Fines, Fees, and Bail in State Courts

Multiple state courts have recently addressed the fairness of the fines, fees, and bail regularly assessed against criminal defendants. These cases involve challenges to the disproportionate impact such financial obligations have on the poor and the potential for bias they create as revenue sources for courts. The cases come at a time when reform efforts face headwinds, particularly as states fear budget strain from federal cuts.

Criminal defendants encounter financial obligations in multiple forms. Convicted defendants’ sentences commonly include fines, fees, and restitution. Fines are payments in cash or in kind designed to punish the defendant and to deter others. Fees, by contrast, are typically unrelated to the particular offense and instead intended, as the Brennan Center has explained, “to shift the costs of the criminal justice system from taxpayers to defendants.” Example costs include expenditures for jury and clerk fees, pretrial supervision, court-appointed counsel, and psychological evaluations. Particularly when a crime involves a monetary or property loss, a convicted defendant may also be required to pay the victim restitution, an amount meant to restore the loss.

Other financial obligations include bail — paid in cash or secured by property — which allows an arrested person to obtain pretrial release from jail. While that amount is refunded if the arrestee appears for trial, the unaffordability of posting bail can leave people stuck in prison before trial.

Defendants unable to meet some or all of these court-imposed financial obligations may also incur additional fees and consequences, such as suspension of a driver’s license, which can lead to loss of a job and, ultimately, to a cycle of debt and poverty.

Imposing an Unaffordable Obligation

In the last nine months, state supreme courts in California, Massachusetts, Michigan, Minnesota, Montana, and Washington have considered, with mixed results, whether their respective state constitutions protect defendants from imposition of financial obligations they cannot pay.

The U.S. Supreme Court has interpreted the federal Constitution, including its due process and equal protection guarantees and prohibition on “excessive fines,” to provide guardrails related to financial obligations, but it has not directly addressed this question. 

In Bearden v. Georgia in 1983, the Court held that it violates due process and equal protection principles for defendants who make “bona fide efforts” to pay court-ordered fines or restitution to be imprisoned or to have their probation revoked simply because they are unable to pay. Similarly, 1956’s Griffin v. Illinois and its progeny provide that these principles prevent states from conditioning the ability to pursue an appeal or habeas petition on the payment of court-imposed costs, such as a filing fee. In 1998, the Court held in United States v. Bajakajian that cash or in kind payments that constitute punishment for an offense violate the Eighth Amendment’s Excessive Fines Clause if they are “grossly disproportionate” to the gravity of the offense. The Court focused its proportionality analysis on the defendant’s culpability and harm caused but mentioned in a footnote that the defendant had not argued his wealth was relevant. Finally, in 2019’s Timbs v. Indiana, the Court ruled that the Excessive Fines Clause is sufficiently rooted in the nation’s history to be incorporated in the Due Process Clause and applied against the states. The Court relied, in part, on the Magna Carta’s requirement that fines “not be so large as to deprive an offender of his livelihood” and on concerns, contemporaneous with the 14th Amendment, that southern states were arresting formerly enslaved people for “dubious offenses,” imposing fines they were unable to pay, and forcing them into involuntary labor as a consequence of non-payment. But the Court also noted that Bajakajian did not consider whether a defendant’s wealth is a factor in judging excessiveness.

Without a definitive statement from the Supreme Court under the federal Constitution, recent state high court decisions provide varying guidance as to whether a specific financial obligation, or the cumulative effects of multiple ones, violate analogous state constitutional clauses.

In December, the California Supreme Court in People v. Kopp held that the state’s Excessive Fines Clause was the “proper vehicle” for defendants challenging imposition of a fine, including for unaffordability. The court rejected lower court decisions finding a “due process requirement to hold an ability to pay hearing before imposing every punitive fine.” Both the majority and a concurrence by Justice Goodwin Liu stated that the proportionality analysis under the Excessive Fines Clause included considering a defendant’s ability to pay. The justices did not elaborate on that analysis, however, because the high court ultimately remanded the case to allow the defendant to bring a challenge under the clause. Liu also clarified that the majority opinion would not foreclose the claim that the cumulative impact of a fine coupled with other court-ordered monetary obligations violated due process or equal protection principles, particularly when the collective obligations created “‘cascading consequences’ that trap the defendant in debt.”

