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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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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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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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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,
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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).
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
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for inability to pay. No specific procedural mechanisms have been established.
"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,
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under 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."
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
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of Appeals authorizes its Chief Judge to approve fee schedules)
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
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courts 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"
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.
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376, 488 (1860) (Grand, C.J., concurring))
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
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law enforcement agencies?
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
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to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as sheriff.”
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
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the 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."
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
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to 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"
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
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errs in determining his ability to pay, the defendant must make a timely objection to the order, else the issue is waived"
Ability to pay
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Pennsylvania Com. Ex Rel. Benedict Et Al. v. Cliff, 451 Pa. 427, 433-34 (Pa. 1973)
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 state supreme court has held that it is a violation of the U.S. Constitution and the PA state constitution's equal protection provisions to subject a defendant to jail time
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simply because he is unable to pay a fine without first making a determination of the defendant's ability to pay. There appears to be no specific minimum requirements for ability-to-pay determinations. Apparently, however, the burden is on the defendant to inform and show the court that he is indigent.
It is nonetheless apparent that a state is prohibited from committing its citizens for fines without a reasonable opportunity being afforded to allow them to meet the court's directive consistent
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with their respective financial situation. In the cases before us there was no determination of immediate ability to meet the mandates that had been imposed, nor was there a showing that a reasonable opportunity had been given to allow the appellants to comply without immediate incarceration. We believe that the Supreme Court has made it plain that a defendant may not be incarcerated merely because he cannot make full payment of a fine. Therefore, we hold that the appellants must be given the opportunity to establish that they are unable to pay the fine. Upon a showing of indigence, the appellants should be allowed to make payments in reasonable installments.
Ability to pay
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Pennsylvania Com. v. Schwartz, 418 A.2d 637, 640 (1980) When is the determination of Defendant's ability-to-pay made? It is more rational to determine ability to pay before imposition of a fine.
If the judge does not at the outset determine the defendant's ability to pay a fine, he will often be forced to imprison him at some later point, when he
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fails to pay the fine. However, before a defendant may be imprisoned for not paying a fine, he must be given an opportunity to establish that he is unable to pay the fine. Commonwealth ex rel. Parrish v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973); Commonwealth v. Shaeffer 228 Pa.Super. 734, 311 A.2d 361 (1973); Pa.R.Crim.P. 1407(a). If a defendant establishes that he is indigent, he will be allowed to make payments in reasonable installments. 451 Pa. at 434, 304 A.2d at 161. Thus, rather than waiting until the defendant is brought before the court for not paying a fine, it is far more rational to determine the defendant's ability to pay at the time the fine is imposed...Here, all the sentencing judge knew about appellant's financial background was that he had sold $980 worth of drugs to the undercover agents the previous year and was currently working with his father in the construction industry, “bringing home approximately $150 per week.” N.T. at 12, 13 (August 28, 1978, Guilty Plea hearing). This was hardly enough information to make an intelligent finding as to appellant's ability to pay the fine.
Ability to pay
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Pennsylvania
Com. v. Verilla, 526 A.2d 398, 403 (1987). See also: Com. v. Opara, 362 A.2d 305, 312 (1976); Com. v. Pride, 380 A.2d 1267, 1270 (1977); Com. v. Johnson, 187
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A.2d 761 (1963); Com. v. Terry, 368 A.2d 279, 280 (1977)
Are there limits to the state’s ability to recoup fees for counsel under the state constitution? Legislature must act for fees for counsel to be recouped from defendant
Clearly, Damario (In re Estate of Damario, 488 Pa. 434, 412 A.2d 842(1980)) cannot be construed to permit assessment of counsel fees by a trial court simply because Appellant was
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assigned court-appointed counsel, even though he was not ruled indigent. Notwithstanding the fact that there exists no case law addressing the precise issue presently before this Court, we draw support from those cases which require a finding of statutory authority before the trial court's order of reimbursement to a public defender's office would be upheld. See Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977); Commonwealth v. Pride, 252 Pa.Super. 34, 380 A.2d 1267 (1977); Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1975). Absent an indication by our legislature sanctioning the assessment of counsel fees for court-appointed counsel, we decline to validate orders granting such relief to counties. Parenthetically we note that § 3 of the Act of January 19, 1968, P.L. 984, 19 P.S. § 793, at one time provided for the reimbursement by a criminal defendant or a relative of the defendant to the county “for compensation and expense incurred and paid to court-appointed counsel”. However, this statute has since been repealed, 1984, October 12, P.L. 959, No. 187, § 6.
Fines and fees