Who Dares Fine a Murderer? The Changing Meaning of Money and Fines in Western European Criminal Systems

Money As the Measure of All Things

It is a generally accepted fact that the fine is a less severe punishment than imprisonment and that it is less severe even than other noncustodial punishments (Von Hirsh et al., 1992), which makes it unsuitable for punishing serious crimes. The reason for this is, apparently, quite straightforward. The commodity affected by the fine, money, does not have the same value as what is usually attributed to freedom. In Western societies, freedom and its deprivation have a phenomenal importance that money and fines do not. ¹ And yet, to explain the rise of the fine since the early 20th century, many authors argue that ‘money had become the measure of all things’, and therefore:

it was only right that the state, which extends positive privileges in the form of monetary grants, should also introduce the negative privilege of taking wealth away in punishment for delinquency. (Rusche and Kirchheimer, 1939: 168)

Simmel’s general view of money as an unconditionally interchangeable, qualitatively neutral, infinitely divisible and entirely homogeneous medium of exchange, expressing no value of its own other than as a representation of other objects (Simmel, 1990 [1907]), explains the 19th-century conceptualization of money as exclusively determined by quantity and free from any quality. Certainly, Simmel’s approach to money helps to explain the discrediting of the fine as a punishment for serious crimes since the end of the 18th century. As we will see, at that time, money no longer had personal connotations. It gradually came to be considered a universal equivalent, ‘a medium that could express the significance of any feature of human experience’ (Reddy, 1987: 77). Money became a widespread medium of exchange, despite the fact that it was possessed in large amounts by very few people. Nevertheless, his general approach to money does not explain other points, such as the indivisibility of the monetary unit when the fine is to be replaced with a subsidiary prison sentence. If money is allegedly divisible, does it really matter if a few unpaid cents are substituted by a day or an hour in prison? ² What about the concern that grew in the 19th century about how to prevent the fine from being paid by an innocent third party? ³ If money is impersonal, does it really matter who pays the fine? How can we explain the effort made to prevent the payment of the fine from affecting the most basic needs of the individual and his or her family? Or the late-18th- and 19th-century emergence of a school of thought that professed that the amount of the fine must be calculated so that it leaves the offender the means necessary to support himself – basically board and lodging but also the means and instruments necessary to carry out his trade or profession (Lardizábal, 1782: Chapter V, section V.5) – ‘excluding the amount that serves to satisfy pleasures, whatever these may be, such as wine, spirits and tobacco’ (Garofalo, 1887: 108)? Again, if money is unlimited and easily substitutable, does it really matter what the offender and his or her family have to deprive themselves of to pay it?

The answer is yes. It does matter. Zelizer (1997: 18 ff.) points out that Simmel’s general viewpoint fails to capture the complex range of characteristics of money as a social medium. For her, in certain domains another coding is necessary, for the money used there can be indivisible, non-fungible, deeply subjective and, therefore, qualitatively heterogeneous. This perspective is not embodied in Simmel’s general approach to money, but in his much more nuanced study of money as a punishment, contained in the fifth chapter of The Philosophy of Money. He recognized there that ‘fines can, in fact, produce an individual trait that is alien to money as such’, overcoming the classical underestimation of the importance of individuals’ perceptions of how they actually use money. Following this approach, my argument is that one of the domains Zelizer refers to is the criminal law, where money’s significance thus lies in the synthesis it promotes between impersonal abstraction and the principle of personality of penalties, qualitative neutrality and the very different cultural resonances and connotations of imprisonment and fines, absolute interchangeability and the impossibility of substitution of long custodial sentences by fines.

