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Fines — Attorney Fees, Distinguished From

State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate


¶20      Fines and attorney fee obligations involve different State purposes, and therefore a different constitutional analysis. When analyzing the constitutionality of a fee recoupment statute, the court is to consider, among other things, the rationality of the connection between legislative means and purpose and the existence of alternative means for effectuating the purpose.  See Bearden, 461 U.S. at 667. The State’s purpose in collecting a fine is not the same as its purpose in collecting an attorney fee obligation. A fine is a penalty for wrongdoing, and indigency is not a license to break the law with impunity.  Id. at 669. When a defendant cannot pay a fine, the State still has an interest in deterring the prohibited conduct and levying some punishment.  Id. at 672. Attorney fees, on the other hand, are a debt owed to the State. The State’s purpose is to collect that debt.  James v. Strange, 407 U.S. 128, 141 (1972). Punishment will not help the State collect a debt from a defendant who truly lacks the resources to pay.

Therefore, the procedure for raising inability to pay a fine, see State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 289, 201 N.W.2d 778 (1972) (hearing on ability to pay fine required only upon affirmative request), is inapplicable, ¶19. Instead, the court may not order commitment for failure to pay attorney fees without finding ability to pay, ¶24.


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