; abrogating In re Welfare of D.D.G., 532 N.W.2d 279, State v. DeGrote, 2004 WL 556946. M.S.A. §§ 611A.04(1)(a), 611A.01(b).
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Fines and fees |