Equating Money and Freedom Through Criminal Law

In criminal law, loss of money is the bearer of qualitatively different meanings compared with loss of freedom. One should rationally conclude that money cannot be equated with freedom. However, the criminal system establishes rates of exchange between the time deprived of freedom and the payment of a sum of money using two approaches: firstly, through the mechanism of imprisonment by default; secondly, through substituting the originally imposed prison sentence with a penal fine. One could think that Marx was right when he warned that money:

confounding and compounding […] all natural and human qualities […] serves to exchange every property for every other, even contradictory, property and object: it is the fraternization of impossibilities. (1975 [1844]: 325–326)

Yet, when we analyse the rationale of these equivalences, we can see that it is not actually a matter of equating an amount of money with an amount of time. Money and freedom are not interchangeable because they are thought to have equal value, quite the opposite. Regarding imprisonment for fine defaulters, the offender must be threatened with a prison sentence that is more severe than the fine. Imprisonment by default ensures that the offender will pay whatever fine is levied. The purpose of imprisonment here is not to punish the offender but to coerce collection of the fine. The idea being that if there is no difference in severity, the offender will be indifferent between the two forms of punishment. The very premise of the established equation between time and money is thus to reinforce the use of fines as a method of punishment.

The substitution of (usually short-term) prison sentences by fines is also based on the superiority of fines to imprisonment, namely, on the belief that the benefits gained from short-term prison sentences in preventive terms are not as great as the damages caused to both the offender and society through imprisonment. It is impossible to speak here of an essential equality of all trading goods and, therefore, of the neutrality of money and monetary exchange.

In sum, the establishment of rates of exchange between time and money through imprisonment for fine defaulters or the substitution of short-term prison sentences by fines fails to consider any equivalence between the fine and the period of the deprivation of freedom, although in both cases the fine remains articulated to imprisonment through the metrics of quantity.

As in the cases mentioned before, it could also be deemed necessary to establish some equivalence between time and money when it comes to defining criminal law, when the legislator decides which punishment is the most appropriate for each offence. Sadly enough, just then penalties are not themselves the product of an accurate theoretical analysis and calculation but only the roughest of guesses, too often influenced by extralegal considerations, such as political concerns, social fears or moral panics. We cannot extract any equation from penal codes.

Only the Law and Economy movement has strongly defended the notion that fines and imprisonment are perfectly equivalent in terms of punitivism. As Posner said:

[f]or every prison sentence there is some fine equivalent; if the fine is so large that it cannot be collected, then the offender should be imprisoned. (1980: 415-–416)

Why Is the Fine Inappropriate to Punish Serious Crimes?

Several thinkers have raised this question in different times and places (see Doob and Marinos, 1995; Marcos Gutiérrez, 1826; Marinos, 2005; Young, 1989). Its persistence on time shows that relationships between money and punishment are complex. There exist a certain number of crimes in which the use of money as the only means of punishment is rejected, purporting that fines are not equitable with all prison sentences, but just short-term sentences. Not because ‘there are some things which are still placed beyond the reach of monetary exchange’ (Young, 1989: 65). Nor because ‘the whole development of the value of life out of predominantly Christian doctrine is based on the idea that man has an absolute value […]’ that ‘cannot possibly be measured by any quantitative standard and cannot be compensated for merely by more or less of another value’ (Simmel, 1990 [1907]: 360). In most areas of law, human life, health, freedom and dignity – the highest and most sacred human values – are routinely rendered into monetary amounts. ‘Thus the priceless itself surrenders to price’ (Zelizer, 1997: 8). Only in the field of criminal law is imprisonment seen as the only proper punishment when crimes affect central aspects of our notion of ‘personhood’, with fines failing symbolically to serve the functions of punishment for such crimes.

This was not always the case. It is true that the widespread rejection of punishing serious crimes with just a fine was supported by specialized literature since the 19th century – normally without explanation for this rejection, as it was considered to be so obvious that there was no need for clarification (e.g. Bumke, 1928: 16-–17; Friedmann, 1892; Wahlberg, 1877). It is also apparent right from the very first criminal statistics. For example, from 1891 to 1895 in Italy, the fine was imposed as a single punishment in 14.10% of cases, mostly for minor offences (Direzione Generale della Statistica, 1899: XXVI–XXVII). In turn, in England, aggregate figures for the lower court’s use of sanctions for non-indictable offences are not easily available for this period, but it seems that the fine was the predominant sanction used only in these cases (Garland, 1985: 8). However, this situation clearly differs from the one under ancient Celtic, Slav and Germanic laws. These laws, under the ‘lex talionis’, considered the deprivation of money through a fine or confiscation, together with redressing the damage, as punishment enough even for the more serious crimes. ⁴ Talio is Latin for ‘equivalent to’ or ‘equal’ so that the lex talionis requires punishment equal to the offence. It is interesting to know, however, that this concern for equality between the offence and the punishment of the offender was expressed during the Middle Ages in lists that assigned a monetary value not only to every part of the human anatomy but also to human life, in accord with the severity of the injury and with the status of the person injured or slain, for example, whether the victim was freeborn, a slave, an aristocrat, male or female, adult or child. That is to say that the level of payment for such debts was specified by a hierarchy of value by which an individual’s position and status in society were established. Simmel explained that:

