by Leah Romm*

What principles should courts keep in mind when inquiring into a defendant’s financial situation? In this Contribution, Leah Romm (’19) discusses the equal protection and due process challenges to incarcerating individuals because of their inability to pay fees or fines. Ultimately, this Contribution argues that courts are constitutionally required to inquire into and determine the financial status of individuals who fail to pay the fees or fines they owe.

The Fourteenth Amendment prohibits incarcerating individuals solely because they are too poor to pay the fees or fines they owe.2 But how, exactly, can courts differentiate between those who willfully refuse to pay fines from those who cannot afford to pay them? In the absence of a strict standard, what principles should courts keep in mind when inquiring into a defendant’s financial situation?

This Contribution will argue that courts are constitutionally required to inquire into and determine the financial status of individuals who fail to pay the fees or fines they owe. Ideally, courts should conduct hearings for individuals who fail to pay, but where such hearings are not feasible, financial disclosure forms must capture a coherent and complete picture of the defendant’s financial status and offer an opportunity to claim indigence. Given the significant number of individuals who are burdened by criminal justice debt, many of whom are already caught in terrible cycles of poverty, courts must ensure that due process and equal protection is afforded to all defendants—not just the wealthy ones.

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In a series of cases decided in the 1970s and 1980s, the Supreme Court determined that the Fourteenth Amendment prohibits incarcerating an individual for failing to pay a fine simply because he is indigent.3 The final in a trifecta of cases, Bearden v. Georgia tied together the findings of its predecessors and determined that a defendant could not be imprisoned for failing to pay fines or fees without an inquiry into the defendant’s ability to pay.4

The defendant in Bearden was a probationer who was ordered to pay $750 in fines and restitution after being convicted of burglary and theft offenses.5 Bearden paid in part but subsequently lost his job and was unable to complete his payments, so his probation was revoked and he was imprisoned.6 Bearden appealed, arguing this imprisonment for his inability to pay the fines was a violation of his Equal Protection and Due Process Rights under the Fourteenth Amendment.

The Supreme Court explained that, where an individual does not “willfully” refuse to pay but rather makes “sufficient bona fide efforts” and nevertheless cannot pay, the court must consider “alternative measures” to imprisonment.7 The Court held that only if such alternative measures are insufficient to satisfy the State’s penological interests can an individual who has made bona fide efforts be incarcerated.8

The Court’s Equal Protection and Due Process reasonings in Bearden are bound up in one another.9 Incarcerating an individual for his inability to pay—where someone who could pay would not be incarcerated—constitutes the sort of invidious discrimination the Fourteenth Amendment prohibits.10 And failing to inquire into the defendant’s financial status deprives him of the proper process or procedures by which a court might determine his ability to pay—an indispensable inquiry if the Equal Protection component hinges on ability to pay.11 Failure to inquire into a defendant’s ability to pay deprives him of his freedom due only to his faultless inability to pay and thereby violates “the fundamental fairness” that the Fourteenth Amendment guarantees.12

Similarly, in 2011 in Turner v. Rogers, the Supreme Court held that incarcerating an individual for failure to pay child support without determining the willfulness of nonpayment was unconstitutional.13 Though the Court did not think defendants in civil contempt proceedings necessarily have a right to counsel, it did note that a failure to provide “alternative procedural safeguards” violated the Fourteenth Amendment’s Due Process Clause.14 The Supreme Court did not prescribe any specific safeguards, but it noted that the examples offered by the Solicitor General during oral argument were, “if employed together,” effective.15 These safeguards included “(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for  the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”

The Turner Court’s reasoning did not take up the Fourteenth Amendment’s Equal Protection Clause inquiry but instead focused on the Due Process Clause. Applying the Mathews v. Eldridge factors,16 the Supreme Court emphasized the importance of the private interest—freedom from incarceration—and the clear risk of erroneous deprivation of that interest in the absence of accurate decision-making.17 Though this balance does not always require that the defendant be guaranteed counsel, it does require, in the absence of counsel, certain protections.18

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While the Supreme Court has emphasized the role of an inquiry into defendants’ ability to pay in Bearden and Turner, it is unclear what exactly such an inquiry should look like or whose responsibility it is to initiate one.19 A glance at a financial disclosure form is rarely enough to determine ability to pay fines and fees. For a court to have an informed and well-rounded understanding of a defendant’s financial status, it must present him with the opportunity to answer any questions about expenses or debts and to explain circumstances that a financial disclosure form may not accurately capture. Courts ought to be informed of, among other things, a defendant’s assets, employment prospects, level of education, earning capacity, and the other burdens that might result from incarceration.20 While providing a financial disclosure form in lieu of a hearing may be efficient in its ability to solicit information without expending too many of the court’s resources, this alone may not ensure the due process required by the Constitution.

At the same time, while it would be ideal to provide every defendant who fails to pay a fee or fine the opportunity to explain his situation in a hearing, such a solution is not realistic with the present resource constraints many courts face. Financial disclosure forms may be the closest a court can get to the inquiry Bearden requires, and if that is the case, it is imperative that these forms solicit as much information as possible and offer the defendant an opportunity to claim indigency and to request a hearing. From there, reviewing judges will have to exercise discretion in determining what constitutes willful nonpayment and what does not.

