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The guidelines are appealing as a readily accessible and standardized benchmark, but many experts think they are outdated.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, establishing a particular percentage of the FPL as a threshold below which just cause to waive will be presumed. That same percentage might be used on the back end (at a show-cause hearing or probation violation hearing) as a guide to evaluating the willfulness of a failure to pay.

Expenses. Income is only one factor in analyzing a person’s ability to pay. You must also consider a person’s expenses. The Model Penal Code incorporates that notion into its rule that “[n]o economic sanction may be imposed unless the offender would retain sufficient means for reasonable living expenses and family obligations after compliance with the sanction.” MPC Sentencing, § 6.04(6).

The burden is on the defendant to bring forward information about his or her expenses and support obligations, State v. Tate, 187 N.C. App. 593 (2007), but it could take substantial time to review them in every case. (And, if we’re being real for just a millisecond, defendants aren’t always prepared to give an accurate and succinct accounting of their various obligations.) In the absence of specific information, a court might consider creating a shorthand process using the Collection Financial Standards the IRS uses when determining a taxpayer’s ability to pay a delinquent tax liability. (I don’t think I’m being too much of a bleeding heart to suggest being at least as thoughtful as the Internal Revenue Service when considering a person’s financial obligations.) Those standards cover housing and utilities (North Carolina–specific numbers, by county, are available here); food, clothing, and other necessities (here); transportation (here); and health care (here). Add all those items together and you come up with something that looks about like this:

The bottom-line idea is that the court might consider waiving, exempting, reducing, or remitting various financial obligations to the extent that imposing them would leave the defendant without the means to cover these baseline expenses.

There are many other considerations that might come into play when evaluating a person’s ability to pay an obligation. Here is a non-exclusive list:

• Eligibility for appointed counsel
• Disability or poor health
• Lack of transportation or driving privileges
• Obligations to support dependents (including children, the elderly, and the disabled)
• Monetary obligations already owed to the court, or to another court
• Receipt of public assistance such as TANF, SSI, SSDI, SNAP, Medicaid, or veterans benefits
• Whether the defendant is a full- or part-time student
• Whether the defendant is or has recently been homeless
• Whether the defendant is, will soon be, or has recently been incarcerated, in treatment, or otherwise institutionalized

Any of those factors, or some combination of them, would surely be “just cause” to support the waiver of a cost.

Finally, I encourage you to take a holistic view of a defendant’s monetary obligations, keeping in mind the disbursement priority order set out in G.S. 7A-304(d)(1):

1. Victim restitution
2. Costs due the county
3. Costs due the city
4. Fines
5. Restitution to non-victims
6. Costs due the State
7. Attorney fees

If, based on some of the national benchmark figures shown above, you have already figured that a defendant will be unable even to pay full restitution, it would make less sense to impose a discretionary fine that is three rungs lower on the collection priority scale—especially when the unpaid fine might later trigger a license revocation.