Gen. 183] 183

CRIMINAL LAW

CONSTITUTIONAL LAW – CONSTITUTIONAL AND STATUTORY

LIMITS ON CONFINEMENT OF A CRIMINAL DEFENDANT FOR

FAILURE TO PAY FINE

August 3, 2001

Sheriff Richard J. Voorhaar

In your capacity as warden of the St. Mary’s County Detention

Facility, you have requested our opinion as to the constitutionality of

continued commitment of an inmate who has completed the

specified period of incarceration but failed to pay a fine, when the

sentence appears to make payment of the fine a condition of the

inmate’s release from custody. 

State law provides that a court may sentence a convicted

defendant who has failed to pay a fine to an additional period of

confinement to “work off” the fine. However, under both State law

and the federal Constitution, the court must first assess the

defendant’s ability to pay the fine by inquiring into the defendant’s

family and financial situation. Any additional period of

incarceration imposed for failure to pay the fine must be within

statutory limits and may not, in any event, exceed 90 days. Finally,

the total period of incarceration imposed on an indigent defendant

may not exceed the statutory maximum for the underlying offense.

If, in a particular case, you are concerned that a sentence may

not comply with these statutory and constitutional parameters, we

recommend that you write the court, with copies to the prosecutor

and defense attorney, setting forth the basis for your concern and

await further direction from the court. 

I

Incarceration in Lieu of Payment of Fine

Under Maryland law, if a defendant in a criminal case fails to

pay a fine that is part of the defendant’s sentence, the court may

require the defendant to serve a period of incarceration in lieu of
184 [86 Op. Att’y

Willliams was combined for argument with a case challenging the 1

Maryland statute that then governed incarceration for nonpayment of a

fine. The Court ultimately vacated the Maryland case in light of its

decision in Williams, and the passage by the General Assembly of

legislation establishing procedural and substantive limits on the

imposition of jail time in default of payment of a fine. See Morris v.

Schoonfield, 399 U.S. 508 (1970). The revised Maryland statute is

discussed in Part I.B of this opinion.

payment of the fine. However, the federal Constitution, as well as

a State statute, set procedural and substantive limits on this option.

A. Constitutional Limits 

The federal Constitution prohibits a state from imposing a fine

as part of a criminal sentence and then automatically converting the

fine into a jail term, when the defendant’s failure to pay the fine is

attributable solely to indigency. The Supreme Court established this

principle in a series of decisions, beginning 30 years ago. 

In Williams v. Illinois, 399 U.S. 235 (1970), the Supreme 1

Court held that the continued incarceration of a defendant for

nonpayment of a fine violates the Equal Protection Clause of the

United States Constitution if the aggregate period of incarceration

exceeds the statutory maximum for the underlying offense and the

defendant’s failure to pay the fine is involuntary. In that case, a

defendant convicted of petty theft received the maximum sentence

under Illinois law for that offense: one year imprisonment, a $500

fine, and $5 in court costs. In accordance with an Illinois statute, the

judgment also directed that, if the defendant failed to pay the fine or

costs, he was to “work off” the unpaid amount through continued

incarceration at the rate of $5 per day. Thus, the sentence would

have required the defendant to serve 101 days beyond the statutory

maximum if he failed to pay the fine and court costs. 

The defendant challenged the sentence, alleging that he was

indigent and unable to satisfy the monetary portion of the sentence.

The Supreme Court observed that the custom of imprisoning a

convicted defendant for nonpayment of a fine was of ancient origin.

399 U.S. at 239-40. However, the Court found that the Illinois

statute worked an “invidious discrimination” against an indigent

defendant, as only a convicted person with access to funds could

avoid the increased punishment. In effect, the state had established

different maximum periods of incarceration based on a defendant’s
Gen. 183] 185

ability to pay. Id. at 242. The Court held that the Equal Protection

Clause requires that the statutory ceiling on imprisonment for any

substantive offense be the same for all defendants irrespective of

economic status. Id. at 244. Accordingly, the Court concluded that

“an indigent criminal defendant may not be imprisoned in default of

payment of a fine beyond the maximum authorized by the statute

regulating the substantive offense.” Id. at 241.

The holding in Williams would literally apply only in a case in

which the aggregate period of incarceration exceeds the statutory

maximum. However, one year later, the Court extended the

principle announced in Williams, to forbid the automatic conversion

of an unpaid fine to incarceration, regardless of whether the fine was

originally accompanied by a jail term or whether the aggregate jail

term exceeded the statutory maximum. In Tate v. Short, 401 U.S.

