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.

* * * * *

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Bear­den paid in part but sub­se­quent­ly lost his job and was unable to com­plete his pay­ments, so his pro­ba­tion was revoked and he was impris­oned.6 Bear­den appealed, argu­ing this impris­on­ment for his inabil­i­ty to pay the fines was a vio­la­tion of his Equal Pro­tec­tion and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

* * * * *

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.

* * * * *

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).