Table of Contents
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Introduction 398
I. The Extensive Use of Poverty Penalties in Comparative Practice 402
A. Fines 403
1. The Use of Fines as a Sanction 403
2. The Wide Variation as to Whether Fines Are Scaled to Defendants’ Finances 405
B. Costs, Fees, and Surcharges 407
C. Poverty Penalties and Intersectional Oppression 409
II. The Consequences of Poverty Penalties in Comparative Practice 412
A. Imprisonment for Failure to Pay Fines 412
B. Imposition of Additional Financial Penalties 415
C. Other Legal Sanctions 416
III. Poverty Penalties in International Law 417
A. Early Attention and Early Neglect 418
B. Between Criminal Justice and Human Rights 420
C. Recent Developments 424
IV. Implications 427
A. Human Rights Law and Beyond 427
1. Imprisonment Due to Inability to Pay as a Human Rights Concern 429
2. Other Human Rights Concerns Regarding Poverty Penalties 430
3. Poverty Penalties as an Obstacle to Criminal Justice and to Poverty Eradication 433
B. International Practice 433
1. Increasing Salience and Transparency 434
2. Promoting Substantive Changes 435
3. Avoiding Pitfalls 438
V. Conclusion 440
Introduction
Consider the following facts, drawn from practice around the world. In the United States, a Black woman who could not pay a $150 parking fine faced arrest warrants and close to $1000 in late fees.Footnote 1 In China, a rural family could not afford the fine for violating the then-applicable one-child policy, leading authorities to confiscate all their crops and the father to commit suicide.Footnote 2 In Brazil, the penalty for drug importation is years of imprisonment and a high mandatory minimum fine—and inability to pay this fine results in the deprivation of more rights.Footnote 3 In Kenya, the use of plastic bags triggers a minimum fine of two million shillings, which is ten thousand times as much as the daily income of a third of the population.Footnote 4 In Switzerland, “roughly one half of prison entries concern fine defaulters.”Footnote 5
These accounts all implicate the intersection of financial penalties and poverty. States frequently impose financial sanctions on individuals. And unless these sanctions are perfectly calibrated to financial circumstances, they have the effect of punishing poor persons more heavily than rich ones—both by their initial impact and through the further penalties that follow from failure to pay, such as imprisonment, added fees, property forfeiture, or deprivation of other rights. We call these “poverty penalties,” for they amount to additional punishment on low-income persons.Footnote 6
Poverty penalties are deeply troubling. They have the effect of discriminating based on economic status. They lead frequently to imprisonment, as this is the consequence for non-payment of financial sanctions in many countries. They can result in grossly disproportionate punishments, as when fines for minor offenses vastly exceed what poor defendants are able to pay. Moreover, in a world where “[e]nding poverty in all its forms” is the very first Sustainable Development Goal,Footnote 7 it is counterproductive and oppressive for states to overburden poor persons with financial sanctions.
Yet it is striking how little international attention has been paid to poverty penalties in modern times. The drafters of the Universal Declaration of Human Rights and of subsequent universal human rights treaties did not include specific provisions banning excessive fines.Footnote 8 With no specific language on financial sanctions to serve as a focal point, international human rights attention has focused heavily on other aspects of criminal punishment. Even the widespread practice of imprisoning persons for inability to pay financial penalties has flown largely under the radar. The UN Office of Drugs and Crimes is aware of this practice, but it does not collect data on this issue in its periodic survey of criminal justice systems.Footnote 9
This Article focuses on surfacing poverty penalties as a matter for international concern. The timing is ripe for at least two reasons. First, poverty penalties are increasingly attracting domestic and regional scrutiny. By way of example, reform efforts are underway in the United States, South Korea, and Ghana, and scholars are studying the ways in which “day fine” systems—which aspire to equalize the effect of financial sanctions across income levels—are or are not living up to these goals.Footnote 10 Yet the uses and consequences of poverty penalties have not been adequately studied through a global lens. Second, recognition of poverty penalties has started to emerge in international human rights discourse in the twenty-first century, most notably as one of many recommendations in the Guiding Principles on Extreme Poverty and Human Rights adopted by the Human Rights Council.Footnote 11 But while the seeds have been planted, they remain mostly nascent.
