Willful Blindness: Challenging Inadequate Ability to Pay Hearings Through Strategic Litigation and Legislative Reforms

Roughly ten million Americans owe court-ordered economic sanctions, known as Legal Financial Obligations (LFOs). Oftentimes, payment of these fees is a condition of probation; when an individual is unable to make payments their probation may be revoked, resulting in incarceration. In 1983, the Supreme Court handed down its opinion in Bearden v. Georgia, explaining that states may only revoke probation for nonpayment of LFOs upon a showing that the nonpayment was “willful,” a determination that must be made in court through an ability to pay hearing. Since Bearden, the Supreme Court has not revisited this issue to explain what “willful” means, leading to an outgrowth of divergent interpretations among lower courts. This Note examines the history and context of the Bearden decision in an effort to uncover a clearer understanding of the meaning of the term “willful.” In doing so, this Note aims to show how some interpretations of this standard have failed to meet the threshold set by the Supreme Court, resulting in unconstitutional deprivations of liberty. Finally, this Note discusses some of the problems facing advocates in challenging inadequate ability to pay determinations before proposing potential solutions through both strategic litigation and legislative reform, modeled on successful outcomes in Washington, Louisiana, and Massachusetts.