Kopp also held that the defendant’s separate challenge to certain assessments for court operations and facilities implicated equal protection principles. Because California law allows for waiver of similar fees by indigent civil parties, the court concluded, statutes that provide no option to avoid such costs for poor criminal defendants violate equal protection.

Similarly, in March, the Montana Supreme Court in State v. Cole reaffirmed that a defendant’s “financial resources and the nature of the burden imposed by payment of the fine” were “factors important” to assessing whether a fine was constitutionally proportional under that state’s Excessive Fines Clause. The court overruled, however, a 2024 precedent that found a state law setting a mandatory minimum fine facially unconstitutional. Because Montana’s statutory scheme obligates judges to suspend enforcement of any portion of a fine a defendant cannot afford, the 4–3 majority said, imposition of the mandatory fine in the first place would not violate the bar against excessive fines “in all applications.” But the justices suggested that an as-applied challenge would be available if a judge failed to consider the defendant’s ability to pay or to suspend an unaffordable portion. The three dissenting justices disagreed that suspending a fine could cure such an initial violation of the Excessive Fines Clause. Since March, the Montana high court, splitting along the same lines, has applied Cole to resolve several similar challenges.

Other state high court decisions leave the question open. The Michigan Supreme Court was set to hear a case raising whether a state law allowing trial judges to impose on criminal defendants the cost of their court-provided lawyer could be applied to indigent defendants. At issue was whether the state’s Excessive Fines Clause extended to that fee and required assessing ability to pay. But in March, after the prosecution agreed to vacatur of the fee assessed on the defendant, who had been homeless, the court directed the fee to be undone without analysis of these issues.

Additionally, the Massachusetts Supreme Judicial Court in August’s Raftery v. State Board of Retirement held that a statute requiring state employees convicted of certain crimes to forfeit their pension benefits did not violate the state’s Excessive Fines Clause. The court adopted Bajakajian’s disproportionality criteria, which focused on the nature and harm of the defendant’s offense. The court emphasized that it may “further refine” its analysis and expressly noted that it left unresolved the question of whether the excessiveness inquiry should consider if a fine “threatens a person’s livelihood” or leaves them “destitute.”

In December’s Thigpen v. Best Home Care, the Minnesota Supreme Court expressly took up that issue, but the 5–2 majority declined to resolve it. The majority held that the state’s penalty for unemployment benefit misrepresentations — including a fine of 40 percent of any overpayment and ineligibility to receive future benefits for up to 10 years — did not violate Minnesota’s Excessive Fines Clause. The court first considered whether the ineligibility penalty should be included in the excessive fines analysis because it made the imposed fine “more punishing, more difficult to pay back, and more burdensome to the poor.”

Historical evidence cited in Timbs, the court noted, suggested that non-monetary sanctions could be relevant to the excessiveness inquiry if the sanction “helps ensnare the individual in a cycle of debt by hindering their ability to pay the monetary fine.” But the majority declined to decide both that issue and the defendant’s argument that a person’s ability-to-pay should be part of the proportionality analysis. Based on the lack of factual support offered regarding the defendant’s inability to pay, the court said neither issue would affect the outcome. Two justices strenuously dissented, writing that the court was wrong not to address the question of financial resources and noting that earlier decisions from other states’ high courts — Colorado, Indiana, Pennsylvania, Tennessee, Utah, and Washington — considered that factor in certain contexts.

Relying on that Washington Supreme Court decision, numerous advocacy groups asked that court last year to hold that another form of financial obligation — restitution — is subject to the state’s Excessive Fines Clause and its imposition must account for a defendant’s ability to pay. They argued that restitution is categorically punitive, given the financial burden it creates for the vast majority of defendants, who are low-income. In November, however, the Washington high court in State v. Ellis did not resolve these larger questions, holding only that the specific defendant’s restitution, representing a portion of the victim’s funeral expenses, was compensatory, not punitive.