395 (1971), the Court considered a case in which an indigent

defendant, who had failed to pay fines for non-jailable traffic

offenses, was imprisoned under a Texas statute that provided for

incarceration in lieu of an unpaid fine at the rate of $5 per day. The

Court concluded that the Texas statute suffered from the same

constitutional defect as the Illinois statute in Williams. It held that

“the Constitution prohibits the State from imposing a fine and then

automatically converting it into a jail term solely because the

defendant is indigent and cannot forthwith pay the fine in full.” 401

U.S. at 671.

Subsequently, in Bearden v. Georgia, 461 U.S. 660 (1983), the

Court reiterated the holdings in Williams and Tate, but analyzed the

issue of incarceration in lieu of payment from the perspective of the

Due Process Clause of the federal Constitution. In Bearden, an

indigent defendant on probation had partially paid a fine that was a

condition of his probation but, after being laid off from his job, was

without income or assets to pay the remainder of the fine on time.

A Georgia state court revoked the defendant’s probation and

sentenced him to serve the remainder of his term of probation in

prison. The Supreme Court held that a court could not revoke a

defendant’s probation for failure to pay a fine, without first finding

that the defendant was responsible for that failure or that alternative

forms of punishment would be inadequate to meet the state’s interest

in punishment and deterrence. The Court stated:

[I]n revocation proceedings for failure to pay

a fine or restitution, a sentencing court must

inquire into the reasons for the failure to pay.

If the probationer willfully refused to pay or
186 [86 Op. Att’y

failed to make sufficient bona fide efforts

legally to acquire the resources to pay, the

court may revoke probation and sentence the

defendant to imprisonment within the

authorized range of its sentencing authority.

If the probationer could not pay despite

sufficient bona fide efforts to acquire the

resources to do so, the court must consider

alternate measures of punishment other than

imprisonment. Only if alternate measures are

not adequate to meet the State’s interests in

punishment and deterrence may the court

imprison a probationer who has made

sufficient bona fide efforts to pay. To do

otherwise would deprive the probationer of his

conditional freedom simply because, through

no fault of his own, he cannot pay the fine.

Such a deprivation would be contrary to the

fundamental fairness required by the

Fourteenth Amendment.

461 U.S. at 672-73. 

Based on the principles outlined in the Supreme Court’s

decisions, the Court of Appeals of Maryland has overturned or

reduced prison sentences imposed on indigent defendants for failure

to pay restitution or court costs. Reddick v. State, 327 Md. 270, 608

A.2d 1246 (1992) (sentencing judge’s offer to reduce sentence by

five years if defendant paid restitution to victim’s family was

unconstitutional, since it subjected indigent defendant to

imprisonment for lack of resources); Smith v. State, 306 Md. 1, 506

A.2d 1165 (1986) (sentencing court violated due process when it

revoked defendant’s probation for failure to pay restitution without

making sufficient inquiry into defendant’s ability to pay); Turner v.

State, 307 Md. 618, 516 A.2d 579 (1986) (court abused discretion in

revoking probation of indigent defendant for failure to pay court

costs).

Thus, the Constitution places both procedural and substantive

limitations on a court’s power to incarcerate a criminal defendant in

lieu of payment of a fine. First, the court must inquire into the

reason why the defendant has failed to pay the fine. If the failure to

pay is attributable to indigency the court must also consider alternate

methods of punishment. If the court ultimately decides that an

additional period of incarceration is necessary to serve the interests
Gen. 183] 187

 A defendant may not be imprisoned for failure to pay court costs 2

imposed in a criminal case. Article 38, §4(c).

of deterrence and punishment, the aggregate period of incarceration

cannot exceed the maximum sentence for the underlying offense.

B. Statutory Parameters

A Maryland statute incorporates the constitutional principles

and sets some additional limits on the period of incarceration that

may be imposed in default of payment of a fine.

1. Article 38 

Under Annotated Code of Maryland, Article 38, §1, a

defendant who fails to pay a criminal fine “may be committed to jail

in accordance with §4 of this article until thence discharged by due

course of law.” 

Section 4 provides that a court may order a defendant to pay a

fine in its entirety at the time sentence is imposed, in specified

installments over a period of time, or as a condition of probation.