[t]his tendency not only makes money the measure of man, but it also makes man the measure of the value of money. (1990 [1907]: 356)

The solution adopted initially – for example, in the French Penal Codes 1791 and 1810 – was the establishment of tariff and fixed-fine systems. They were compatible with one of the possible interpretations of the principle of equality of all men in the eyes of the law – equal treatment for all persons who had committed the same crime (what Whitman, 2003: 51 calls act-egalitarianism). However, they did not pay attention to the social and financial status of the offender, although in fact the same amount affected offenders very differently according to their wealth. Following the commonly accepted axiom quod non habens in bonis luat in corpus – ‘let him who has nothing in purse pay in person’ – imprisonment for fine defaulters was the consequence of non-payment.

The first regulations of imprisonment for fine defaulters in European penal codes were applauded. This positive viewpoint presumed, of course, the offender’s ability to pay. In fact, many believed that offenders would rather go to prison than pay the fine (e.g. Castro y Orozco and Ortiz de Zúñiga, 1848: 163; Maffei, 1875: 405–406; Rosenfeld, 1890: 207). However, the stronger impact that the fine had on offenders with scarce or no financial means soon became apparent. Many authors observed that most offenders did not pay the fine because they simply did not have the means to do it. For example, in Italy, it was well known that the pecuniary punishments were imposed on the poor only pro forma, since in reality they turned into prison sentences, as the fines inevitably remained unpaid (Florian, 1934: 807). In Spain, it was argued that in 90% of sentences, the fine was misleading, because the offender then proceeded to declare himself insolvent (Armengol Cornet, 1894: 57).

Imprisonment for cases of fine default became widespread. Stooβ (1907: 243) stated that in 1890 in Switzerland there were 7418 people in prison for the non-payment of fines compared to 5418 people who had originally received a custodial sentence. He later found that the gap in these figures closed over time (Stooβ, 1916: 2–3). Von Liszt (1889b: 742), in Germany, also said that in the majority of cases the fine became a short-term prison sentence due to non-payment. However, there were no data on this matter in the imperial statistics. It was simply stated in 1884 that the fines that became prison sentences made up a ‘not insignificant’ percentage (Reichs-Justizamt und Kaiserlichen Statistischen Amt, 1898: 14). According to a study concerning the situation of the Grand Duchy of Württemberg between the years 1888 and 1892, approximately 34% of the fines handed out turned into prison sentences or were recorded as bad debts, 41% were paid and 25% were immediately substituted because of the offender’s insolvency (Rettich, 1894: 507).

The late-19th-century criticism of short-term prison sentences extended to this form of fine substitution, usually a short-term imprisonment (Felisch, 1895: 300 ff.; Stooβ, 1916). In this way, Ferri stated forcefully that:

substituting fines with imprisonment is an iniquitous leftover of barbaric laws, which allowed the debtor to first be ripped to shreds by his creditors and then personally arrested for debts, and which civilisation makes impossible today. (1900: 454)

Imprisonment was considered a more equal punishment than the fine. As King explained:

the acceptance of the penalty of imprisonment first relegated the fine to a comparatively minor role as a punishment for light misdemeanours and police offences. (1996: 64)

At the same time, the monetary penalty was regarded and experienced differently because of the changing meaning and value that liberal societies attributed to money and, correspondingly, to its deprivation in the form of a fine:

the progressive differentiation of people and the equally progressive indifference of money combine to make expiation for murder and other serious crimes by money completely impossible. (Simmel, 1990 [1907]: 365–366)