Enforcing an Obligation that Becomes Out of Reach

The Iowa Supreme Court recently took up a related question: What consequences are constitutionally permissible when a defendant becomes unable to pay a previously imposed financial obligation?

The court held in March in State v. Hidlebaugh that, where a prison sentence resulted in part from a defendant’s failure to meet a financial obligation despite good faith efforts, the sentence violated equal protection and due process principles. The defendant, whose conviction for failing to update his address in the state’s sex offender registry stemmed from his difficulty finding consistent housing, had entered into a plea agreement providing that prosecutors would recommend probation — instead of prison — if he had a contract to buy a home by time of sentencing. Despite working a better-paying job and extra hours, he was unable to secure enough funds, so the judge sentenced him to prison. On appeal, a 4–3 majority of the state high court relied on statements in Bearden that a person cannot be imprisoned solely because he lacks the resources to pay a fine or restitution. That the sentencing judge also considered his criminal history was no excuse, the majority said, as the defendant was “entitled to be sentenced without consideration of an improper factor [ability-to-pay].”

Retaining Obligations When a Conviction Is Reversed or Charge Dropped

Washington and Iowa’s supreme courts recently addressed the implications for fines and fees when a conviction is overturned or charges are dismissed. At issue in both cases were potential extensions of Nelson v. Colorado, the U.S. Supreme Court’s 2017 ruling that the government must refund money a defendant paid upon conviction — including fees, court costs, and restitution — if that conviction is invalidated. For the state to “presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions,” the court stated, violated the federal Due Process Clause.

In Washington, a court may permit a defendant to perform community service at the equivalent of minimum wage to satisfy a financial obligation if paying cash would cause hardship. In State v. Danielson, defendants who did service work and then later had their convictions vacated argued they had a right under Nelson to be reimbursed for their labor. In December, the Washington high court disagreed. The 5–4 majority held the right to a refund recognized in Nelson was limited to monetary payments, not labor in lieu of payment. There was no disparate treatment based on wealth, the court continued, because the option to perform community service was not explicitly limited to the poor and the equal protection analysis required more than simply inferring that those who chose that option were of lower economic status. A dissent by Justice Sal Mungia, joined by two others, criticized the majority for ignoring the reality that those who have the means to pay in cash choose to do so. “I cannot overlook the inherent unfairness of disregarding the economic value of community service,” wrote then-Justice Mary Yu in a separate dissent.

In January, the Iowa Supreme Court ruled that a court may not order a defendant to pay court costs pursuant to a plea agreement when the underlying charges are dismissed. The majority in State v. Pagliai found it unnecessary to reach a constitutional challenge because no state statute permitted assessment of costs in dismissed criminal cases, and no contract, waiver, or estoppel principles related to the plea bargain could cure an unauthorized disposition. Justice Matthew McDermott concurred, writing that the court should have resolved the case on federal and state constitutional due process grounds under Nelson. “Imposing court costs on a defendant whose charges were dismissed,” he explained, “is functionally identical to imposing a punishment on a person who is, by law, presumed innocent.”

In response to Pagliai, Iowa passed a statute in April authorizing courts to order costs in dismissed cases.

Conflicting Interests for Judges in Assessing Court Costs

The Michigan Supreme Court will consider whether allowing a court to impose its operation costs as part of a sentence creates a potential for bias that violates defendants’ state or federal due process rights.

In ordering oral argument in People v. Ormsbee, the Michigan justices directed the parties to address U.S. Supreme Court rulings that a judge’s involvement in proceedings — as the alleged victim of a contempt trial, as the district attorney involved in sentencing, or as recipient of a party’s campaign donation — created a “potential for bias” or “objective risk of actual bias” that violated due process. The defendant also raises 1927’s Tumey v. Ohio and progeny, in which the U.S. Supreme Court found it unconstitutional for mayors sitting as judges to impose fines if they oversaw village finances and the fines substantially contributed to those funds. Timbs additionally noted the “scarcely hypothetical” concern for bias created by fines and fees that provide state revenue as a rationale for scrutiny under the Excessive Fines Clause.