Article 38, 4(a). If a defendant fails to pay the fine, the court is first

to determine the reason for nonpayment. The statute provides:

If the defendant fails to pay the fine as

directed ... or if he is unable to pay the fine

and so represents upon application to the

court, the court, after inquiring into or making

such further investigation, if any, which it may

deem necessary with regard to the defendant’s

financial and family situation and the reasons

for nonpayment of the fine, including whether

such nonpayment was contumacious or was

due to indigency, [may enter an appropriate

order].

Article 38, §4(b). The statute provides several options, depending

on the results of this inquiry: modification of the sentence to any fine

that the court could have imposed initially ) for example, payment

in installments or as a condition of probation; reduction of the fine

to an amount that the defendant is able to pay; or imprisonment until

the fine – or a specified portion of it – is paid. Article 38, 4(b).2
188 [86 Op. Att’y

If the court elects to incarcerate the defendant for nonpayment,

that decision is subject to certain limitations. First, the court must

determine a specific period of incarceration that takes into account

“the defendant’s situation and means and ... his conduct with regard

to nonpayment of the fine....” Article 38, §4(b). Second, the statute

sets several limitations on the period of incarceration: 

(1) The period of incarceration may not

exceed one day for each $10 of the unpaid

fine.

(2) The period of incarceration imposed for

nonpayment of the fine may not exceed

one-third of the maximum period of

imprisonment provided by statute for the

offense.

(3) The period of incarceration may not

exceed 90 days.

(4) If imprisonment is not otherwise

authorized as part of a sentence for the

particular offense, the period of

incarceration may not exceed 15 days.

(5) If the defendant served a period of

incarceration for the same offense for

which the fine was imposed, the

aggregate of the original sentence of

incarceration and the term imposed for

nonpayment of the fine may not exceed

the maximum period of imprisonment

authorized for the particular offense.

Article 38, §4(b)(1)-(4). Service of a period of incarceration for

nonpayment of a fine relieves the defendant of any further payment

obligation. Article 38, §4(c) (State may collect criminal fine in same

manner as civil judgment, unless “discharged by ... service of

imprisonment in default of a fine”). 

2. Legislative History of §4

The current version of Article 38, §4 was designed, in part, to

satisfy the constitutional concerns outlined above. Prior to 1970, the

statute contained a formula for working off an unpaid fine through
Gen. 183] 189

 Until 1968, the formula was one day for each dollar of unpaid fine.

3

See Chapter 143, Laws of Maryland 1968.

The judgment in Morris was vacated by the Supreme Court in light 4

of its contemporaneous decision in Williams v. Illinois, and in light of the

General Assembly’s 1970 amendment to Article 38, §4. See footnote 1

above and accompanying text. 

service of a term of imprisonment: one day for every two dollars of

unpaid fine and costs. The statute also set staggered maximum 3

limits on the term: 30 days for a fine of $100 or less; 60 days for

fines between $100 and $500; and 90 days for fines exceeding $500.

Article 38, §4 (1965 Repl. Vol.,1969 Supp.). However, the statute

did not call for any inquiry into the defendant’s financial situation

and it was conceivable, under the statutory formula, that an indigent

defendant could be imprisoned in excess of the statutory maximum

for the underlying offense.

 

In two decisions that presaged to some extent the later Supreme

Court decisions, the federal district court in Maryland held specific

applications of the statute unconstitutional. In Morris v.

Schoonfield, 301 F. Supp. 158 (D. Md. 1969), vacated, 399 U.S. 508

(1970), a three-judge federal district court observed that the statute 4

had a dual purpose: (1) to provide a substitute punishment for the

crime; and (2) to coerce a recalcitrant defendant who was able to pay

a fine. The court held that the statute could not constitutionally be

applied to an indigent defendant, unless the defendant was given an

opportunity to present his financial circumstances to the judge, so

that the judge could take those circumstances into account, perhaps

by reducing the fine or allowing it to be paid in installments. “The

commitment or other record should show that the decision was made

deliberately by the judge after hearing from the defendant, either

before or after sentence on the question of his ability to pay the

fine.” Id. In Kelly v. Schoonfield, 285 F. Supp. 732 (D. Md. 1968),

the same three-judge court held unconstitutional a requirement that

a criminal defendant serve a period of incarceration in default of the

payment of court costs.

In response to the Morris and Kelly decisions, the General

Assembly in 1970 revised §4 to essentially its current terms.

