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State Citation Question Brief answer Language from the opinion When does the case apply?
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South Dakota State v. Webb, 856 N.W.2d 171, 174 (S.D. 2014)
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).
This is the first instance in which we have addressed the Excessive Fines Clause as it applies to a criminal fine. . . “First, the claimant must make a prima
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facie showing of gross disproportionality; and, second, if the claimant can make such a showing, the court considers whether the disproportionality reaches such a level of excessiveness that in justice the punishment is more criminal than the crime. ...One of the primary considerations for assessing gross disproportionality should necessarily be the Legislature's judgment about the appropriate punishment for the offense. ...
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South Dakota State v. Huth, 334 NW 2d 485 (1983); White Eagle v. State, 280 NW 2d 659 (1979). Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
To a very limited extent. The South Dakota Supreme Court has upheld (at least twice) the state's law requiring repayment of indigent counsel fees. The Court held in both instances
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that, because of language statung that a failure to pay by the defendant because of inability to pay would not be considered a violation of probation, that revocation for non-payment would not be tantamount to imprisonment for debt but rather a sanction imposed for an intentional refusal to obey a court order.
Appellant's first contention is that imposing the repayment of attorney fees as a condition of probation is a violation of his right to equal protection of the law because, as
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a result of such a condition, an indigent defendant is treated differently than a non-indigent defendant. Appellant argues that an indigent defendant can be imprisoned, by revocation of probation, for nonpayment of a debt whereas a nonindigent defendant who does not pay his attorney fees cannot be imprisoned for his failure to pay a debt. We do not agree with appellant's analysis. Appellant's right to equal protection of the law requires that the law be applied equally. That was done in this case. He was given the same choice that any other defendant in this situation, indigent or not, would have been given: probation with conditions or imprisonment. He was made fully aware of all the conditions being imposed and he accepted them. The conditions imposed need not be the same for every defendant and the fact that they are not is not a denial of equal protection. Conditions of probation may be tailored to suit the needs, practicalities and realities of each case to better serve the defendant and the public. The decision whether or not to accept the conditions was given to appellant just as it is to any defendant in a similar situation. Appellant's equal protection rights were not violated. See State v. Gerard, 57 Wis.2d 611, 205 N.W.2d 374 (1973). Closely related to his equal protection argument is appellant's contention that imposition of repayment of attorney fees as a condition of probation is unconstitutional in that any revocation of probation for failure to pay said fees would be imprisonment for debt, which is prohibited by Article VI, § 15, of the South Dakota Constitution. Again, we disagree with appellant. In Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), the United States Supreme Court ruled that repayment of attorney fees as a condition of probation, as provided by Oregon statutes, was not a violation of Mr. Fuller's constitutional rights. Oregon's statutes required that a probatee not be required to pay said fees unless he is or will be able to do so, that the probatee may petition to have the unpaid portion "forgiven"; and that no probatee may have his probation revoked due to nonpayment if he shows that his failure to repay was not attributable to an intentional refusal to obey the order or a lack of a good faith effort to make the payments. The Court approved the statutory scheme as being within constitutional guidelines pointing out that any probatee who truly is unable to make such payments due to hardship or other disability will not lose his freedom because of his failure to do so. Although the issue of imprisonment for debt was not brought before the Court in Fuller and was only discussed in a footnote, we agree with the majority's observation that, since no probatee who is truly unable to make repayment will have his probation revoked for such failure, the condition, if enforced, is not imprisonment for debt, but is rather "a sanction imposed for `an intentional refusal to obey the order of the court[.]'"
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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.
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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.
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Kansas State v. McGlothin, 747 P.2d 1335, 1338 (Kan. 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).
The trial judge is statutorily required to make specific findings before imposing a fine and also must state on the record that she has taken into account the defendant's financial
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resources and the nature of the burden that payment of the fine would impose.
"The statute requires and we hold that where the defendant is convicted of a felony or a misdemeanor and is sentenced to imprisonment either in the county jail or in
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the custody of the secretary of corrections and a fine is to be imposed, the judge must make specific findings pursuant to 21–4607(2) before imposing a fine. The judge must also state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose, as required by 21–4607(3)."
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Kansas State v. Robinson, 132 P.3d 934, 940 (Kan. 2006). Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
The sentencing court must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have
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been weighed in the court's decision.
"First, the sentencing court, at the time of initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating
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on the record how those factors have been weighed in the court's decision. Without an adequate record on these points, meaningful appellate review of whether the court abused its discretion **941 in setting the amount and method of payment of the fees would be impossible. See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000) (noting difficulty of reviewing case in which district court failed to state findings, conclusions). Second, a sentencing court's failure to include such explicit consideration of the defendant's financial circumstances in the record does not render the sentence associated with the resulting assessment *547 “illegal,” as that term is used in Kan. Stat. Ann. § 22–3504. As we have already said, the assessment itself is not punitive; it is not a punishment or part of the sentence at all. Its connection to a sentence does not convert that sentence to one fitting the narrow definition of “illegal,” i.e., a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and means in which it is to be served. See State v. Gayden, 281 Kan. 290, Syl. ¶ 1, 130 P.3d 108 (2006).
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Kansas State v. Goeller, 77 P.3d 1272, 1276 (Kan. 2003). The defendant had the burden to present evidence of his or her inability to pay restitution.
The plain language of Kan. Stat. Ann. §2002 Supp. 21-4603d(b)(1) requires restitution “unless” the court finds a plan of restitution unworkable. Moreover, “[i]f the court finds a plan of restitution unworkable, the
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court shall state on the record in detail the reasons therefor.” The design of this provision makes clear that restitution is the rule and a finding that restitution is unworkable the exception. It also leads us to conclude that it is a defendant's burden to come forward with evidence of his or her inability to pay.
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Kansas State v. Tafoya, 372 P.3d 1247, 1252 (Kan. 2016).
A sentence is not rendered illegal simply because the district court judge fails to consider the financial resources of the defendant when determining either the discretionary amount of a fine
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or the discretionary method of payment.
"[W]e conclude that a sentence is not rendered **1252 illegal simply because the district court judge fails to consider (or fails to state on the record that he or she
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has considered) the financial resources of the defendant when determining either the discretionary amount of a fine or the discretionary method of payment. Moreover, a remand from an appellate court to a district court pursuant to these authorities to correct this error is, in substance, not a remand for resentencing. As such, the Tafoya I panel was substantively correct when it limited its mandate to vacating the fine and instructing the district court to reconsider “the method of payment of the fine.”
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Rhode Island State v. LaRoche, 883 A.2d 1151, 1155 (R.I. 2011)
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 court must give defendant an ability to pay hearing before enforcing criminal justice debt.
This Court held that before a body execution may be issued against a defendant who is a judgment debtor, the defendant must be given a hearing to determine ability to
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pay. Landrigan v. McElroy, 457 A.2d 1056, 1062 (R.I.1983). At such a hearing it is the defendant's obligation to demonstrate an inability to pay the judgment by a preponderance of the evidence. Id. In addition, with regard to a defendant's inability to pay court fees, this Court has held that “[i]n every instance the burden of proving indigence in relation to the payment of the required filing fee or other element of cost is upon the party seeking such relief.” Silvestro v. Almonte, 484 A.2d 900, 903 (R.I.1984). In our opinion, the hearing justice did not err when he required LaRoche to satisfy the court that he made sufficient bona fide efforts to payrestitution. State v. LaRoche, 883 A.2d 1151, 1155 (R.I. 2011)
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