A certain sense of fairness? Why fines were made affordable
| Author | Patricia Faraldo Cabana |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| DOI | http://doi.org/10.1177/1477370815587765 |
| Subject Matter | Articles |
research-article2015
Article
European Journal of Criminology
2015, Vol. 12(5) 616 –631
A certain sense of fairness?
© The Author(s) 2015
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DOI: 10.1177/1477370815587765
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affordable
Patricia Faraldo Cabana
University of A Corunna, Spain
Abstract
One of the most influential considerations in the courts’ attitude towards penal fines is their
affordability for low-income offenders. European literature devoted much energy to addressing
the use of imprisonment as a substitute penalty in default of payment and the subsequent
overcrowding of prisons with poor people who could not paid their fines. These two problems
became central focuses in the European criminal systems during the 19th century. This paper
aims to investigate more closely the reasons why these phenomena became such a focal issue and
the measures taken to manage them. It does so by reviewing historical material from a variety of
West European countries.
Keywords
Equality principle, fines, imprisonment, liberalism
Introduction
One of the most influential considerations in the courts’ attitude towards penal fines is
their affordability for persons on a low income. The use of imprisonment as a substitute
penalty in default of payment, and consequently the problem of prisons being crowded
with fine defaulters, became central focuses in the European criminal systems during the
19th century. This paper aims to investigate the reasons why imprisonment for fine
defaulters and subsequent prison overcrowding became such focal issues and how they
were managed.1 Moreover, this paper explains the ideological basis that argued for con-
sidering the offender’s financial means when calculating penal fines and, ultimately,
culminated in the establishment of the day-fine system. This historical development was
Corresponding author:
Patricia Faraldo Cabana, Faculty of Law, University of A Corunna, Campus de Elviña s/n, A Corunna,
15071, Spain.
Email: patricia.faraldo@udc.es
Cabana
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particularly interesting because it strongly contributed to the expansion of the fine in the
20th century.
To address this issue, I firstly explain the liberal approach to imprisonment and fines
in order to shed light on why, after the Enlightenment, fines were relegated to a marginal
role in the criminal justice system whereas imprisonment began to be widely imple-
mented. Secondly, I summarize the late 19th-century ‘crusade’ against short-term impris-
onment, since this period marked the first criticism of prison conditions, which led to a
review of the punishment of imprisonment and its fundamental and almost exclusive
role. Thirdly, I analyse how this criticism spread to the debate on imprisonment for fine
defaulters, and in the end to fines themselves. Fourthly, I explain the failure of alternative
ways to manage the problem, which made it necessary to propose either abolishing the
fine or making significant amendments to its regulations. And, finally, I examine how the
proposal to take into account the offender’s financial means when calculating the penal
fine emerged and gained strength.
The liberal approach to imprisonment and fines
The first French Penal Code, passed in 1791,2 laid the groundwork for the large-scale
implementation of imprisonment as a punishment, at first accompanied by forced
labour, throughout the Western world. The justification of imprisonment as a punish-
ment, beyond its traditional function as a precautionary measure, was usually associ-
ated with the criticism of the paraphernalia that went with enforcing the death penalty
and corporal punishments. As Radzinowicz (1966: 11) highlights, comprehensively
expressing this idea, ‘[t]he savage penalties of the past were to give place to the pun-
ishments most suited to an age that valued liberty above everything, the punishment of
imprisonment.’
