Module 2. Ability to Pay: Timing

In all situations, the U.S. Constitution prohibits incarceration for failure to pay a fine or fee unless that failure was willful.³ Therefore, courts must conduct an ability to pay assessment before incarcerating someone as a sanction for failure to pay a fine or fee.

However, ability to pay determinations can be made at other points in a case as well. At least 12 states require courts to conduct an ability to pay determination when fines or fees are imposed.⁴

Flexibility is key in both the timing of the determination and what judges consider when making the assessment.