Washington Court Can’t Impose Discretionary Cost on Indigent Defendant

Over the past several years, there has been increasing focus on how the imposition of fees and costs on criminal defendants can disproportionately affect poor and disadvantaged individuals.  Washington drew national attention for the way its courts imposed fees and costs on defendants, and particularly the 12% annual interest rate that was applicable to fees and costs.  Last year, Washington passed an act to address some of the issues with the legal financial obligations for criminal defendants.  The act eliminated interest for all legal financial obligations except restitution. Although Washington criminal courts may still require defendants to pay certain costs, a court may not order an indigent defendant to pay costs.  Even if a defendant is not indigent, the court must still consider his or her financial resources and the burden payment of the costs will create in determining the amount of costs and the method of payment.  (RCW 10.01.160.)  A defendant is indigent if he or she receives certain types of public assistance, is involuntarily committed, or has an annual net income of 125% or less of the federal poverty level.  (RCW 10.101.010.)  Additionally, under the new act, a court can no longer sanction a defendant with contempt based on a failure to pay unless it finds the defendant’s failure to pay is willful.  A willful failure to pay occurs when the defendant has the ability to pay but refuses to do so.  The law identifies the factors the court must consider in determining if the defendant has the current ability to pay.  (RCW 10.01.180.)

An indigent defendant recently challenged community supervision costs that were imposed upon him by the trial court.  After the defendant pleaded guilty to first degree assault and second degree robbery, the trial court waived all non-mandatory fees and costs and stated the defendant did not have financial resources.  The judgment and sentence, however, required the defendant to pay supervision fees.

The defendant appealed, arguing the community supervision fee was a non-mandatory cost that should not have been imposed by the trial court in light of his indigence.

The state argued the supervision fee was a fee and not a cost.  Washington Appeals Courts have previously held, however, that community supervision costs are discretionary legal financial obligations.  Pursuant to RCW 10.01.160, a court may not impose a discretionary cost on an indigent defendant.  The appeals court therefore remanded the case for the trial court to strike the supervision cost.

This case shows that an indigent defendant cannot be required to pay discretionary costs, including community supervision costs.  Although the change in laws will not solve all of the issues around legal financial obligations in Washington, it may at least provide some relief to certain defendants, such as the one in this case.

If you are facing criminal charges, an experienced Washington criminal defense attorney can fight to protect your rights. The attorneys at Blair & Kim, PLLC, have extensive experience and a thorough knowledge of Washington criminal law.   Schedule an appointment to discuss your case with our Washington criminal defense attorneys by calling (206) 622-6562.

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