Day Fines

by

Jakub Drápal

• LAST MODIFIED: 25 August 2021
• DOI: 10.1093/obo/9780195396607-0303

Introduction

The day fine concept consists in imposing fines in such a structured way that the final amount of the fine is directly proportionate to offenders’ means and to the offense’s seriousness. This is achieved by multiplication of two quantities: the amount of one day fine and the number of day fines. The amount of one day fine is set in proportion to offenders’ means, while the number of day fines reflects the offense’s seriousness. In some—especially Anglophone—countries the day fine is called either a structured fine, as there is a clear structure of how the fine is calculated, or a unit fine, as offenders’ means serve as a basis for calculating one day fine unit. The systematic way of assessing offenders’ means is what differentiates day fines from fixed fines: by setting only the final amount, fixed fines might be proportional to offenders’ means, yet such a relationship is unclear, unverifiable, and likely inconsistent across sentencers. There are several rationales for making explicit the relationship between offenders’ means and a fine. Consequentionalists (utilitarians) support day fines because they are supposed to similarly deter offenders of different wealth. Those less concerned with utilitarian theories support day fines because they better communicate the appropriate amount of censure via hard treatment to offenders than fixed fines. Day fines further limit their unequal impact on disadvantaged groups upon default: if a fine is set in proportion to offenders’ means, the ratio of poor offenders defaulting and serving a prison sentence is likely to decrease when compared with not setting a fine in direct proportion to offenders’ means. Sentencing scholarship would prefer day fines over fixed fines as they are an expression of principled sentencing and they likely limit disparities in assessing offenders’ means. Day fines are used especially in Continental Europe and in Latin America. Even though the Anglophone world often strove to introduce day fines, and sometimes succeeded, the day fine concept was never widely accepted in the common-law systems. The large amount of scholarship published in English thus retells Continental experiences; suggests ways of implementing day fines, especially in the United States, where they are neglected compared with Continental Europe; or discusses the pilot projects in Anglophone countries. Readers should be warned, however, that there is still little research on how day fines function in practice, and even on fines in general, even though they the most popular sanction.

Theoretical Foundations

People differ about which cases they consider alike and which are disparate. Why should fines be proportionate to offenders’ means? Bentham 1840 provides the basic theoretical utilitarian background, which is further extended in Eriksson and Goodin 2007 in its explanation of why a time-based metric is better than a money-based metric in sanctioning offenders; day fines are used to illustrate this point. Montag and Sobek 2019 supplements Eriksson and Goodin 2007 by summarizing general discussions over what offenders’ characteristics could be taken into account when sentencing, focusing particularly on the relationship between offenders’ means and fines. Day fines are not the only way a monetary sanction might be imposed in relation to offenders’ means: Kantorowicz-Reznichenko 2015 discusses the advantages and disadvantages of different approaches. On a different note, one of the main tenets of the day fine concept is that fines should not disproportionately influence poor offenders. If the fine is not imposed in direct proportion to offenders’ means, the criminal justice system might at least try to employ measures that will not incarcerate poor offenders at disproportionate rates, as discussed in Westen 1969. It is impossible to understand day fines without understanding fines as well. Einat 2014 presents a short history of fines, while O’Malley 2009 presents a more extensive history as well as an excellent overview of past deliberations over fines, and explains why monetary sanctions today occupy a central role within criminal justice systems. Faraldo-Cabana 2020 further supplements O’Malley 2009 in relation to day fines by showing the lack of attention paid to the concept in the past, especially by Rusche and Kirchheimer 1939, which criticizes fines for disproportionately affecting poor offenders. All fines are not of the same kind. O’Malley 2009 distinguishes penal and regulatory fines in a slightly similar way, and Sandel 2012 divides monetary sanctions into fines and fees. These distinctions are crucial, as they imply fines fulfill different roles in distinct areas of legal systems, and not all types of fines need to be—or indeed should be—proportional to offenders’ means. These issues are discussed in detail in Drápal 2019, which examines (among others) which administrative fines should be directly proportionate to offenders’ means and which should not.

