Under Bearden v. Georgia, a court cannot revoke probation and send you to prison for failure to pay a fine or restitution without first looking into why you didn’t pay. The 1983 Supreme Court decision arose from a probationer who was sentenced to three years of probation with a $500 fine and $250 in restitution, lost his job, could not keep up with the payments, and had his probation revoked and was sent to prison as a result. The Court held that the Fourteenth Amendment does not allow a state to imprison someone solely because they lack the money to satisfy a financial condition of release.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
The rule covers both fines imposed as punishment and restitution owed to victims.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
The Inquiry a Court Must Make Before Revoking Probation
When a probationer misses payments, the sentencing court cannot treat the missed payment as an automatic ground for revocation. It must first investigate the probationer’s financial circumstances and decide whether the person is responsible for the failure or simply lacks the means to pay.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
The inquiry is a formal part of the revocation proceeding. The judge weighs evidence about the probationer’s income, resources, and efforts to meet the obligation, and the decision to revoke must be supported by evidence and findings on the record.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
Willful Nonpayment Versus Inability to Pay
The outcome of the inquiry turns on a single distinction: did the probationer refuse to pay, or were they unable to pay?
A failure is willful if the probationer has the financial resources to pay, or the opportunity to get them, but chooses not to. It is also willful if the person fails to make an honest effort to find work or borrow the money needed to meet the obligation. In those situations, the court may use imprisonment as a punishment.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
A different standard applies when the probationer has made a bona fide effort to pay but still falls short. If the person has taken every reasonable step to find employment or generate income and remains unable to afford the debt through no fault of their own, the law treats the failure as misfortune rather than misconduct, and the court generally cannot jail the person for the debt alone.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
Alternatives the Court Must Consider First
When the court finds that a probationer has tried honestly to pay but remains indigent, it must look at options other than incarceration before resorting to jail. Those alternatives include:2U.S. Department of Justice. Dear Colleague Letter Regarding Fines and Fees
- Setting up a payment plan to pay the debt over time
- Reducing the total fine to match the person’s earning capacity
- Assigning community service or specific work to satisfy the debt
Only if those alternatives are inadequate to meet the state’s interests in punishment and deterrence may the court consider imprisonment.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660
What the Record Must Show
A revocation that ends in incarceration has to rest on more than the fact of missed payment. The record needs evidence of the probationer’s actual financial capacity, findings about whether their efforts were genuine, and, where the person is found indigent, a determination that alternative measures would not satisfy the state’s interests.1Supreme Court of the United States. Bearden v. Georgia, 461 U.S. 660 If any of those pieces is missing, the Bearden rule has not been satisfied.