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State Citation Question Brief answer Language from the opinion When does the case apply?
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Indiana IN Const. Art. 1, § 16
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).
There is a constitutional limitation on excessive fines in the criminal context.
Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature
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of the offense.
Ability to pay
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Indiana Ind. Code § 33-37-2-3; Ind. Code § 35-38-2-1.7
Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016)
Trial court must conduct an indigency hearing when it imposes fines or costs as part of a defendant's sentence; however, no specific requirement indicates when the hearing must be held
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as long as the hearing is held before the sentence is completed.
Further, the trial court must conduct an indigency hearing when it imposes fines or costs as part of a defendant's sentence. Johnson v. State, 27 N.E.3d 793, 794-95 (Ind.Ct.App.2015),
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see also Ind.Code § 33–37–2–3(a). However, no specific requirement indicates when the hearing must be held as long as the hearing is held before the sentence is completed. Johnson, 27 N.E.3d at 794–95.
Ability to pay
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Indiana Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016)
An indigency determination merely prevents the defendant from being imprisoned for his inability to pay costs or fines. A trial court has the authority to assess fines, costs, and fees
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against an indigent defendant; a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other.
Meunier–Short contends a trial court may not impose costs or fines upon an indigent defendant. But we have previously held, “A defendant's indigency does not shield him from all costs
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or fees related to his conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind.Ct.App.2006), trans. denied. An indigency determination merely prevents the defendant from being imprisoned for his inability to pay. Henderson, 44 N.E.3d at 815. Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33–37–2–3(a) and 35–38–1–18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other ...” Williams v. Illinois, 399 U.S. 235, 244, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
Ability to pay
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Indiana Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? The power of the Legislature to impose and regulate fines, exercised within constitutional limits, is not subject to review by the courts
"To summarize, we hold that Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First,
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the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion."
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Indiana IN Const. Art. 5, § 17
State v. Dunning, 9 Ind. 20, 24 (1857)

State v. Rowe, 103 Ind. 118, 2 N.E. 294, 295 (1885)
The provision of the Indiana Constitution that the governor shall have power to remit fines under such regulations as may be prescribed by law has been held only to authorize
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the remission of fines by the governor in pursuance of provisions of law. The power of the governor in this respect is not absolute, but can only be exercised pursuant to legislative direction.
...The Governor may remit fines and forfeitures, under such regulations as may be provided by law… It is plain, we think, that the power of remission is not granted absolutely to
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the governor, but only the power of exercising it pursuant to legislative direction. If the remission ought to be made in this case, the statutory requirement can yet be complied with, and the remission granted. The sense in which the governor may be authorized to “remit fines and forfeitures” is that he may release or absolve the person against whom a fine or forfeiture has been adjudged from its payment after judgment.
Enforcement
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Indiana IN Const. Art. 8, § 2 Under the Indiana Constitution all fines assessed for breaches of the penal laws of the state belong to the common school fund of the state.
...The fund to be derived from the sale of County Seminaries, and the moneys and property heretofore held for such Seminaries; from the fines assessed for breaches of the penal
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laws of the State; and from all forfeitures which may accrue;…
Revenue flow
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Indiana IN Const. Art. 1, § 16 Are there limits to the state’s ability to recoup fees for counsel under the state constitution? There is a constitutional limitation on excessive fines in the criminal context.
Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature
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of the offense.
Ability to pay
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Indiana Ind. Code § 33-37-2-3
Eliseo v. State, 14 N.E.3d 778, 780 (Ind. Ct. App. 2014)
(e) If, after a hearing under subsection (a) or (b), the court determines that a convicted person is able to pay part of the costs of representation, the court shall
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order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person. The clerk shall deposit the amount paid by a convicted person under this subsection in the county's supplemental public defender services fund established under Ind. Code § 33-40-3-1. Eliseo argues the trial court abused its discretion when it imposed a public defender fee of more than $100.00. He cites Ind.Code § 35–33–7–6, which sets a $100.00 cap for the public defender fee following a felony conviction. But the trial court “can order reimbursement [of fees] under any [of the statutes] or a combination thereof.” Jackson v. State, 968 N.E.2d 328, 333 (Ind.Ct.App.2012). Two other statutes, Ind.Code § 33–40–3–65 and Ind.Code § 33–37–2–36 give the trial court discretion in determining the public defender fee imposed. As stated above, because the trial court ordered payment after incarceration, it most likely relied on Ind.Code § 33–37–2–3 in determining the amount of the public defender fee, which does not have a cap on the amount. Thus, the trial court did not abuse its discretion by ordering Eliseo pay a public defender fee of $300.00. See, e.g., Kimbrough v. State, 911 N.E.2d 621, 638 (Ind.Ct.App.2009) (holding the requirement to pay a $500.00 public defender fee was not an abuse of discretion).
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.
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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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Wyoming Murray v. State, 855 P.2d 350), (WY 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).
With respect to imposing a surcharge on a defendant under Section 1-40-119, the court is required to find an ability to pay before ordering an assessment.
We agree with Appellant that the court was required to find that he had [**28]  an ability to pay before ordering the assessment. Murray v. State, 1993 Wyo. LEXIS 110, *27-28,
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855 P.2d 350, 359 (Wyo. 1993)
Ability to pay
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Wyoming Murray v. State, 855 P.2d 350), (Wyo. 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).
With respect to imposing restitution under Section 7-9-103(a) and 7-9-102, the court must only make a specific finding when the defendant does not have any ability to pay.
Henceforth, the court must make a specific finding only when the defendant does not have a present or prospective ability to pay. Although the court is not required to specifically
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find that a defendant has the ability to pay, the record must still contain evidence to  support the existence of a present or future ability to pay. Murray v. State, 1993 Wyo. LEXIS 110, *26-27, 855 P.2d 350, 359 (Wyo. 1993)
Ability to pay
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Wyoming Billis v. State, 800 P.2d 401, 433, (Wyo. 1990) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? The court has the authority to require the defendant's payment of his legal fees.
Under W.S. 7-6-106(d) (June 1987 Repl.) the courts have the authority to order a defendant to repay the state for the cost of defense services. Billis v. State, 800 P.2d 401,
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433, 1990 Wyo. LEXIS 119, *100 (Wyo. 1990)
Fines and fees