The Turner Court emphasized that the example procedural safeguards would be most effective “if employed together.”21 Courts should therefore strive to offer hybrid inquiries to defendants by employing both “a form (or the equivalent) to elicit relevant financial information” and an in-person “opportunity … to respond to statements and questions about his financial status.”22 It is crucial that defendants are aware that their inability to pay may jeopardize their liberty, and it is equally important that courts are certain about defendants’ financial statuses before sentencing them to a period of incarceration. In designing forms, hearings, or both, courts should look to models like the Federal Sentencing Guidelines, which require sentencing courts to consider factors including, but not limited to, a defendant’s “ability to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources,” the burden the fine imposes on the defendant and his family, and “any collateral consequences of conviction.”23 Another useful resource is a bench card put out by the Conference of Chief Justices and the Conference of State Court Administrators, in a joint effort with the National Task Force on Fines, Fees and Bail Practices.24 The bench card details the constitutional principles that prohibit incarcerating individuals for their inability to pay fees or fines and offers concrete examples of what courts should consider about defendants, what a meaningful opportunity to respond looks like, and what alternatives to incarceration a court might employ.

Absent a clear indication that the defendant willfully refused to pay, courts must inquire into the “sufficient bona fide efforts” a defendant makes “to seek employment or borrow money in order to pay the fine or restitution.”25 Where an individual does everything in his power to pay his fines and court fees and is still unable to, he has not “willfully” refused to pay and therefore should be incarcerated for his indigence without further inquiry.26 In this case, courts should consider alternative measures to incarceration.

When courts consider whether or not to incarcerate an individual who, at no fault of his own, is unable to pay the fees or fines he owes, they must ask whether imprisonment is appropriate to accomplish the State’s goals of punishment and deterrence.27 In making this determination, courts should take into account the individual’s “entire background,” including employment history and financial resources.28 Most importantly, courts should seriously acknowledge the negative, counterintuitive effects of incarcerating an individual who, despite his best efforts, cannot pay his fees and fines. Imprisoning that individual will not make the fees and fines he owes suddenly appear; if anything, it may force him to rely on illicit means to acquire the money he owes.29 Instead, courts should consider alternative measures to incarceration where a defendant could not pay a fine due to indigence, such as a reduced fine tailored to the defendant’s resources or, where appropriate and feasible, the completion of “alternative public service…that adequately serves the State’s goals of punishment and deterrence.”30

Incarcerating indigent individuals keeps them out of the workforce, out of the local economy, and away from their families. In short, it hurts all parties involved while helping no one. According to Lauren-Brooke Eisen, senior counsel at the Brennan Center for Justice, an estimated ten million people in the United States owe $50 billion in criminal justice debt.31 And 80 to 90 percent of individuals in the criminal justice system are indigent.32 These individuals often leave jail or prison only to be shackled by the debilitating collateral consequences of incarceration, such as difficulty finding jobs, housing, and treatment for addiction.33 Insofar as our current criminal justice system largely affects poor individuals and subsequently deprives them of the ability to effectively reenter society, incarcerating them for failing to pay off fees or fines is not only bad policy—it is inhumane.

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The words engraved on the front of the United States Supreme Court— “equal justice under law”34 —must apply to all not just in theory, but also in practice. Courts must not abdicate their roles as just and informed decisionmakers, especially not where an individual’s liberty interests are at stake solely because of his socioeconomic status. Instead, courts must be guided by the Supreme Court’s instructions in Bearden. Defendants must not be incarcerated for failing to pay fees or fines as a result of their indigency. The Fourteenth Amendment guarantees all defendants—rich and poor—equal protection and due process, and courts must insure they are equipped to uphold these guarantees.