• Bentham, J. 1840. Theory of legislation. Vol. 2, Principles of the penal code. Boston: Weeks, Jordan and Company.

  While not directly discussing day fines, the utilitarian position dictates Bentham to formulate that fines should be proportional to offenders’ means. Theoretical foundations of day fines related to deterrence and equality are presented in this work. On pecuniary punishment, see pp. 132–133.

• Drápal, J. 2019. Přiměřenost peněžité sankce k majetku pachatele. Prague: Wolters Kluwer.

  A monograph dedicated to the relationship between offenders’ means and monetary sanctions. It discusses its application and theory in criminal, administrative, and constitutional law in the Czech Republic and across Europe. Available only in Czech, also in an electronic form.

• Einat, T. 2014. History of fines. In Encyclopedia of criminology and criminal justice. Edited by G. Bruinsma and D. Weisburd, 2149–2153. New York: Springer..

  DOI: 10.1007/978-1-4614-5690-2_275

  Short and concise presentation of history of fines.

• Eriksson, L., and R. E. Goodin. 2007. The measuring rod of time: The example of Swedish day-fines. Journal of Applied Philosophy 24.2: 125–136.

  DOI: 10.1111/j.1468-5930.2007.00376.x

  Presentation of the advantages of employing a time-based rather than money-based metric when imposing sanctions. Day fines and the arguments for and against their introduction into the Swedish criminal justice system are used as an example for making this point.

• Faraldo-Cabana, P. 2020. On the political economy of fines: Rusche and Kirchheimer’s Punishment and Social Structure revisited. European Journal of the History of Economic Thought 27.5: 661–681.

  DOI: 10.1080/09672567.2020.1739104

  A debate over an absence of discussion of the day fine concept in the influential book Rusche and Kirchheimer 1939.

• Kantorowicz-Reznichenko, E. 2015. Day-fines: Should the rich pay more? Review of Law & Economics 11.3: 481–501.

  DOI: 10.1515/rle-2014-0045

  Overview of different ways of fixing fines, with a specific focus on day fines and a comparison of various models from an economic perspective.

• Montag, J., and T. Sobek. 2019. Subjective punishment. In Encyclopedia of law and economics. Edited by A. Marciano and G. B. Ramello, 1970–1978. New York: Springer.

  DOI: 10.1007/978-1-4614-7753-2_720

  A short theoretical overview of approaches to whether individual characteristics of offenders should be considered upon sentencing, with a specific focus on fines and wealth.

• O’Malley, P. 2009. The currency of justice. Abingdon, UK: Routledge-Cavendish.

  DOI: 10.4324/9780203881811

  A seminal work enabling readers to understand the position of the fine in the criminal justice system. It uncovers the historical roots of the day fine concept (the emergence of surplus income), and discusses the fine’s application in different contexts (as penal and regulatory fine) and an institute similar to it: monetary damages. It explains why fines became the most widely used sanction.

• Rusche, G., and O. Kirchheimer. 1939. Punishment and social structure. New York: Columbia Univ. Press.

  DOI: 10.7312/rusc92484

  A classic text of critical and radical criminology studying the varying use of different forms of punishment across different time eras. Suggests fines could be widely used only when the level of poverty decreased.

• Sandel, M. J. 2012. What money can’t buy: The moral limits of markets. New York: Farrar, Straus and Giroux.

  A distinction between fines and fees is made, enabling more detailed debates regarding in which contexts fines should be imposed in direct proportion to offenders’ means. On fines and fees, see pp. 65–70.

• Westen, D. A. 1969. Fines, imprisonment, and the poor: “Thirty dollars or thirty days.” California Law Review 57.3: 778–821.

  DOI: 10.2307/3479718

  A discussion of the consequences of imposing a fine that is not proportionate to offenders’ means for poor offenders. It provides detailed historical discussion of Anglo-Saxon approaches to dealing with these issues.