The Advocate, Vol. 21, No. 2 (March 1999)

The Effects of Indigency on Costs, Fines, Restitution, Recoupment

Ed Monahan, Deputy Public Advocate
Jeff Sherr, Assistant Director of Education & Development

The 1998 General Assembly's sweeping criminal law legislation substantially increased the financial responsibilities of criminal defendants. This effort has two primary purposes: 1) the need by different criminal justice agencies for increased funding; 2) the philosophical desire to have criminal defendants pay for their crimes. Public defenders especially have increasingly relied on the $50 administrative fee, the $50 DUI fee and recoupment for funding of delivery of services statewide. Over 15,000 or 15% of indigent clients are represented by defenders funded from these fees. The fees and costs created or increased by HB 455 were:

In this context of these significant financial responsibilities, it is important that the assessment of fees and costs be done without violating constitutional limits, and with an appreciation for the partial or complete indigency of many defendants. The reality is that most defendants will be able to pay some portion of these economic penalties. Many will not be able to pay any penalty. Very few will be able to pay all the entire penalty.

A. Indigency

The United States Supreme Court "has long been sensitive to the treatment of indigents in our criminal justice system." Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 2068, 76 L.Ed.2d 221 (1983). Kentucky caselaw and statutes likewise reflect that sensitivity.

B. Costs

Kentucky law prohibits a judge from assessing court costs on a person who is indigent. KRS 31.110(1)(b) states, "The courts in which the defendant is tried shall waive all costs." KRS 453.190(1) states that "A court shall allow a poor person residing in this state to file or defend any action or appeal therein without paying costs…."

In Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987) the trial court ordered the defendant who was represented by a public defender to pay $65 court costs upon sentencing for attempted rape and sexual abuse. The Kentucky Supreme Court found it improper under KRS 31.110(1)(b) to impose court costs on a needy person.

C. Fines

KRS Chapter 534 covers fines, methods of imposing fines and response to failure to pay fines. Kentucky statutes prohibit imposing a fine on an indigent.

While there is no constitutional prohibition to imprison a defendant for a willful refusal to pay a fine, it is unconstitutional to incarcerate an indigent for nonpayment of a fine for any other reason.

Felonies. KRS 534.030 sets out for felonies the limits of fines and specifies factors for determining the amount and method of payment:

  1. defendant's ability to pay;
  2. hardship on defendant's dependents;
  3. impact on ability to pay restitution to victim;
  4. any gain from the crime.
In the penalty phase of Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994) the judge instructed jurors to set a prison sentence and fine. The Court reversed, holding that any fine is to be imposed by the judge, not a jury. The Simpson court held that KRS 534.030(4) statute also prohibits imposing a fine on an indigent. KRS 534.030(4). The Simpson court confirmed the meaning of the statute and also held concluded that it was inappropriate for a judge to impose a fine on someone represented by an assistant public advocate, since such representation necessarily meant the judge had determined the defendant to be indigent.

The Kentucky law did not always recognize that an indigent could not be fined. In Beane v. Commonwealth, 736 S.W.2d 317 (Ky. 1987) the Court held 5-2 that the mandatory $150 DUI service fee was a fine or penalty, not a cost, and therefore not available by an indigent under KRS 453.190's waiver of costs for an indigent did not apply. However, the Court observed that indigency was "a factor which may be considered under KRS 534.060 if it is later shown to be a factor in his subsequent nonpayment." Id. at 318. Effective July 13, 1990, HB 603 overruled Beane by amending KRS 534.030 and 534.040 by adding in a new section which stated, "fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31."

Misdemeanors. KRS 534.040 sets out the limits of fines for misdemeanors. In misdemeanor cases under KRS 534.040, it is the jury, not the judge, which sets the fine. and, unlike the felony fine process, contemplates jurors setting them. Like the felony fine process, it prohibits imposition of a fine on an indigent. KRS 534.040(4).

Unlike the statute that addresses fines for felonies, this statute does not provide criteria for determining the amount of fines. The statute's Commentary indicates that there is a different Penal Code philosophy rationale for finesing for misdemeanorsants than there is for compared to fininges felonies. The Penal Code views fines for misdemeanors as deterrence.

Nonpayment Process. KRS 534.060 outlines a specific and mandatory response to the nonpayment of fines for both felonies and misdemeanors. This statutory procedure was enacted to comply with federal constitutional decisions, and is as follows:

  1. The court on its own or on motion of the prosecutor can require a defendant to show cause why he should not be imprisoned for failure to pay.
  2. The court can issue a warrant for arrest or a summons for the defendant's appearance.
  3. KRS 534.060(2) prohibits imprisonment for nonpayment of a fine as long as the defendant did not intentionally fail to pay and he has made a good faith effort to pay.
  4. If the failure to pay is excusable, the court can adjust the time for payment or the amount to be paid, or order the defendant to work for local government at a reasonable rate of pay if the defendant is not otherwise employed and is not disabled and it will not pose an economic hardship on his dependents. A court cannot order more than 40% of gross pay to go towards the fine.
The United States Supreme Court has held "that a state may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly." Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).