* Leah Room is a 3L at New York University School of Law. This piece is a commentary on the 2018 problem at the Herbert Wechsler National Criminal Moot Court Competition, hosted by University of Buffalo School of Law. There were two issues presented in the problem. This Contribution is restricted to the issue concerning whether it was constitutional to incarcerate an individual for failure to pay traffic fines and child support, given that he could not afford to pay these costs but did maintain a certain income and assets.
2. See Bearden v. Georgia, 461 U.S. 660, 667-68 (1983) (finding that imprisoning a probationer because he is indigent and cannot pay fines or restitution is “contrary to the fundamental fairness” the Fourteenth Amendment requires); Tate v. Short, 401 U.S. 395, 397, 399 (1971) (finding that imprisoning an individual who is too poor to pay fines for offenses punishable by fines only constitutes invidious discrimination that contravenes the Fourteenth Amendment’s Equal Protection guarantee); Williams v. Illinois, 399 U.S. 235, 240-41 (1970) (finding that the Fourteenth Amendment’s Equal Protection Clause requires that the statutory ceiling for any substantive offense be constant for all defendants, regardless of ability to pay fines).
3. See Bearden, 461 U.S. at 667-68 (“[I]f the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.”); Tate, 401 U.S. at 397, 399 (holding that conversion of a fine into a jail term solely due to defendant’s indigence is unconstitutional) ; Williams, 399 U.S. at 240-41 (when additional imprisonment “results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay”).
4. Bearden, 461 U.S. at 667-68.
5. Id. at 662-63.
6. Id.
7. Id. at 672.
8. Id. at 672-73.
9. Id. at 665 (“Due process and equal protection principles converge in the Court’s analysis in these cases.”).
10. See Tate v. Short, 401 U.S. 395, 397 (1971).
11. Bearden, 461 U.S. at 666 n.8.
12. Id. at 672-73; see also Alkire v. Irving, 330 F.3d 802, 816 (6th Cir. 2003) (“Thus, ‘fundamental fairness’ requires that a court inquire into an individual’s reasons for failing to pay a fine or courts costs.”) (quoting Bearden, 461 U.S. at 672).
13. Turner v. Rogers, 564 U.S. 431, 449 (2011).
14. Id. at 447-49.
15. Id. at 447-48.
16. Id. at 444-45 (“As relevant here those factors include (1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’” (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
17. Id. at 445 (“Given the importance of the interest at stake, it is obviously important to ensure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt …  reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.”) (internal citations omitted).
18. Id. at 448.
19. In a Dear Colleague Letter issued by the Department of Justice in 2016, the Civil Rights Division and Office of Access to Justice interpreted Bearden and Turner as creating an “affirmative duty” for local and state courts to inquire sua sponte into defendants’ ability to pay prior to incarcerating them. Dear Colleague Letter from Vanita Gupta, Principal Deputy Assistant Att’y Gen., Civil Rights Div., and Lisa Foster, Dir., Office for Access to Justice (Mar. 14, 2016), (hereinafter “Dear Colleague Letter”). That interpretation is consistent with that of federal courts, including the Second, Fifth, Sixth, Eighth, and Ninth Circuits. See United States v. Scales, 639 Fed. Appx. 233, 240-41 (5th Cir. 2016) (noting that enforcing a condition of supervised release that defendant pay restitution requires the court to seek proof of ability to pay); Alkire, 330 F.3d at 819 (noting that a statutory provision requiring a hearing to determine if failure to pay resulted from bad faith or indigency was “precisely what the Fourteenth Amendment requires” under Bearden); United States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993) (interpreting Bearden to mean that courts have an obligation to inquire into why defendants fail to pay); Martin v. Solem, 801 F.2d 324, 332 (8th Cir. 1986) (finding a trial court’s determination that a defendant was “not totally disabled” and “had some ability to work” and that “odd jobs” might be available to him “cannot meet the Bearden test”). See also Cain v. City of New Orleans, NO. 15-4479, SECTION: R(2), 2016 U.S. Dist. LEXIS 67419, at 15-17 (E.D. La. May 23, 2016) (“No court has held that indigent debtors are required to initiate proceedings to request a modification of their financial obligations or otherwise risk imprisonment for nonpayment.”); cf. United States v. Parks, 89 F.3d 570, 572-73 (9th Cir. 1996) (holding that, under Bearden, a court’s rejection without explanation of defendant’s claim that he is unable to immediately pay fines and restitution was a failure to make the required inquiry).
20. See, e.g., United States v. Walker, 900 F.2d 1201, 1206-07 (8th Cir. 1990) (vacating a $2 million fine where the court failed to consider defendant’s total assets, lack of employment or higher education degree, earning capacity, and burden imposed by the fine); see also United States v. Seminole, 882 F.2d 441, 443-44 (9th Cir. 1989) (vacating $5,000 fine and remanding for determination of whether defendant had the ability to pay because the record did not reflect such an inquiry was made).
21. Turner, 564 U.S. at 447-48.
22. Id.
23. 18 U.S.C. app. § 5E1.2(d).
24. “Lawful Collection of Legal Financial Obligations,” National Task Force on Fines, Fees and Bail Practices (2017),
25. Bearden, 461 U.S. at 668-69.
26. Id.
27. Id. at 669-70 (citing Williams v. New York, 337 U.S. 241, 250, & n.15 (1949)).
28. Id.; Model Penal Code § 7.02(4) (Am. Law Inst., Proposed Official Draft 2018) (“In determining the amount and method of payment of a fine, the Court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”).
29. See Bearden, 461 U.S. at 670-71. (“Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming. Indeed, such a policy may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay in order to avoid revocation.”).
30. Id. at 672. See also United States v. Stevens, 986 F.2d 283, 284 (8th Cir. 1993) (citing Bearden, 461 U.S. at 672-73) (vacating and remanding defendant’s imprisonment for failure to pay restitution obligations because the record provided no explanation of the district judge’s reasoning or “indicate why alternatives to imprisonment would be insufficient”).
31. Krystal Clear: Supreme Court loophole brings back debtors’ prisons, MSNBC (June 3, 2015),
32. Alicia Bannon et al., Brennan Center for Justice Criminal Justice Debt: A Barrier to Reentry 4-5 (2010),
33. Id.
34. About the Court: Building Features, Supreme Court of the United States, (last visited May 17, 2018).