Furthermore, the undifferentiated quality of money makes it impossible to establish whose money is paying a fine imposed to the condemned criminal. For a large part of the 19th century, in some cases well into the 20th century, several European countries permitted payment to be made by third parties. Examples include the Spanish Penal Codes 1870, Article 132, and 1928, Article 192; the Prussian Allgemeines Landrecht 1794, section 363, the Prussian Penal Code 1851, section 20, and the Imperial Criminal Code 1871, section 30; or the Austrian Penal Code 1852, section 527. These provisions were justified on two different bases: either the fine is a punishment imposed against the offender’s wealth and not his or her person – thereby the fine is imposed as an ‘impersonal’ sanction, a thesis known as the theory of non-personality, or Unpersönlichkeitstheorie, for example, Waldthausen (1881: 395) – or the fine becomes a civil or public duty as soon as the offender is sentenced or as soon as he or she dies – the obligation theories, or Obligationstheorien, for example, Heffter (1833: 211–212), Berner (1857, 1869: 15–16), Bozi (1896: 258) or Rauh (1912: 34). In the first case, a third party may pay it. In the second case, it may be transferred to the offender’s heirs.

This dominant line of thought was broken after 1870, when Puccioni (1855: 318) and Carrara (1871: 462) in Italy, Silvela (2003 [1886] 67–75) in Spain, Wahlberg (1877: 249–250) in Austria, Stooβ (1878: 20) in Switzerland, and Von Liszt in Germany (1911: 290), emphatically stated that passing the fine on to the offender’s heirs was a ‘national injustice and immoral’. In addition, the 7th International Penal and Penitentiary Congress held in Budapest in 1905 declared that ‘the fine is not to be exacted from the heirs of a deceased delinquent’. This doctrinal view was included in the corresponding pre-legislative texts of the respective countries. Hence, the preliminary draft of the Swiss Penal Code of 1893, written by Stooβ (1893: 81); the drafts of the Spanish Penal Code of 1882, submitted to the Senate by Alonso Martínez, and of 1884, by Silvela; and the draft law amending the German Penal Code submitted to the Reichstag in 1909. The definitive argument to this effect was the personality principle of penalties:

[F]rom the aim of the penalty the highly personal nature of the penal proceedings is deduced and, consequently, the need for the penalty to befall the perpetrator of the offence. (Von Liszt, 1911: 290)

It is also interesting to point out that, although this is not the place to develop the argument, the perceived leniency of money sanctions strongly influenced the rise of regulatory law. And that disarticulation of the regulatory fine from the possibility of imprisonment for default is its most vital characteristic (O’Malley, 2009: 73), leading to other consequences, the most important of which is the lack of concern for adapting the fine to the offender’s financial circumstances, unlike what happened with the penal fine (Faraldo-Cabana, 2014, 2015). It is not in any sense that the money sanction applied as a regulatory fine is meaningless. Quite the reverse, it has a different but none the less significant meaning. The difference between meanings of the regulatory fine and the penal fine seems to lie in the establishment of regulatory law as a form of regulation of sheer volumes of minor infractions through the monetization of the sanction. The use of fines makes it possible to reduce safeguards and protections for the defendant because fines do not affect liberty, not even in the case of non-payment (O’Malley, 2009). In short, it is not necessary to adjust the fine to the offender’s financial situation because the consequence of non-payment is not imprisonment. Added to this is the fact that calculating the offender’s financial ability to pay would excessively complicate a procedure that is required to be expeditious and if it has been possible to establish it as such it is, precisely, because the fine is the regulatory sanction par excellence.

In fact, since the separation began between regulatory law and criminal law, there has been a unanimous proposal to punish infringements of the first – mala quia prohibita – via a fine, with imprisonment being reserved as a punishment for penal offences of greater ethical importance – prohibita quia mala – (Merkel, 1893: 340; Saltelli, 1939: 703). As O’Malley puts it:

[i]n this way, ‘decent citizens’ would avoid stigmatization as the money penalty was given a certain ‘acceptable’ meaning by linking it to what Rusche and Kirchheimer might regard as a ‘technical’ question: distanced from bad motives and moral condemnation; distanced from the taint of prison that demolished good character. (2009: 97)

The 20th century would see no fundamental change in this regard, despite the effort made to adapt the penal fine – albeit not the regulatory one, as we have seen – to the offender’s economic circumstances.