In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) the statutory penalty only allowed a fine. The Court stated, "although the instant case involves offenses punishable by fines only, petitioner's imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination since, like Williams, petitioner was subjected to imprisonment solely because of his indigency." Id. at 397-98.

In Spurlock v. Noe, 467 S.W.2d 320 (Ky. 1971) the defendant was imprisoned for 12 months with a $3,000 fine. When the jail term was served, the defendant was not released since the fine was not paid. At the hearing held after the petition for writ of habeas corpus was filed, the defendant demonstrated he was unable to pay the fine. The Court held: "we think that the teaching of Tate v. Short is that a defendant who is in custody solely and only because he cannot make immediate payment of a fine by reason of indigency must be released from custody forthwith. This does not mean, however that the fine is extinguished or that the state is powerless to compel its payment. An indigent person may not be continued in prison for nonpayment of a fine without having been given some reasonable alternative opportunity to satisfy the fine." Id. at 321.

D. Restitution

Bearden v. Georgia, supra held that revocation of probation and imprisonment of an indigent for failure to fully pay restitution and a fine violated due process absent a willful refusal to pay or absent a funding that an alternative punishment was inadequate.

Danny Bearden pled guilty and was placed on probation with a 3 year sentence deferred. Probation was conditioned on payment of a $500 fine and $250 in restitution over four months. Bearden borrowed $200 from his parents for his first payment. A month after his plea he was laid off from his jobwork. He could not read and had a 9th grade education, was unable to find other work., As he and had no other income or assets. U he was unable to pay the balance, and the trial judge revoked his probation and imprisoned him.

The Court recognized that a "defendant's poverty in no way immunizes him from punishment." Id. at 2071. But the Court found that imprisoning a person for failure to pay a fine or restitution could only constitutionally occur if:

Alternatives to Imprisonment. The Court offered common sense alternatives to imprisonment that trial judges should consider: Revocation of Probation. Bearden recognized that fourteenth amendment due process provided "substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution." Black v. Romano, 471 U.S. 606, 611 (1985). While a judge is generally not constitutionally required to consider alternatives to revoking probation generally, due process guarantees require a judge to consider alternatives to incarceration for a defendant's failure to pay a fine or restitution when a defendant is unable to pay despite reasonable efforts.

E. Recoupment & Partial Payments

Kentucky's public defender's statutes provide for recoupment of money from defendants who were while indigent during their criminal proceedings but later have funds to pay for their prior representation. KRS 31.150.

A person who can afford to partially pay for an attorney, can be assessed a partial amount under KRS 31.120(4).

In James v. Strange, 407 U.S. 128 (1972) the United States Supreme Court held that the Kansas recoupment scheme violated equal protection guarantees because there was unequal treatment between an indigent criminal defendant's treatment and that of a civil debtor since Kansas afforded the civil debtor many protections and procedures not offered the criminal defendant.

In Fuller v. Oregon, 417 U.S. 40 (1974) the defendant was sentenced to 5 years of probation, conditioned on, among other things, repayment of the costs for the attorney and investigator who were appointed for him.

The Oregon scheme, unlike Kansas' in James v. Strange provided criminal defendants some protections. Defendants did not have to repay if not convicted. A defendant had to have the subsequent ability to pay. The financial resources of the defendant had to be considered by the judge. The defendant had the right to petition the court to remit unpaid portions, and a defendant could not be held in contempt if his failure to pay was not intentional refusal.

The Court held this scheme constitutional since it only required payment from those who obtained the ability to pay and since it provided criminal defendants with the protections afforded civil debtors.

F. Practice Tips

  1. Explain the Public Advocacy Administrative fee to your client and that is is paid to the clerk not to you.
  2. Explain the possibility of an additional recoupment fee and this court policy toward imposing the fee.
  3. Speak with you client about his resources to pay these fees.
  4. In cases when the client can not pay the fee, be prepared to argue to the court that the fee should be waived.
  5. Make sure the judge does not impose costs on your indigent client in the final judgment.
  6. Make sure the court does not impose a fine on your client unless your client consents pursuant to a plea.
  7. If the judge imposes legitimate financial responsibility on your client, insure that it is consistent with the client's ability to pay in the future in light of other financial obligations.
  8. Explain to your client that if it appears he will be unable to pay he needs to document his financial situation and be able to show what efforts he has made to obtain the funds. Be ready to help your client with a motion to extend the time to make the payment.
Edward C. Monahan
Deputy Public Advocate

Jeff Sherr
Assistant Director of Education & Development
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006, #236; Fax: (502) 564-7890

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