Volume 55
Issue 2
Spring '18

Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend

Written By: Elena Kantorowicz-Reznichenko

Abstract

In this Article, I do not suggest that American imprisonment rates can be reduced to the European level. There are inherent differences that might impede such a goal. For example, even if only prisoners who committed murder or rape were incarcerated, U.S. prisons would still have a higher number of prisoners than the European prison population. Therefore, this Article only discusses the possibility and the advantages of replacing fixed-fines with day-fines. This would enable the American criminal justice system to punish a larger range of categories of offenses with fines rather than imprisonment and contribute to decreasing the prison population.

Despite their potential, day-fines did not receive scholarly attention in the United States after the experimentation period of the 1980s and 1990s. To the best of my knowledge, there has only been one report by the National Institute of Justice addressing this model of fines since that time. This Article attempts to fill this gap and to reopen the discussion among legal scholars and practitioners in the United States. This is also the first article to provide a comparative and exhaustive depiction of the different day-fine models that are applied in Europe. Furthermore, this Article analyzes the main challenges for transplanting day-fines into the U.S criminal justice system. In this context, this Article focuses on the American understanding of uniformity in sentencing and whether a day-fine model fits this approach. It also analyzes the potential of day-fines to violate the Excessive Fines Clause of the Eighth Amendment. Finally, this Article addresses the problem of limited access to financial information of the offender as a general challenge to wealth dependent fines. To date, the Excessive Fines Clause and the American concept of uniformity in sentencing have not been discussed with respect to day-fines despite their clear relevance.

Parts I and II of this Article describe day-fines in general, discuss their development and structure in Europe, provide an overview of the short experience the United States has had with this model of pecuniary sanctions, and demonstrate their core advantages. Part III analyzes three major challenges for transplanting the European model of day-fines into the U.S. criminal justice system: the American ‘uniformity revolution,’ the Excessive Fines Clause and the limited access to financial information.

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