Chapter 147, Laws of Maryland 1970. See Arthur v. Schoonfield,

315 F. Supp. 548, 551 (D. Md. 1970) (noting that 1970 legislation

was “carefully drawn” to meet constitutional standards set forth in
190 [86 Op. Att’y

 This requirement resembles the inquiry that would be undertaken 5

if the State pursued civil proceedings to collect the fine, as authorized by

another part of the statute. Under Article 38, §4(c), an unpaid fine may be

collected in the same manner as a judgment in a civil action. A defendant

who fails to pay a monetary judgment can be charged with constructive

civil contempt and face the prospect of imprisonment to coerce

compliance with the judgment. Maryland Rules 15-706; 15-707.

However, prior to imprisoning a defendant for civil contempt, the court

must allow the defendant an opportunity to show that “he has neither the

estate nor the ability to pay his obligation.” Rawlings v. Rawlings, 362

Md. 535, 567, 766 A.2d 98 (2001) (quoting Jones v. State, 351 Md. 264,

276, 718 A.2d 222 (1998)).

 Of course, under Williams and Tate, a period of incarceration could 6

not be constitutionally imposed against an indigent defendant for a nonjailable offense.

 If the sentencing court actually imposed a lawful sentence, the 7

(continued...)

Morris and Kelly); Turner v. State, 307 Md. 618, 516 A.2d 579

(1986) (summarizing history of 1970 amendments).

3. Summary

Under Article 38, §4(b), a court cannot extend the period of

incarceration for a defendant who fails to pay a fine without first

inquiring into the reasons, if any, why the defendant has failed to pay

the fine. If the court then elects to impose additional incarceration 5

in lieu of payment, the period of incarceration may not be indefinite.

Rather, the statute sets very specific limits on any such period of

imprisonment. At the most, such a period cannot exceed 90 days (or

15 days if the offense does not ordinarily involve the possibility of

imprisonment).

6

To illustrate your request for this opinion, you attached a copy

of a commitment record with identifying information redacted. That

commitment record stated that the defendant, who apparently had

been convicted of a drug offense, was to serve 90 days incarceration

and “Defendant to pay a fine in the amount of $5,000 before released

from confinement.” We cannot express an opinion whether the

sentence recorded in this commitment record complies with Article

38, §4, because the document is open to several interpretations, at

least two of which would be lawful.7
Gen. 183] 191

 (...continued) 7

sentence is to be carried out even if the commitment record could be read

to impose an unlawful one – e.g., indefinite incarceration in lieu of

payment of a fine. See Maryland Rule 4-351.

On its face, this document appears to require that the defendant

be incarcerated for 90 days and pay a fine during that period. It does

not itself appear to authorize incarceration in lieu of payment of the

fine. Of course, if the defendant failed to pay the fine and, after

inquiry, the court determined that the defendant should serve

additional time in custody for the default, the court could sentence

the defendant to an additional period, subject to the limits in Article

38, §4(b). 

It is also conceivable that this commitment record documents

the court’s decision to impose incarceration in lieu of payment of the

$5,000 fine after a proceeding under Article 38, §4(b). The

commitment record involves a sentence of 90 days – the maximum

permitted by §4(b) – and could be construed to direct the release of

the defendant during that period on payment of the fine – also

consistent with §4(b).

If you have a question, based on a particular commitment

record, about whether a sentence exceeds the parameters set by the

Constitution or Article 38, §4, you should write the sentencing court

outlining your concern, with copies to the prosecutor and defense

attorney. You should then await further direction from the court as

to when and under what circumstances to release the defendant. 

II

Conclusion

In our opinion, a court may sentence a convicted defendant

who has failed to pay a previously-imposed fine to an additional

period of confinement to “work off” the fine. However, in

accordance with Article 38, §4 and the federal Constitution, the

court must first inquire into the defendant’s family and financial

situation to assess the defendant’s ability to pay the fine. Any

additional period of incarceration must be within statutory limits and

can, in no event, exceed 90 days. Finally, the total period of

incarceration imposed on an indigent defendant may not exceed the

statutory maximum for the underlying offense. If, in a particular
192 [86 Op. Att’y

case, you are concerned that a sentence may exceed the statutory and

constitutional parameters, we recommend that you advise the court,

as well as the prosecutor and defense attorney, of the basis for your

concern and await further direction from the court.

J. Joseph Curran, Jr.

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions & Advice

Editor’s Note:

Article 38, §4, has been recodified in Courts & Judicial

Proceedings Article, §7-501 et seq. Chapter 26, Laws of Maryland

2004.