Two years before Ormsbee, current Michigan Chief Justice Megan Cavanagh dissented from the court’s refusal to review a predecessor challenge. She recognized the potential for bias created by Michigan’s law permitting trial courts to impose their costs, including salaries and operations expenses, on defendants. She would have held the law violated due process based on Tumey, citing a state report that trial courts generate 26 percent of their own funding and that noted the “real or perceived conflict of interest between a judge’s impartiality and the obligation to use the courts to generate revenue.” An amicus brief from a group of Michigan district judges also acknowledged judges have felt “pressured to raise revenue” and have a “pecuniary interest in the outcome of their criminal cases.”

Imposing Unaffordable Bail

Finally, state courts in California, Georgia, and Nevada have weighed the constitutionality of pretrial detention that results from an arrested person’s inability to post bail, which has the same effect as an explicit detention order.

The U.S. Supreme Court has decided few bail cases in recent decades and has never held that a court must consider an arrestee’s ability to pay. According to the Court’s seminal case, U.S. v. Salerno in 1987, the Eighth Amendment provides that “excessive bail shall not be required” but “says noting about whether bail shall be available at all.” When bail is offered, Salerno suggested, excessiveness is judged against the government’s interests — securing appearance at trial, public safety — not a defendant’s financial means. Salerno did recognize that the Due Process Clause separately ensures pretrial detention is “the carefully limited exception;” federal appellate and state supreme courts that have reached ability-to-pay questions have looked to that clause and the Equal Protection Clause.  

Most state constitutions provide a limited affirmative right to release on bail. An analysis by the National Conference of State Legislators describes the varying forms these take.

On that front, the California Supreme Court in late April’s In re Kowalczyk unanimously affirmed that the state constitution guaranteed a right to pretrial release that generally required courts to set any bail at a level “reasonably attainable” for the arrestee. The court also recognized only express exceptions to that right. Allowing a court effectively to deny release by setting unaffordable bail would render those exceptions meaningless, the high court reasoned. It would also conflict with a 2021 ruling that, analogizing to Bearden, found pretrial detention solely because an arrestee lacked resources violated equal protection and due process. Additionally, the court said California’s prohibition on excessive bail plays a part in requiring courts, if they deem monetary bail necessary, to reasonably account for an arrestee’s financial circumstances.

Pending before Georgia’s intermediate court is a detainee class action alleging that a state law increasing the number of offenses requiring upfront bail payment for release violates Georgia’s due process clause by making “the traditional right to pretrial liberty the exception for indigent people” and by foreclosing consideration of less restrictive alternatives. A lower court found the claims in Coronell v. Georgia nonviable because other procedural safeguards minimized the risk of erroneous detention, and the state’s interests in assuring presence at trial justified restricting pretrial liberty. Alternatively, the lower court dismissed the case as moot because the named plaintiffs were released shortly after filing. The Georgia Supreme Court in December declined to hear the merits dismissal while the mootness ruling — now under review in the court of appeals — stands.

Finally, the Nevada Supreme Court heard arguments this week in City of Henderson v. Armendarez, which challenges legislation responding to the court’s 2020 ruling that arrestees must receive a prompt, individualized hearing on whether bail is necessary and in what amount, taking account of financial ability. The city argues that the law — which requires a hearing within 48 hours of arrest — violates crime victims’ rights and separation of powers because the short timeline inhibits prosecutors’ ability to obtain victim input and courts’ preparation of pretrial risk assessments. An intermediate court upheld the law.

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With ongoing cases, mixed results, and barriers to defendants bringing challenges, it remains to be seen how successful state court litigation can be as an alternative to policy reform for excessive fines, fees, and bail.

Sarah Kessler is an advisor and contributing editor to State Court Report.

Suggested Citation: Sarah Kessler, Fines, Fees, and Bail in State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/fines-fees-and-bail-state-courts