(Color)Blind Reform: How Ability-to-Pay Determinations are Inadequate to Transform a Racialized System of Penal Debt

April 2019
By Theresa Zhen

This report draws on a 50-state survey of codified ability-to-pay standards and describes how ability-to-pay determinations require invasive inquiries into a defendant’s financial resources, apply underinclusive criteria to define “indigency,” and invoke implicit or explicit racial biases. The author also argues that ability-to-pay determinations redistribute resources from Black families to state governments in a regressive taxation scheme that exacerbates the racial economic divide.

Findings:

• Many states authorize invasive techniques to investigate a defendant’s financial resources. 
• Many states apply underinclusive criteria to determine indigence. 
• There is a substantial risk of subjective, and at times racially biased, “willfulness” determinations to root out those who intentionally withhold payment.