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.
Status of project: Completed Project category: Research project Project languages: English Organizational status: Individual research project Department: Criminal Law (Prof. Sieber) Project duration: Project start: 2013
Project end: 2015
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.