Or Else

Since the legal system has proven its remarkable ability to run like a well-oiled machine, at least when it comes to assuring that the accused be convicted, why not fix whatever problems remain by constructing yet another Rube Goldberg machine?  That’s what Tina Rosenberg proposes in a New York Times op-ed.

Cash-register justice incarcerates or keeps on probation many people who are not dangerous, just poor. And taxpayers are being abused by legislators who keep heaping fees on offenders. The lawmakers are not considering the enormous cost of jailing those who can’t pay, the cost of collecting their debts, or the cost to society of turning a civil violator into an incarcerated criminal.

By “cash-register justice,” Rosenberg means fines, plus penalties, plus interest, plus whatever additional amounts get tossed in because government wants moolah and law-breakers have no champions to call bullshit and advocate against the piling on of more and more dollars, all of which add up to insurmountable sums that crush poor people and make it impossible for them to get out from under the costs levied by the system.  And if you don’t see it in your neighborhood, you can take a look at how it worked in Ferguson, Missouri.

Rosenberg proposed the adoption of the European model, where fines are proportionate to income.

One way is to use the day fine. Rather than a set dollar amount, it is a percentage or multiple of an offender’s daily income — hence the name. In some countries, “daily income” is simply after-tax earnings. Others adjust for the number of dependents or fixed obligations like child support, and some consider only what is earned above a basic living allowance.

When it comes to fixing amounts of fines, this has a certain appeal. Proportionality is a keystone concept in punishment, even though it has the ability to produce some outlandish results. While Rosenberg suggests that day fines increase the likelihood of payment, because fines remain within an individual’s grasp, it doesn’t address the problem of what to do when people don’t pay. It’s this failure that gives rise to the alternative of jail.

In a rational world, people would pay fines because it’s preferable to jail. We don’t live in a rational world.  So we’re left with the same question as always: if a person doesn’t comply, then what?

Since day fines are calculated to be bearable, collection rates are much higher than with traditional fines. But they still require enforcement – in Germany’s case by means of other civil (not criminal) sanctions like the seizure of property, the garnisheeing of wages or the imposition of a sentence of community service. Nonpayers go to jail very rarely.

There is no requirement under our existing system that fines need to be unduly onerous.  There’s no legal explanation for why piling on court costs and fees atop fines is a sound correctional method. They do because they can. Beating up on the weak is a time-honored tradition in America. And when they can’t pay the vig, it’s off to jail they go, even though it ends up costing far more to jail them than the fine would bring in. Fiscal stupidity is also a time-honored tradition in America.

But the “or else” for failure to pay a fine, whether it’s a reasonable fine or a ridiculously exorbitant fine, is just edge-tweaking. Garnishment? That’s great, except when the kids are hungry and the rent is due. Property seizure? In rem forfeiture has worked great so far, without abuse or suffering, right?

Community service always sounds nice, but doesn’t help someone get a lost job back after they’ve been forced to hang with the chain gang keeping our roadways clean after filthy pigs threw their garbage from their passing cars and didn’t get caught.

Rarely incarcerated?  That’s not only a little vague, but doesn’t really help the rarely incarcerated defendant. Or, for that matter, the millions of empty beds of local hoosegows built at great expense to give the locals a place to snooze.

Trading off one lousy system for another system that’s a little less lousy but far more complex and, given our legal and legislative traditions, likely to mesh its gears until it too gets loaded up with add-on fees and costs. With “cash-register justice” used, what will they call this system when it proves, as it will, amenable to abuse?

And yet, we haven’t touched the core problem in the bottom reaches of the legal system, the means by which low-level punishment short of incarceration gets enforced.  Pay the fine. Or else. Do the community service. Or else. Give us your car. Or else.

Or else what?

While paying a fine isn’t exactly a carrot, going to jail for 15 days is definitely meant as a stick.  Changing the flavor of the carrot so that it’s far more delicious isn’t a bad thing, but it doesn’t change the fact that there will be people who aren’t going to eat it if they don’t have to.  And so, we need a stick to make them, right?

We spend time and energy fighting over the front end of punishment, whether how high the fine plus whatever else politicians can toss in for some extra cash.  We spend no time thinking about the back end, the “or else.” In a theoretically rational world, jacking up the back end with a bigger, harsher stick would make paying the easy choice, provided people had the ability to pay in the first place.

But anyone who has spent any time around people for whom fines have been levied has heard the excuses even when the fines were low and reasonable. The baby needed diapers. The rent was due.  Whatever. There will be sad people who won’t, or can’t, pay. No matter what anyone tells you will happen.

And then we’re right back to the crux of the problem. Or else. Or what? No one has come up with an answer that doesn’t destroy lives. This is why time and effort are spent on the front end, because the back end offers no solution other than a big, draconian stick that keeps whacking the crap out of people (who may well deserve a whack, mind you) from which they can’t manage to recover.

 

8 thoughts on “Or Else

  1. Wayne

    Law enforcement was never intended to be a revenue stream, but as other taxing schemes are hitting the limit that the market will bear, this seems to be the only place left to expand.

    The state USED to go after speed trap towns that took in most of their budget from traffic fines. No more. Now, the state gets in on the act – get 3 tickets in 3 years, and the state tacks on a $1000 licence renewal “surcharge”,

    All of this is a conflict of interest, and it “real” crime (burglary, etc), takes a back burner to having five more officers out writing as many traffic fines as possible for their entire shift.

    Civil asset forfeiture is being encouraged by the federal government with 80% sharing programs, even when they violate state law.

    Law enforcement, and the courts, have the respect they have earned. IMHO, they’re indistinguishable from thieves and a mob’s shakedown thugs.

    1. SHG Post author

      This isn’t reddit. This is a criminal defense law blog. With actual actual criminal defense lawyers, prosecutors and judges. Do you really think your comment contributes anything?

  2. Mike

    A more visceral stick then, fear will keep them in line. We need lashings, canings; cut a few fingers off.

      1. Christopher Best

        Not effective enough–you use thumbs to text on your phone. And no millennial would ever sentence a person to having their thumbs cut off… How would they like pictures on Instagram?

  3. Anne Krone

    The “or else” has always been death. Sure there may be a lot of escalations along the way, but that is the end of the non-compliance road. Maybe people should think about that before wailing, “there oughtta be a law”?

    1. SHG Post author

      Any time a crime is created, there is always a potential of death. But it’s not the “or else.” The “or else” is the intended consequence of non-compliance, and death isn’t the intended ultimate threat.

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