The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School. Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:
Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services. The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments. Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions. When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.
In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform. The most direct efforts seek to repeal revenue-raising fines and fees. More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment. Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.
It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States. Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay. Day fines are set using a two-part inquiry. Courts first consider the nature and seriousness of the offense, measured in units or days. For example, a common low-level misdemeanor may receive 20 units. Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances. The amount a person must pay per day is called the daily rate. Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400. Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances. The resulting fines are theoretically more fair because people of different means experience the fines similarly. A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.
Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice. This project fills this knowledge gap....
Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model. Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay. Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome. When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design. In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States. We conclude with a decision guide for jurisdictions and advocates considering day fines.
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