Although theoretical work on the concept of punishment still focuses almost exclusively on custodial sentences (i.e., imprisonment), statistics show that the principal penalty employed by European criminal justice systems – at least in quantitative terms – is the fine. In Germany, for example, approximately 80% of criminal penalties imposed on individuals are fines. These monetary punishments have significant advantages over imprisonment: they are less desocializing, relatively economical, and easy to administer. Moreover, they can be adjusted to reflect the extent and severity of the defendant’s culpability and – by means of variable daily rates – to accommodate his or her economic situation. Despite their many advantages, however, fines also exhibit a fundamental weakness. Since the enforcement of a fine does not involve a personal, non-transferable good (life, liberty, or physical integrity) but a highly transferable one (money), it is not uncommon for there to a lack of identity between the sentenced person and the person(s) who, in the final analysis, bear the cost. Take, for example, employers who pay the fines imposed on employees convicted of crimes committed for the benefit of the company or defendants who pay their fines themselves but pass the burden on to their families by cutting expenses and thus negatively affecting their quality of life. In both of these cases, the fine ceases to be a personal punishment since the subject of the censure and the subject of the pecuniary detriment do not coincide. On the one hand, transferring the burden of a fine is unfair to those are made to suffer for a crime they did not commit. On the other hand, the trivialization of monetary punishment – namely, accepting transferal of its burdens to third parties – is an important barrier to the desirable progressive replacement of custodial punishments with fines.
In response, the objectives of this project are twofold. The first is to analyze whether, as some authors suggest, the fine as a sanction is qualitatively different from imprisonment and, if it is, whether it should be governed by different principles. Does it really matter who pays the fine or is not the fine rather an impersonal sanction from the very beginning? The second – assuming that the fine must be viewed as a personal punishment so that the subject of the censure and the subject of the pecuniary detriment are one and the same – is to analyze the legal options for minimizing the risk that the burden associated with a fine will be transferred to third parties. In particular, the project will study whether it might be possible for the payment of a fine by a third party to be construed as an obstruction of justice. By examining the foundations of (monetary) punishment and the methods applied to achieve its non-transferability, also from a transnational perspective, this project will advance several key aspects of the research agenda of the Department of Criminal Law.
Expected outcome: One article in English and two in Spanish (2020–2021).