Factors to Consider When Thinking about a Defendant’s Ability to Pay

In my last post, I wrote about when the court should and must consider a defendant’s ability to pay a monetary obligation. Today’s post talks about some of the specific factors the court might consider in evaluating a person’s ability to pay. Income. A defendant’s income is a sensible starting point in the evaluation of his or her ability to pay a monetary obligation. A common practice used to evaluate a person’s eligibility for all sorts of government programs is to compare his or her income to the federal poverty guidelines. The guidelines are calculated annually using Census Bureau data and the Consumer Price Index and published in the Federal Register by the U.S. Department of Health and Human Services. They include different amounts for different household sizes. The guidelines are appealing as a readily accessible and standardized benchmark, but many experts think they are outdated. They have of course been adjusted for inflation over the years, but they are still calculated based on a methodology developed over a half century ago that made certain assumptions about spending on food relative to other necessities that no longer hold true. As a result, many programs condition eligibility on a multiplier of the guidelines—sometimes as much as 300 percent or more. The guidelines for 2018 are shown here, including some of the multipliers used for various purposes. Within the court system, a judge or perhaps an entire judicial district might promote consistency and predictability in their approach to cost waivers by, for example, [...]