Fines As An Alternative To Incarceration

Colorado, like almost all American jurisdictions, makes heavy use of small fines for petty criminal offenses, but includes fines almost as an afterthought, if at all, as the sanction for more serious offenses and has the option to impose many months or years of incarceration as a sentence even in the case of offenses that are usually disposed of only with a fine such as municipal ordinance violations and more serious traffic offenses.

As the Denver Daily News explains:

The fine for using a prostitute would be raised up to $10,000 under a bill that passed out of the Senate yesterday. The minimum fine for prostitution-related offenses would be raised to $5,000. The current fine for prostitution-related offenses can currently be under $100. Additionally, the bill would create “john schools” that first-time offenders could attend to get a deferred judgment. The scared straight-type program would educate first-time offenders on the harrowing effects of prostitution. The bill passed on a 32-2 vote and now goes to the House.

While sentences of incarceration produce big costs for taxpayers, fines raise revenues. Moreover, the maximum sentence of incarceration for an offense is generally much more severe in terms of economic impact than the related fine.

For example, a judge can impose a sentence of eighteen months of imprisonment for a class one misdemeanor, or a fine of $5,000. But, an eighteen month sentence of imprisonment would deprive the person sentenced of eighteen months of income in a state where the median income in a single person household is $52,430 in Colorado in 2010, depriving that median individual of more than $75,000 of income, in addition to considerable lost future income because the incarcerated individual is very likely to be unemployed for a substantial period of time upon release, and economic harm associated with involuntarily breaking their residential or automotive lease or default on their mortgage and car payments, etc. Even for someone earning only a far below median wage and netting out costs of room and board that are provided in jail, eighteen months of incarceration has far more economic impact than a $5,000 fine for a large share of all convicted criminal defendants.

Similarly, a judge can impose a sentence of a year in jail for a class two misdemeanor, but can impose of fine of no more than $1,000, and can impose a sentence of six months in jail for a class three misdemeanor, but can impose a fine of only $750.

The amounts of the fine somewhat understate the situation, because a variety of courts costs and fees apply when an individual is convicted of a crime, and there are also costs for a privately retained criminal defense attorney (if any), and the possibility of a restitution award. But, the general observation holds true and restitution awards are generally far narrower than the compensatory element of a civil tort judgment.

Of course, one of the reasons that we ended up with this kind of statutory framework is that a large share of criminal defendants in the United States are indigent or near indigent (something that can be estimated by the large percentage of criminal defendants who avail themselves of the services of the public defender), and that when imposed together with incarceration, the defendant has little or no means of generating income to pay it. Imposing fines that can never be paid is pointless and makes it harder to reintegrate the defendant into the community after the defendant is released. Indeed, one of the rules of thumb in the law is that legislators and judges and regulators tend to punish offenses committed by defendants without the financial wherewithal to make those they harm whole with incarceration and tend to punish offenses committed by defendants with an ability to pay with civil judgments and fines.

But, not all criminal defendants are indigent. One of the reasons that a large fine for people who purchase the services of prostitutes is attractive to legislators is that this is a class of criminal defendants who often do have the financial means to pay these fines. Many traffic, vice and white collar criminal defendants, generally, have a substantial ability to pay criminal fines. And, some minority of everyday crimes, especially misdemeanors and less serious felonies, are likewise committed by individuals with an ability to pay substantial fines for whom a sentence of incarceration would be an intense economic burden.  Large fines also make the option of prosecuting criminal cases against corporate defendants more attractive.

The predominant punishment in Germany and many Scandinavian countries for what would be serious misdemeanors or minor felonies in the United States is a "day fine" equal to one day's average income in some recent time period for the defendant times the number of days of fines imposed, in lieu of a maximum term of incarceration of the same length. Defaults result in imprisonment for the number of day-fine days of fines not paid. This keeps the defendant in the community, employed, with an incentive to work more to pay off the fine and shed the burden sooner, and without imposing significant administration costs on the public and without disproportionately punishing low income defendants. Part of what makes that system work is the fact t hat these countries don't have the kind of "underclass" of persistently poor people who regularly get caught up in their criminal justice system that we do in the United States. But, there is still surely a class of offenses in the United States for which a day-fine would be a useful criminal justice option.

This isn't to say that I support this Johns bill just passed by the State Senate. The policy case for criminalizing prostitution between consenting adults at all is weak, and many our world peers tolerate some form of legalized prostitution. In my view, taxing and regulating vice is generally preferrable to using the criminal law to prohibit it and trying to enforce that law.

But, while I don't support increasing penalties for adult prostitution, period, the approach of imposing a high fine for an offense in a situation where there is a realistic possibility that criminal defendants will be able to pay it, rather than incarceration, is an option that has much wider applicability.

Similarly, in cases where the existing fines are the predominant form of punishment for a crime and are adequate to the task, for example, for many traffic offenses that carry criminal penalties, ordinance violations, petty offenses and minor misdemeanors, removing the possibility of a sentence of incarceration would be desirable, because it would lower the stakes of proceeding, reduce the possibility of abuses of judicial discretion in sentencing, elminate the constitutional requirement that counsel be provided at public expense in the proceeding, and have little impact on the day to day outcomes of the criminal justice system in these areas. Where an offense is such that arrest power and brief periods of incarceration are helpful in enforcing the law (e.g. public drunkeness or disturbing the peace), a maximum period of incarceration of a few days, as opposed to many months, might be attached to a significant fine.