Are Day Fines a Solution?

After Ferguson, there has been renewed interest in how courts approach fines. Ferguson is regrettably a short term moniker for courts that are oblivious to the harsh reality of fining poor people. Many judges are rethinking what is the right thing to do. Elena Kantorowicz-Reznichenko (Erasmus University Rotterdam) has posted Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend (American Criminal Law Review, Forthcoming) on SSRN.

Here is the abstract:

Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses. On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem. Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.

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