BOP Program Statement 5882.03 § 7

Code, Sections 3565 and 3569 are the controlling statutes. Section 3565

states in part:

“If the court finds by a preponderance of the information relied upon

in imposing sentence that the defendant has the present ability to pay

a fine, or penalty, the judgment may direct imprisonment until the

fine, or penalty is paid, and the issue of execution on the judgment

shall not discharge the defendant from imprisonment until the amount

of the judgment is paid.”

This means that the inmate must remain confined until the fine, or fine and

costs is paid unless he or she qualifies for release under the provisions

of 18 U.S.C. § 3569. The judgment and commitment (J&C) order must contain

language which clearly indicates that the inmate is to stand committed

until the fine, or fine and costs, is paid or otherwise disposed of

according to law.

Under 18 U.S.C. § 3569:

“. . . such convict may make application in writing to the nearest

United States magistrate in the district where he is imprisoned

setting forth his inability to pay such fine, or fine and costs, and

after notice to the district attorney of the United States, who may

appear, offer evidence, and be heard, the magistrate shall proceed to

hear and determine the matter." If it shall appear to the magistrate

that "such convict is unable to pay such fine, or fine and costs, and

that he has not any property exceeding $20 in value, except such as is

by law exempt from being taken on execution for debt (emphasis added),

the magistrate shall administer to him the following oath:

‘I do solemnly swear that I have not any property, real or

personal, exceeding $20, except such as is by law exempt from

being taken on civil process for debt; and

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that I have no property in any way conveyed or concealed, or in

any way disposed of, for my future use or benefit. So help me

God.’

Upon taking such oath such convict shall be discharged; and the

magistrate shall file with the institution in which the convict is

confined, a certificate setting forth the facts.”

The "oath" referred to above is commonly known as the "Pauper's Oath." The

oath is administered to the inmate when a finding of indigency is made. A

listing of benefits and payments exempt by federal statute is noted in the

Payments Exempt by Federal Statute Without Regard to the State of the

Debtor's Residence form (Attachment A). This list is not inclusive and

reference should be made to the Internal Revenue Code of 1986 (26 U.S.C. §

6334).

If an inmate applies to the U.S. Magistrate Judge for an indigency

determination and the U.S. Magistrate Judge makes a finding of

non-indigency, staff shall refer the issue for final disposition, under 18

U.S.C. § 3569, to the appropriate U.S. Attorney (the U.S. Attorney for the

district in which the inmate is incarcerated).

When the U.S. Magistrate Judge finds the inmate to possess property valued

at an amount in excess of said exemption, the Attorney General, whose

authority is delegated to the U.S. Attorney under 28 CFR § 0.171(g), may

find that the retention of all such property is reasonably necessary for

the inmate's support or that of his or her family and the inmate may be

released without further imprisonment solely on the basis of nonpayment of

such fine, or fine and costs; or the Attorney General may find that the

retention of any part of such property is reasonably necessary for the

inmate's support or that of his or her family, the inmate shall be released

without further imprisonment solely for nonpayment of such fine, or fine

and costs, upon a payment on the account of the fine, or fine and costs, of

that portion of the property found to be in excess of that amount

reasonably necessary for the inmate's support or that of his or her family.