Reconsidered Fines and Fees Hearing Act

Codifying Bearden v. Georgia to Reevaluate Unpaid Financial Sanctions before Imprisonment

Courts routinely order those convicted of crimes to pay fines and fees beyond their means. When they fail to pay, offenders may be imprisoned, often without a hearing.

The U.S. Supreme Court has held the lack of a meaningful hearing is unconstitutional in many cases. Most notably, the U.S. Supreme Court ruled in Bearden v. Georgia that a probationer can be jailed for not paying a fine only if the state shows, by means of a hearing, he either (a) could have paid but willfully refused to pay or (b) failed to make sufficient efforts to acquire the resources to pay.

But the requirement often is ignored for want of state-level codification. With state and municipal governments increasingly relying on fines and fees to generate revenue, it is crucial that no one is imprisoned without a court reconsidering if the offender had the ability to pay and evaluating whether he tried to pay.

What can state legislators do?

The Institute for Justice offers the Reconsidered Fines and Fees Hearing Act (RFFHA). It is legislation that compels courts to reconsider an offender’s ability and examine his efforts to pay before ordering imprisonment for unpaid fines and fees. It incentivizes offenders to make good-faith efforts to pay. And it may benefit the state by increasing payments and reducing prison populations.

RFFHA distinguishes between fines and fees and provides different treatments for each.

Fees are civil financial obligations, such as court costs. They are not meant to be punitive. So RFFHA prohibits imprisonment for nonpayment of fees.

Fines are criminal financial obligations, such as speeding tickets. Fines rightly intend to be punitive, but the Supreme Court has set limits when nonpayment may lead to imprisonment. RFFHA codifies those limits.

When an offender fails to pay a fine, the court must reconsider his ability and examine his good-faith efforts. When he was unable to pay despite good-faith efforts, the court may order imprisonment only if no alternative punishment is adequate.

Similarly, restitution is a financial obligation created as a criminal sanction. Although many would hope otherwise, restitution similarly goes unpaid. IJ’s model invites legislators to address this reality.

In total, RFFHA helps courts to make these determinations. It suggests factors for courts to reconsider an offender’s ability and evaluate his good-faith efforts to pay. It helps ensure that imprisonment for failure to meet financial obligations is reserved for those who willfully refuse to pay, not for those who have too little money despite best efforts.

Model Legislation


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