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Day Fines: A First Step in Ending Mass Incarceration

In 2015, Finnish millionaire Reima Kuisla paid the equivalent of $59,677 after driving fifteen miles per hour above the speed limit. For the same offense, a low-income Finn may not even have to surrender more than $50. Fines adjusted for income—or day fines—are not uncommon outside of Finland. Germany, Macau, Spain, France, and others use day fines, and the ideology dates back at least to Baron de Montesquieu. Applied to the US criminal justice system, day fines could reduce incarceration and ensure fines do not pose a disproportionate burden on low-income individuals.

Lawmakers in countries with day fines first must assign an amount of “units” of punishment for each crime punishable by a fine. The unit amounts for a given crime are proportional to the amount of days’ income that the lawmakers believe the defendant should be penalized for committing that crime. To calculate the fine amount, the court assesses the defendant’s income and multiplies it by the amount of units, yielding fines that pose—at least in theory—a roughly equal economic burden on everyone regardless of socioeconomic status. Day fines received their name because their amount represents the amount of days one would have to work to pay off their fine.

Countries like Germany account for assets and annuities in their fine assessment, and many set a cap for the amount of units of punishment one can receive with a day fine. Income assessment mostly relies on self-reporting, but courts in some countries like Finland have access to tax data, making lying about one’s income uncommon. While the culture of privacy in the United States may preclude a system similar to that of Finland, the local day fine experiments in Staten Island and Milwaukee have found self-reporting to be accurate more than 90 percent of the time. Moreover, American courts can constitutionally gather information about defendants’ means through oral interviews and a pretrial fact-finding process. Probing investigations into personal wealth would be burdensome and against a longstanding tradition of privacy in the United States. Nonetheless, any sort of fine adjustment based on income, even if imprecise, is more equitable than a fixed-sum fine.

Countries have adopted day fines for two reasons: to ensure they issue monetary sanctions equitably and to expand the applicability of fines to reduce imprisonment. As a result, countries with day fine systems use fines far more often and for a larger range of offenses than the United States. Undergirding the more expansive use of fines in these countries is the assumption that they are as effective as imprisonment. Indeed, research at the Max Planck Institute in Bavaria has found that fines are “no less effective” than short-term incarceration at preventing reconviction among petty thieves and traffic violators. Nonetheless, robust evidence proving day fines can serve as deterrents will be necessary to assuage the doubts of their critics, who will likely come from the ranks of social conservatives.

Sally Hillsman of the Vera Institute of Justice observes that the US justice system infrequently uses fines alone as a penal tool for two reasons: their tenuous impact on the rich and their unenforceability on the poor. This conflict leaves imprisonment as the only remaining option. Nonetheless, the punitive fixed-sum fines that courts do levy for offenses like traffic violations are regressive. Although a blip in spending for wealthy people, fines can be disastrous for others. Via the logic of the day fine system, applying a fixed-sum fine for the same offense to people of different incomes is akin to meting out different sentences based on wealth.

Despite the U.S.’s aversion to using fines as a standalone punishment, courts across the country have expanded their use of fines as an additional penalty in recent years. This trend has forced impoverished people convicted of low-level offenses into court debt. A particularly egregious case is the city of Ferguson, Missouri, where a Department of Justice investigation found that, “law enforcement efforts are focusedon generating revenue,” through fines and fees. Per a report by the Obama White House, the amount of people who have received fines in addition to incarceration increased threefold between 1986 and 2004. However, no evidence supports the notion that courts have used fines as alternatives for imprisonment in that time frame. If that were the case, incarceration rates would not have exploded between 1990 and 2014. When people indebted to the court inevitably default, they end up in jail. For example, 18 percent of Rhode Island incarcerations from 2005 to 2007 were due to criminal justice debt, and other states have similar numbers. Replacing fixed-sum fines with day fines would give defendants a fair chance at paying this debt and avoiding jail. Case in point: locales that have experimented with day fines have seen a sizeable increase in the rate of payment.

Day fines would not make the criminal justice debt problem disappear. Fixed-sum fees for jail room and board, probation officers, drug testing, and even public defenders have become common, and they present another financial burden for low-income defendants. While data on which monetary sanctions—fines or fees—is more responsible for criminal justice debt are scant, courts can still prevent thousands of people from entering modern-day debtors’ prison just by implementing day fines.

Even though justice should always take precedence over revenue generation, the reliance of many jurisdictions on fines makes revenue issues relevant in the day fine debate. By the same token, looking at day fines’ effects on expenditures is also pertinent because some critics raise concerns about the administrative costs of determining defendants’ income. Day fine experiments have been too few and far between to make a declaration about day fines’ fiscal effects; Milwaukee saw a decrease in revenue, whereas Staten Island saw an increase. However, jurisdictions with a majority low-income population may reasonably fear that day fines would decrease their court revenues, deterring them from adopting the policy and perpetuating a system where poor people end up disproportionately burdened by criminal justice debt.

No one should expect a day fine regime akin to that of Germany or Finland overnight, but adoption of day fines for a narrow range of offenses in many small communities could build credibility for the concept among the criminal justice community. It could also iron out the wrinkles that the Staten Island and Milwaukee experiments encountered, giving a better sense of day fines’ effects on revenues and expenditures, allowing communities to adjust according to local circumstances. This experimentation could help poor jurisdictions at risk of seeing revenue decreases figure out how to make day fines fiscally feasible. From there, day fines’ reputation could improve, and their scope could expand. If they become popular enough, jurisdictions may gain the confidence to enact day fees as well, better attacking the criminal justice debt epidemic.

While national criminal justice reform efforts must continue, state and municipal governments have been culpable for many of the systems’ inequities. By testing day fines on a small scale, local and state governments will not only help start a national conversation about innovative reform policies, but they will also be able to reduce many of the system’s inequities on their own.

Photo: Image via Joe Brusky (Flickr)