Monetary penalties and compensations are ubiquitous. They outnumber all other sanctions delivered by criminal justice in many European countries. In a monetized society, in which money is increasingly available and all objects can be exchanged for money, fines take on new meanings, which will be investigated in the context of this project. It will be taken into account that the fine is the only type of penal sanction where the burden need not be borne by the wrongdoer and that the fine, unlike virtually all other sanctions, is always redistributed.

To achieve this ob­ject­ive, the pro­ject fo­cuses on the mech­an­isms, in­stru­ments, and prac­tices re­lat­ing to pen­al fines, ana­lys­ing their po­ten­tial as an ap­pro­pri­ate al­tern­at­ive to im­pris­on­ment and the im­plic­a­tions of their use in the trans­form­a­tion of so­cial con­trol strategies. This brings to light in­ter­est­ing para­doxes from their con­sol­id­a­tion in the works of Bec­caria and Bentham as one of the pil­lars of crime man­age­ment strategies to their gradu­al de­cline in fa­vour of an in­crease in sen­tences de­priving people of rights. This de­vel­op­ment must be seen with­in the frame­work of the crisis of the paradigm of re­hab­il­it­a­tion through pris­on but also with­in the crisis of fines and fin­an­cial pen­al­ties them­selves, since their very nature re­quires the pro­vi­sion of sub­sti­tute mech­an­isms to be strong in or­der to achieve a pre­vent­ive ef­fect, usu­ally short-term pris­on sen­tences, which raises the ques­tion of equal­ity between rich and poor of­fend­ers. His­tor­ic­ally con­sidered, a more wide­spread use of the fine be­came pos­sible once the sub­si­di­ary pun­ish­ment of a pris­on sen­tence was ap­plied in truly ex­cep­tion­al cases only. The amount of the fine was set, tak­ing in­to ac­count the of­fend­er’s fin­an­cial situ­ation, and al­low­ing for pay­ment by in­stal­ments, thereby al­lay­ing the cri­ti­cism used against it: the fine is scaled to re­flect the ser­i­ous­ness of the of­fence and ad­jus­ted to the of­fend­er’s in­come, thus af­fect­ing poor and rich of­fend­ers in the same pro­por­tion­ate meas­ure. In this way, equal pun­ish­ment can be ad­min­istered to of­fend­ers with vastly dif­fer­ent fin­an­cial cir­cum­stances but con­victed of the same crime, and in­solv­ency no longer auto­mat­ic­ally leads to the im­pris­on­ment of the of­fend­er, as it was pos­sible to (1) set in­stal­ments in or­der to give the of­fend­er time to pay, and/or (2) as a last re­sort, to sub­sti­tute im­pris­on­ment for fine de­fault with oth­er non-cus­todi­al pen­al­ties, mainly com­munity ser­vice. The pro­ject aims to do a map­ping of chro­no­lo­gic­ally dis­tinct ra­tion­al­it­ies and prac­tices that renders vis­ible at once their modes of func­tion­ing as well as their lim­its. From this point of view, the gene­a­logy of the pen­al fine is the story of con­stant re­for­mu­la­tion in re­sponse to shift­ing polit­ic­al pres­sures, changes in in­sti­tu­tion­al and ad­min­is­trat­ive ar­range­ments, and in­tel­lec­tu­al de­vel­op­ments that altered the ideo­lo­gic­al com­mit­ments of le­gis­lat­ors and prac­ti­tion­ers. With­in this chron­icle of re­for­mu­la­tion, broad trans­form­a­tions since the late 1700s are dis­cern­ible. These trans­form­a­tions help us to de­lim­it­ate old and new forms of pun­ish­ment and, to some de­gree, dif­fer­ent modes of con­struct­ing crim­in­al law.

The pro­ject goes bey­ond a tra­di­tion­al leg­al dog­mat­ic ana­lys­is, as it aims to lay the found­a­tions for a new con­cep­tu­al­isa­tion of pen­al fines in con­sumer so­ci­et­ies that must be based on a pri­or study ana­lys­ing the mean­ing of money in these so­ci­et­ies. The ap­proach used in this study does not fo­cus on the cul­tur­al ques­tion of the pop­u­lar mean­ings of money and mon­et­ary sanc­tions. In­stead, as far as pos­sible, the ini­tial fo­cus of the pro­ject is more spe­cific­ally on gov­ern­ment­al im­plic­a­tions, since there is a ma­jor and demon­strable thread of gov­ern­ment­al reas­on­ing un­der­ly­ing the nature and form of fines in lib­er­al policies. To enter the realm of mean­ings and uses of money and mon­et­ary pen­al­ties in this way re­quires ex­amin­ing the role of fines as gov­ern­ment­al tech­no­lo­gies and the kinds of gov­ern­ment­al mean­ings, ra­tion­al­it­ies, and broad­er tech­no­lo­gies to which they are linked. The ana­lys­is of such gov­ern­ment­al men­tal­it­ies shifts the pro­ject closer to what Fou­cault re­ferred to as “sig­ni­fic­ant state­ments”: the “mean­ings” (of­ten giv­en ma­ter­i­al form in the reas­on­ing of judges, le­gis­lat­ors, and oth­ers) that can be iden­ti­fied with en­dur­ing and reas­on­ably sys­tem­at­ic gov­ern­ment­al uses of mon­et­ized sanc­tions.

Once this so­ci­olo­gic­al ana­lys­is has been car­ried out re­gard­ing the gov­ern­ment­al im­plic­a­tion of pen­al fines, the pro­ject also pro­poses a spe­cific­ally leg­al dog­mat­ic study of their reg­u­la­tion, tak­ing in­to ac­count is­sues that have tra­di­tion­ally been ad­dressed by leg­al schol­ars but ana­lys­ing them from an in­nov­at­ive point of view. This ap­proach is based on the new mean­ings of money in con­sumer so­ci­et­ies, tak­ing as a case study the pen­al fines im­posed on cor­por­ate of­fend­ers, a sec­tor in which fines have in­deed be­come very large and very prom­in­ent. It also ad­dresses oth­er as­pects that have not tra­di­tion­ally re­ceived at­ten­tion from jur­ists: in par­tic­u­lar, the en­force­ment pro­ced­ure of the fine. This in­cludes as­pects such as which au­thor­ity is re­spons­ible for im­pos­ing the fine, what re­sources are avail­able to it, where the sum of the fine goes, how the au­thor­it­ies im­ple­ment the in­creas­ingly fre­quent ob­lig­a­tion to give the sum of the fine to vic­tims’ as­so­ci­ations or sim­il­ar pur­poses, and to what ex­tent this con­trib­utes to help­ing the vic­tims or pre­vent­ing crimes.

A great deal of evid­ence in­dic­ates that we are at the be­gin­ning of a new pen­al era. The emer­gence of new forms of so­cial con­trol and pun­ish­ment prac­tices as well as the ap­par­ent con­tra­dic­tion between the ex­pan­sion of tra­di­tion­al and new, al­tern­at­ive forms of pun­ish­ment call for ex­plan­a­tions. Europe is at the van­guard of elab­or­at­ing and im­ple­ment­ing such new forms of pun­ish­ment and is thus a cru­cial place for this re­search. The pro­ject in­cludes a com­par­at­ive and his­tor­ic­al leg­al ana­lys­is of Ger­many, Eng­land, Spain, Italy and, to a less­er ex­tent, Por­tugal, Aus­tria, and Switzer­land.

Fund­ing:

The pro­ject was fun­ded by the European Re­search Coun­cil, FP7, Mar­ie Curie In­tra-European Fel­low­ship (IEF) from 1-8-2013 to 31-8-2014.