8.4Imprisonment for Failure to Pay Court-Ordered Financial Obligations: Determination of Ability to Pay
“The court shall not sentence a defendant to a term of incarceration, nor revoke probation, for failure to comply with an order to pay money unless the court finds, on the record, that the defendant is able to comply with the order without manifest hardship and that the defendant has not made a good-faith effort to comply with the order.” MCR 6.425(D)(3)(a). See also MCL 769.1k(10) (“A defendant must not be imprisoned, jailed, or incarcerated for the nonpayment of costs ordered under this section unless the court determines that the defendant has the resources to pay the ordered costs and has not made a good-faith effort to do so.”).
The court is required to determine a defendant’s ability to pay in the following types of cases where incarceration or probation revocation is possible:
•Misdemeanor cases. MCR 6.001(B); MCR 6.425(D).
•District court proceedings. MCR 6.610(G)(2) (requiring district courts to comply with MCR 6.425(D)(3)).
•Probation violation hearings in felony and misdemeanor cases. MCR 3.944(F); MCR 3.956(C); MCR 6.001(B); MCR 6.445(G); MCR 6.933(J).
•Contempt proceedings. MCR 3.606(F); MCR 3.928(D).
•Juvenile proceedings, including the juvenile and/or the parents. MCR 3.928(D) (contempt); MCR 3.944(F) (probation violation); MCR 3.956(C) (review hearing); MCR 6.933(J) (juvenile probation revocation).
A.Determining Manifest Hardship
“The court shall consider the following criteria in determining manifest hardship:
(i) Defendant’s employment status and history.
(ii) Defendant’s employability and earning ability.
(iii) The willfulness of the defendant’s failure to pay.
(iv) Defendant’s financial resources.
(v) Defendant’s basic living expenses including but not limited to food, shelter, clothing, necessary medical expenses, or child support.
(vi) Any other special circumstances that may have bearing on the defendant’s ability to pay.” MCR 6.425(D)(3)(c).
“If the court finds that the defendant is unable to comply with an order to pay money without manifest hardship, the court may impose a payment alternative, such as a payment plan, modification of any existing payment plan, or waiver of part or all of the amount of money owed to the extent permitted by law.” MCR 6.425(D)(3)(b).
See the Michigan Judicial Institute’s Ability to Pay Benchcard for a summary of the court’s obligations regarding determining a defendant’s ability to pay.
See also the SCAO Ability to Pay Workgroup’s Tools and Guidance for Determining and Addressing an Obligor’s Ability to Pay, April 20, 2015, and the SCAO Memorandum, Ability to Pay Court Rule Amendments, August 16, 2016, for more information on determining a defendant’s ability to pay court-ordered financial obligations.