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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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Mississippi Baldwin v. State, 891 So.2d 274, 276 (Miss. Ct. App. 2004); Moody v. State, 716 So.2d 562, 565-66 (Miss. 1998).
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 MS 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.
"During the revocation hearing in May 2002, Baldwin never testified that he was indigent. In fact, Baldwin stated that a former employer was going to rehire him. Baldwin offered to
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have his wages garnished. Baldwin also stated that he gets anywhere from $2,000 and $3,000 back after taxes through earned income credit and would use that money for restitution.We cannot find that there was any abuse of discretion on the part of the trial judge in determining whether or not Baldwin could make his restitution payments. This issue is without merit." Baldwin v. State, 891 So.2d 274, 276 (Miss. Ct. App. 2004). “[O]ne who is unable to pay will always be in a position of facing a felony conviction and jail time, while those with adequate resources will not. The automatic nature of the fine is what makes it discriminating to the poor, in that only the poor will face jail time. We hold that an indigent's equal protection rights are violated when all potential defendants are offered one way to avoid prosecution and that one way is to pay a fine, and there is no determination as to an individual's ability to pay such a fine. Subjecting one to a jail term merely because he cannot afford to pay a fine, due to no fault of his own, is unconstitutional. Moody v. State, 716 So.2d 562, 565-66 (Miss. 1998) (citing Bearden v. Georgia, 461 U.S. 660 (1983)).
Ability to pay
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Mississippi Mississippi Judicial Performance Com'n v. A Justice Court Judge, 580 So.2d 1259, 1261-62 (Miss. 1991) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? Judges are prohibited from collecting fees except in special circumstances. Such circumstances require the judge to seek written permission from the court clerk
“We cannot say that it is absolutely wrong for a justice court judge to personally accept fine monies, because it is not expressly forbidden by statute. On the other hand,
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the statutes do not authorize it any more than they authorize a circuit judge to personally receive fine monies in his court, or a chancellor to personally receive public monies in his. There is a clear legislative intent to remove justice court judges from collection of fines. Only the justice court clerk has the statutory authority to collect fines, give receipts for fines, and account for all fine monies paid to the county.” Mississippi Judicial Performance Com'n v. A Justice Court Judge, 580 So.2d at 1262 “This Court therefore makes the following admonition to justice court judges insofar as individually accepting fine monies: Don't.” Id. “Just as with a circuit judge or chancellor, it should only be in some isolated and clearly necessitous circumstance that a justice court judge ever undertake the responsibility himself of receiving any fine money. If that extreme occasion arises, he must give a written receipt, keep the money segregated and apart from his own, and at the very first opportunity deliver it to the justice court clerk with an explanation of why he received it himself.” Id.
Revenue flow
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Mississippi Isham v. State, 161 So.3d 1076, 1084 (Miss. 2015). Other applicable caselaw Indigent defendants are entitled to state-funded criminal expert witnesses.
 "In order to be entitled to a State-funded expert, a criminal defendant must prove not only that the expert is necessary to the preparation of his defense, but he also
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must prove his indigency. Ake, 470 U.S. at 70, 105 S.Ct. 1087. Here, the trial court's order assigning Isham a public defender clearly indicates that he was financially unable to pay for an attorney, and the case proceeded on the basis that Isham was indigent." Id.
Fines and fees
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Mississippi
Quitman County v. State, 910 So.2d 1032, 1034-35 (Miss. 2005); Perisha Wallace, "No Equal Justice for the Poor: Mississippi's Failed Attempt to Honor the Right to Counsel Mandates," 9 S.
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J. POL’Y & JUSTICE 81, 86-89 (2015).
Other applicable caselaw
According to Mississippi state law, the counties, not the state, have the responsibility of covering expenses for public defender services. This is an unusual system compared to public defender funding
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schemes in other states. The county system has been criticized for failing to ensure adequate representation for indigent defendants in criminal proceedings. The lack of state funding for defender services may be in violation of the 6th Amendment right to counsel provisions articulated by Supreme Court cases Gideon v. Wainwright and Strickland v. Washington.