However, the origin and application of imprisonment as we know it today was not a
contribution of the Enlightenment. Enlightenment was attached not to a specific penol-
ogy, or even to codification techniques,3 but to the analysis of social and political pro-
cesses in the context of rationality. It is generally not true that the Enlightenment
philosophers’ advocated imprisonment as a more humane punishment than the corporal
and capital punishments used during the ancien régime.4 The reasoning behind promot-
ing imprisonment was based not on its being a milder, more humane punishment, but on
a utilitarian concern about the need for maximum economy and proportionality in the use
of pain. Montesquieu, Beccaria, Voltaire, and Filangieri agreed that legislative cruelty
might be self-defeating by preventing law enforcement. They thought that most corporal
punishments, including the death penalty, were inappropriate because they made it
impossible to establish an exact proportion between crime and punishment. They under-
stood that, despite the existing variety of torments, a criminal can ‘suffer only to a certain
degree, beyond which it is impossible to proceed, be the enormity of the crime ever so
great’ (Beccaria, 1764: Chapter XXVII). They were well aware that the death of a crimi-
nal ‘is a terrible but momentary spectacle, and therefore a less efficacious method of
deterring others, than the continued example of a man deprived of his liberty, condemned
as a beast of burden, to repair, by his labour, the injury he has done to society’ (Beccaria,
1764: Chapter XXVIII). Clearly, their criticism of the death penalty and of corporal
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European Journal of Criminology 12(5)
punishments was based not on their cruelty but on their useless cruelty (Sbriccoli, 2009
[1990]: 412–13). The reformers wanted ‘not to punish less, but to punish better’ (Foucault,
1977: 82).
Why then do we tend to associate the Enlightenment with the more widespread use of
imprisonment? The effort made by many Enlightenment thinkers to establish a propor-
tionalist ideology – as a means to fight arbitrariness – explains the preference for numer-
ative punishments, such as prison, arrest, and bail. Imprisonment lent itself extremely
well to an exact gradation of the degree of punishment for a particular offence, much
better than the death penalty or most corporal punishments.
But the same advantages could be attributed to fines (Tarello, 1976). Fines were a
very important sanction in most European countries until the late 18th century.5 As
O’Malley (2009: 70) explains, ‘[i]t was not simply corporal punishment that prisons
displaced, but also and even more so, fines.’ Why was the use of fines as a punishment
almost abandoned? By the mid-1770s, a general acceptance of reformation achieved
through hard prison labour had been established, which fuelled the rapid development of
the idea of imprisonment over the next century. Fines, on the other hand, were perceived
as having no reformative value. Although this may have been an important factor, I
believe the paradigmatic shift mainly resulted from the acceptance of imprisonment as a
more equal punishment than fines. Contributing to this shift was the changing perception
of freedom at the end of the 18th century. Freedom was viewed as an unalienable right
equally possessed by every person. It was this new understanding that contributed to the
emergence of the deprivation of freedom as a punishment (Tarello, 1976: 53). Given that
it could be presumed that each individual was in a formally equal position to each other,
equality issues did not arise.
In contrast, fines did not sit well with the formal understanding of the equality princi-
ple. Fines are settled in money, a resource unequally distributed among individuals in
society. It is generally presumed that individuals are not on an equal financial footing.
This fact differs fundamentally from imprisonment (Young, 1989: 63). Many
Enlightenment thinkers believed that punishing an offender by imposing a set monetary
fine, although appropriate for those offences caused by greed, generally led to the legal
imposition of an inequality (in Italy, Filangieri, 1788; in Germany, von Soden, 1792:
103, or von Feuerbach, 1804: 228; in Spain, Marcos Gutiérrez, 1826: 145–7). In order to
counterbalance this inequality, fine amounts were to be left to the discretion of the judges.
But this was considered ‘seemingly repugnant to the genius of a government, formed and
supported on maxims of freedom’ (Eden, 1771: 68). Therefore, large swathes of litera-
ture in the early and mid-19th century argued that fines were not a ‘fair’ punishment:
The fine is a punishment of a singular kind, and has little in common with most other
punishments established by law. While these cases encumber the person or freedom, which is
almost the same person, those affect wealth only, which is something very different. The level
of personality is the same for all men, and freedom is similar: wealth is so varied, men’s fortunes
are so disparate and diverse [ . . . ]. Therefore, if a personal punishment, death, custodial
sentence, imprisonment, affects all men to an equal or similar extent, a pecuniary punishment
is the most unequal that can be conceived, when it is applied in identical measures to two
persons of different wealth. (Pacheco, 1856: 414–15)
Cabana
619
Admittedly it could be said that the law was equal for all when the same amount of
money was set to be paid, regardless of...
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