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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, + 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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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 + See moreof the offense.
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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 + See moreas long as the hearing is held before the sentence is completed.
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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), + See moresee 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.
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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 + See moreagainst 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.
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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 + See moreor 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).
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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, + See morethe 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 + See morethe 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.
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...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 + See morethe 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.
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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 + See morelaws of the State; and from all forfeitures which may accrue;…
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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 + See moreof the offense.
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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 + See moreorder 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).
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Ability to pay | ||
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Iowa | State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
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A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. | A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. | Ability to pay |
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Iowa | State v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App. 2016) | A defendant who seeks to upset a restitution order has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. | A defendant who seeks to upset a restitution order, however, has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. | Ability to pay | |
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Iowa | Goodrich v. State, 608 N.W.2d 774, 776 (Iowa 2000) | Ability to pay must be determined before imposition. |
Constitutionally, a court must determine a criminal defendant's ability to pay before entering an order requiring such defendant to pay criminal restitution pursuant to Iowa Code section 910.2. Section 910.2 + See moreauthorizes a court to order the offender to make restitution of court costs and court-appointed attorney's fees “to the extent that the offender is reasonably able to do so.
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Ability to pay | |
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Iowa | State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct. App. 2016) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? |
The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant + See moreis reasonably able to pay.
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The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant + See moreis reasonably able to pay. . . . Thus, before ordering payment for court-appointed attorney fees and court costs, the court must consider the defendant's ability to pay.
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Ability to pay |
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Oregon | State v. Mickow, 277 Or.App. 497, 502 (2016) |
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof, + See morethe sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
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Courts must determine that the defendant is or may be able to pay the fees, and take the financial resources of the defendant into account, as well as the nature + See moreof the burden that the fee obligation would place on that person
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Among the safeguards that were pivotal to the [Supreme] Court's conclusion [upholding Oregon's ability-to-pay determination post-Gideon] were the statutory requirements that the sentencing court must (1) determine that the defendant + See moreis or may be able to pay the fees; and (2) take the financial resources of the defendant into account, as well as the nature of the burden that the fee obligation would place on that person. Id. at 45, 53 n. 12, 94 S.Ct. 2116.
State v. Mickow, 277 Or.App. 497, 502 (2016)
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Ability to pay |
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Oregon | Bobo v. Kulongoski, 338 Or. 111, 122 (2005) | Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? |
Unclear, and answer is unavailable as to courts, but a line of cases suggests that merely having a fund where assessed fees support state functions does not constitute a conflict + See moreof interest
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Considering the wording of Article IV, section 18, its history, and the case law surrounding it, we conclude that the question whether a bill is a “bill for raising revenue” + See moreentails two issues. The first is whether the bill collects or brings money into the treasury. If it does not, that is the end of the inquiry. If a bill does bring money into the treasury, the remaining question is whether the bill possesses the essential features of a bill levying a tax. As Northern Counties Trust makes clear, bills that assess a fee for a specific purpose are not “bills raising revenue” even though they collect or bring money into the treasury.
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Revenue flow |
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Oregon | State v. Fuller, 12 Or.App. 152, 158–59 (1973), aff'd, 417 U.S. 40 (1974) | Are there limits to the state’s ability to recoup fees for counsel under the state constitution? | Yes, but such limits are predicated on the indigency of the defendant |
Thus, an indigent defendant is entitled to free counsel immediately (which is when he needs it), but may be later required to repay this cost if he ‘is or will + See morebe’ able to do so, that is, if he has ceased or likely will cease to be indigent. A defendant is not denied counsel while he is indigent, and he is required to repay appointed counsel's fee only if and when he is no longer indigent. If there is no likelihood that a defendant's indigency will end, a judgment for costs cannot be imposed. ORS 161.665(3).
State v. Fuller, 12 Or.App. 152, 158–59 (1973), aff'd, 417 U.S. 40 (1974)
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Fines and fees |
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Oregon | State v. Goodenow, 251 Or.App. 139, 144–45 (2012) | Other applicable caselaw |
Courts are not limited by any numerical or proportionality requirement to seize the proceeds of a crime, in this case, all the earnings from a winning lottery ticket purchased using + See morean illegally obtained credit card
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Oregon's criminal forfeiture statutes do not limit the amount of property that may be forfeited as the proceeds of prohibited conduct. They do not require courts to determine whether a + See moreforfeiture of a defendant's property is proportional to the defendant's crime. ORS 131.585(1) (“The court shall enter judgment to the extent that the property is proceeds of the crime of conviction or of past prohibited conduct that is similar to the crime of conviction.”). (In that respect, the statutes treat the forfeiture of the proceeds of defendants' crimes differently from the forfeiture of instrumentalities of defendants' crimes. The statutes require courts to determine whether the forfeiture of an instrumentality of a defendant's crime, such as a vehicle or building used in the commission of a crime, is proportional to the crime and identify factors to consider in making that determination. ORS 131.585(2)(a)-(g).4)
State v. Goodenow, 251 Or.App. 139, 144–45 (2012)
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Enforcement |
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Tennessee |
State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002); State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994); Poole v. City of Chattanooga, No. E199901965COAR3CV, 2000 WL 310564, + See moreat *4 (Tenn. Ct. App. Mar. 27, 2000)
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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 imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other mitigating and enhancing factors. The burden is on the + See moredefendant to prove a present inability to pay.
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The trial court's imposition of a fine, within the limits set by the jury, is to be based upon the factors provided by the 1989 Sentencing Act, which include the + See moredefendant's ability to pay that fine, and other factors of judgment involved in setting the total sentence. Trial and appellate courts must also consider other factors, including prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, overall sentence. The seriousness of a conviction offense may also support a punitive fine.
[T]he burden is on the contemner to prove inability to pay
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Ability to pay |
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Tennessee | State v. Rose, No. C.C.A. 3, 1989 WL 22804, at *2 (Tenn. Crim. App. Mar. 15, 1989) (Daughtrey, J., concurring in part) | Does the states separation of powers doctrine limit the ability of courts to impose or collect revenue? |
To some degree. Only the legislature can establish that conduct is criminal and is subject to a fine. Courts cannot impose a fine for behavior that the legislature has not + See morecriminalized
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The power to declare conduct to be criminal and to set forth the gradation of penalties for various offenses is a matter wholly within the power and discretion of the + See morelegislature, which discretion, exercised within constitutional limits, is not subject to review by the courts.
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Fines and fees |
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Tennessee | State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986) |
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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This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur. Furthermore, + See morein at least one instance, the Tennesee Court of Criminal Appeals has recognized that conflicts might arise regarding fines and law enforcement.
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Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect + See moreeach defendant's right to counsel. "There is in the record an interesting letter from this assistant district attorney general to the defendants' attorney in which he asserts there is a conflict of interest because the state wished to talk with four of the accused, out of the presence of counsel, to explain the possibility of entering a nolle as to one or more of these persons and agreeing to a fine upon a guilty plea as to the others. If the state has no case against these people they could and should move to dismiss the charges without need to consult with them, either with or without counsel present."
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Enforcement |
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Tennessee | State v. Miller, No. W200200640CCAR3CD, 2003 WL 1618070, at *3 (Tenn. Crim. App. Mar. 28, 2003) | Are there limits to the states ability to recoup fees for counsel under the state constitution? |
In making its ability-to-pay determination, the court can require a defendant to pay as much as it determines the defendant is able to pay. It can modify this order if + See morethere is a change in the defendant's financial circumstances.
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"If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is + See morefinancially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of such court such sum as the court determines the accused is able to pay. Such sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused."
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Ability to pay |