Small Fines And Fees, Large Impacts: Ability-To-Pay Hearings


Although with varying caveats, the Washington Supreme Court, Wisconsin Supreme Court, and Montana Supreme Court must inquire regarding defendants’ ability to pay before imposing LFOs.

Excessive fines and fees on low-income people threaten our criminal justice system and violate the Constitution’s Due Process and Excessive Fines Clauses. The Fourteenth and Eighth amendment requires courts to consider a defendant’s ability to pay before imposing legal financial obligations (LFOs) on indigent defendants. Criminal justice debt can create harmful consequences for individuals, such as a criminal record, poor credit score, and loss of driver’s license. Fines and fees are also fiscally unsound. Collection practices are expensive, and revenue often does not offset court costs, prosecution costs, or costs of extended probation for nonpayment. This article examines whether the United States Constitution requires an ability-to-pay (ATP) determination before imposing fines and fees and identifies the burdens that legal financial obligations impose on society. The author concludes that a system for ATP determinations is feasible and constitutionally required for all LFOs. ATP determinations could lessen poverty penalties, relieve racial disparities, alleviate conflicts of interest, and increase revenue for many jurisdictions. 

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  • Establish a system for ATP determinations before imposing LFOs.
Tia Lee Kerkhof
Southern California Law Review