This is the third of our four-part Legislative Roundup series, which offers an in-depth analysis of each core area of FFJC’s reform efforts including: debt-based driver’s license restrictions, state and local fee elimination, ability-to-pay practices, and automated traffic enforcement. This series will prepare advocates to take on the upcoming legislative session more energized, informed, and better equipped to fight for justice.
Missed the last post? Read it here.
Next up, how 2025’s ability-to-pay policies are helping create a more equitable justice system.
FFJC believes ability-to-pay assessments are an important step — not a comprehensive solution — toward creating a fairer system and eliminating government reliance on fines. Ability-to-pay determinations should be conducted at sentencing before assessing any fines. They should presume that some individuals will not have the ability to pay a fine in any amount, and should allow individuals to utilize alternatives to fines, such as community service and allow for payment over time through payment plans. For fees, ability to pay determinations should only be a mitigation step until wholesale fee elimination is achieved.
But even when wholesale application of FFJC’s policy guidance is not possible, there is value in implementing and adopting individual elements of this guidance for creating effective and meaningful ability to pay determinations. While legislative reform is not the only avenue for these reforms, in recent years, jurisdictions have made efforts to implement ability to pay standards and processes through the passage of legislation. That continued this year, with the introduction of bills waiving or reducing fines and fees based on a finding of indigency, adopting payment plans, and reforming community service standards. Although the number of wins was small and limited, the mere fact that the number of bills attempting to address the ability to pay is on the rise is reflective of an understanding that a meaningful determination of a person’s ability to pay must have a role in this system.
Movement toward creating meaningful Ability-to-pay Procedures
Illinois passed SB 108, supported by the Illinois Fines & Fees Coalition coalition, of which FFJC is part, to make permanent a Cook Country program providing for indigency waivers for traffic fees and assessments for people without the ability to pay. Arkansas passed legislation, HB 1926, that requires a court to make an ability to pay finding before suspending a person’s driver’s license for unpaid fines and fees. Delaware lawmakers are considering HB 133, which gives courts the discretion to waive fines and fees and creates a presumption that fines and fees should not be imposed when a person meets certain criteria, such as receiving public assistance and being represented by a public defender. HB 133 has passed the Delaware House Judiciary Committee, and the legislature will resume consideration when it reconvenes next year. In Oregon HB 2491, died in committee, but would have authorized a court to remit all or part of any fines, fees, or costs if the court determines that requiring payment would present a manifest hardship for the petitioner or the immediate family of the petitioner. A bill was introduced in Texas, SB 1776, which would have prohibited a court from assessing more than 5 percent of a person’s monthly income to pay fines and costs, without their agreement. Unfortunately, that bill did not receive a hearing last session.
When an individual does not have the ability to pay fines or fees, community service defined broadly to include any pro-social activity that can benefit the greater community or reduce the chance of reoffending can be an appropriate alternative to financial sanctions. This session, Utah enacted HB 383, which updates its compensatory service rules to credit a person’s out-of-pocket cost of any court-ordered treatment or course toward payment of their criminal fines. Texas introduced HB 307, which passed the House, and would have updated its community service laws to discharge $150, as opposed to the current law of $100, for each eight hours of community service performed, if enacted.
FFJC advocated for two bills this session that will broaden access to fair payment plans. Nevada passed SB 120, which requires a court to allow a person to enter into a payment plan for the payment of fines and fees, and eliminates fees for payment plans. Virginia HB 1661 now permits individuals to request to enter into an installment agreement set at $25 per month, an important first step toward creating uniformity amongst courts and increasing access to more fair and flexible payment options.
Creating meaningful ability-to-pay procedures doesn’t solve the underlying drivers of criminal justice debt, which are only truly addressed through fee elimination and further refinement of both the assessment and enforcement of fines. But even when ability-to-pay processes are improved one element at a time, ability-to-pay is a useful mechanism for mitigating the harms caused by the assessment of unaffordable fines and fees. FFJC encourages lawmakers to continue pushing for legislation implementing ability-to-pay procedures and alternatives to fines and fees wherever possible.
Stay tuned for the final part of our 2025 legislative roundup series: Automated Traffic Enforcement.