Evaluating Ability to Pay

Today’s post considers when a court should—and sometimes must—evaluate a defendant’s ability to pay a monetary obligation in a criminal case. The statutes governing different monetary obligations vary in their approach to evaluating a defendant’s ability to pay at the point of imposition. For example, the restitution statutes expressly require the court to consider the defendant’s ability to pay before imposing restitution. The law even gives some guidance on what factors the court must consider, saying the judge “shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution.” G.S. 15A-1340.36. The court may discount the restitution amount and order partial restitution “when it appears that the damage or loss caused by the offense is greater than that which the defendant is able to pay.” Id. (Remember that “may,” because I’ll come back to it at the end of the post.) The fines statute is more permissive, but less specific. It says the court “should consider the burden that payment will impose in view of the financial resources of the defendant,” G.S. 15A-1362(a), but offers no specific criteria for consideration. Other cost and fee statutes don’t include an express requirement to consider ability to pay, but they of course include provisions for waiver and exemption. In context, the obvious idea behind those [...]