Section 25-32-7 of the Mississippi Code Annotated is the statutory authority that requires counties to fund the representation of indigent criminal defendants and specifically provides for the compensation and expenses
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for the public defender's office. Section 25-32-7 provides that: The public defender shall be provided with office space, secretarial assistance, and all reasonable expenses of operating the office, at least equal to or more than the county prosecuting attorney, or the district attorney if the public defender represents the entire circuit court district. The compensation and expenses of the public defender's office shall be paid by the county or counties if two (2) or more counties are acting jointly. The funds shall be paid upon allowance by the board of supervisors by order spread upon the minutes of the board. Also, § 99-15-17, in pertinent part provides “[t]he fees and expenses [of counsel for indigents] as allowed by the appropriate judge shall be paid by the county treasurer out of the general fund of the county in which the prosecution was commenced.” Quitman I, 807 So.2d at 407. Quitman v. State, 910 So.2d at 1035. Mississippi's per-capita spending rate on public defense is $4.15. It is the lowest in the country, $7.31 lower than the national average. As a result, the county funded part-time lawyers continuously lack funding to conduct the most basic investigations, to conduct legal research, or to hire experts, yet another clear violation of Gideon and Strickland. In many counties, hiring an investigator or a psychiatrist in a non-death penalty case is only possible if the lawyer pays for it out of his or her own pocket. Indigent defense lawyers must handle their own appeals, often without more compensation. While attorneys representing defendants are entitled to receive payment for overhead, the amount of overhead allowed is in the presiding county judges' discretion, and is often times capped. Counties have set very low amounts as the maximum available for compensation of indigent counsel, and the judge must approve any excess funding. Unfortunately, judges are reluctant to develop a reputation for spending tax dollars on criminal defendants, so they often deny any such requests. As a result, the most basic investigations are not completed by the lawyer. The publication identified children as young as 14 who were sent to state prison for decades “after being represented by lawyers who did no investigation on their cases” and “who spent less time talking to [[the children] than a sales clerk might spend with a customer buying a pair of shoes.” Perisha Wallace, "No Equal Justice for the Poor: Mississippi's Failed Attempt to Honor the Right to Counsel Mandates,” 9 S. J. POL’Y & JUSTICE at 88-89. (Citations omitted).
Revenue flow
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West Virginia State v. Murrell, 201 W. Va. 648, 649–50, 499 S.E.2d 870, 871–72 (1997).
Syl. Pt. 1, State v. Haught, 179 W.Va. 557, 371 S.E.2d 54 (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,
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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).
(1) While there is no prohibition against the imposition of the maximum penalty prescribed by law, indigent defendants may not be incarcerated solely because of their inability to pay court-ordered
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fines or costs. (2) The court may impose of a statutory fine without determination of ability to pay, but before a trial court conditions its recommendation for a defendant's parole upon the defendant's payment of statutory fines, costs and attorney's fees, the trial court must consider the financial resources of the defendant, the defendant's ability to pay and the nature of the burden that the payment of such costs will impose upon the defendant.
"An individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines
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pursuant to statute. Consistent with the principles of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and *650 **872 Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), however, while there is no prohibition against the imposition of the maximum penalty prescribed by law, indigent defendants may not be incarcerated solely because of their inability to pay court-ordered fines or costs." State v. Murrell, 201 W. Va. 648, 649–50, 499 S.E.2d 870, 871–72 (1997).
Ability to pay
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West Virginia W. Va. Const. art. VIII, § 3 Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? No. West Virginia's Constitution allows the Court of Appeals to impose binding state-wide rules.
“The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice
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and procedure, which shall have the force and effect of law.”
Enforcement
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West Virginia See generally §59-1-1 to §59-1-39. W. Va. Code §59-1-14.
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?
The Court, Clerk of Court, Sheriff and Probation Dept can collect fines. Most fines and fees go into the general revenue fund (either state or county), but the West
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Virginia Deputy Sheriff Retirement Fundt fund receives a small amount from certain collections (see §59-1-14).
Revenue flow
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West Virginia W. Va. Code § 29-21-16 Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
No, not under the state constitution. However, state statutory law provides that "court shall not order a person to pay costs unless the person is able to pay without
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undue hardship."
(g) In the circumstances and manner set forth below, circuit judges may order repayment to the state, through the office of the clerk of the circuit court having jurisdiction over
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the proceedings, of the costs of representation provided under this article:(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person, and in juvenile cases, may require the juvenile's parents or custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees and costs as authorized by statute. (2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person's ability to pay and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case's conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person's financial circumstances change. (3) When a person is ordered to repay costs, the court may order payment to be made forthwith or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future. (4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction of the court that continued payment of the amount ordered will impose undue hardship on the person or the person's dependents, the court may modify the method or amount of payment. (5) When a person ordered to pay costs is also placed on probation or imposition or execution of sentence is suspended, the court may make the repayment of costs a condition of probation or suspension of sentence.
Ability to pay
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West Virginia State v. Stamm, 222 W. Va. 276, 281, 664 S.E.2d 161, 166 (2008) Other applicable case law In criminal failure to pay support cases, burden of reasonable ability to pay remains with the state.
"Accordingly, we now hold that, insofar as W. Va. Code § 61-5-29(3) (1999) (Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's
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case [here, defendant's reasonable ability to provide was an element in 61-5-29(2), but reasonable ability to provide was also an affirmative defense in 61-5-29(3)], in violation of the due process clauses found in Article III, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code § 61-5-29, is unconstitutional and unenforceable."