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State Citation Question Brief answer Language from the opinion When does the case apply?
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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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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.
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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
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Vermont State v. Sausville, 151 Vt. 120, 121, 557 A.2d 502, 503 (1989)
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 is required to establish defendant's ability to pay restitution even if defendant does not take the stand on their own behalf.
Defendant's failure to take the stand does not obviate the court's duty to determine if the restitution award is within defendant's ability to pay. If defendant does not take the
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stand on his own behalf, it will be necessary for the State to establish in some other manner defendant's ability to pay restitution.
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Vermont Vermont State Constitution Ch. II § 40 Other applicable case law Imprisonment for debt is unconstitutional. No person shall be imprisoned for debt. Ability to pay