The first contribution of this Article is a description of comparative practice. It looks to legal systems around the world and shows that poverty penalties are widespread but can take very different forms. Countries vary sharply in whether and how they consider individual financial circumstances in imposing financial sanctions and also in how much they add on other costs, fees, and surcharges. They also differ in how they respond to non-payment, with many countries using imprisonment as a sanction. In other countries, non-payment can trigger other penalties, including snowballing collection costs, revocation of driver's licenses, and deprivation of political rights. In general, poverty penalties often fall heavily on persons who are already vulnerable for reasons besides poverty, such as race, religion, gender, or disability.
This Article's second contribution is also descriptive, but from an international rather than comparative perspective. Remarkably, the most high-profile international discussion of poverty penalties to date took place all the way back in 1905, at a major international conference of criminal justice reformers.Footnote 12 Later international human rights instruments omitted reference to “excessive fines,” and the issue of poverty penalties was neglected in both the criminal justice and the human rights communities of the United Nations. This is now starting to change, as domestic and international rights advocates increasingly recognize the widespread impacts of poverty penalties. But it remains to be seen whether this is the cusp of a “norms cascade.”Footnote 13
Third, this Article argues that poverty penalties should receive greater attention as a matter of human rights law, and also within international discourse around poverty reduction and criminal justice reform. The human rights guarantees around equal protection, non-discrimination, the avoidance of arbitrary detention, and an adequate standard of living are all implicated by poverty penalties. We argue that imprisonment due to inability to pay raises grave human rights concerns. We also identify four other circumstances where poverty penalties are particularly problematic: where they serve as grossly disproportionate sentences; where the consequences of non-payment are likely to trigger severe further poverty penalties; where the imposition of poverty penalties heavily impacts groups that are otherwise specially protected by human rights law; or where the poverty penalties are notably higher than state interests in administrative convenience can justify. Given the importance of the issue, international actors should try to gather more information about poverty penalties and provide opportunities for states to discuss best practices and further reforms.
The rest of the Article proceeds along the lines described above. Part I defines our use of “poverty penalties” and provides comparative analysis of how poverty penalties are used in criminal sentences. Part I also discusses how poverty penalties can particularly affect groups that are vulnerable for reasons beyond poverty, including along lines of race, religion, gender, or disability. Part II describes how further poverty penalties can arise from non-payment, including imprisonment, more financial sanctions (such as late fees, interest, and collection costs), the deprivation of other rights or benefits, and the forfeiture of property. Part III moves from a comparative to an international lens. It describes the past neglect of poverty penalties in international discourse, including the absence of specific treaty provisions focused on excessive fines. It also shows that human rights actors are increasingly paying attention to poverty penalties and suggests the development of a norm may be underway. Finally, Part IV argues that poverty penalties can be matters of serious human rights concern—including imprisonment due to inability to pay. It also identifies ways that the international human rights and criminal justice communities can raise awareness around poverty penalties and develop best practices aimed at minimizing them.
We emphasize that this Article is not comprehensive in its description of practice around poverty penalties. Indeed, one research challenge has been the difficulty in identifying state practice, especially given the relative lack of international attention to this topic and the high variance that can occur not only between but also within countries. In some cases, we have found scholarly work detailing state practices, but much of our work has involved reviewing state constitutions and criminal codes, conversing with local practitioners, and scouring the Internet for references to on-the-ground cases. Over the course of this Article, we reference law or practice in many countries, including (among others): Australia, Brazil, China, Croatia, Denmark, Democratic Republic of the Congo, France, Germany, Ghana, Great Britain, Hungary, India, Japan, Jordan, Kenya, Mexico, Nicaragua, Nigeria, Papua New Guinea, Poland, Qatar, Romania, Russia, South Korea, Switzerland, and the United States.Footnote 14 These references reflect small windows into the countries’ practices and inevitably miss many nuances.Footnote 15 We also do not attempt to evaluate whether poverty penalties are typically worse in certain kinds of jurisdictions (such as common law states or federalist states or states in particular geographic regions). In short, we have only scratched the surface of research on the use of poverty penalties around the world. Indeed, as discussed in Section IV.B.1, one of the most important takeaways from this Article is the need for more information.
I. The Extensive Use of Poverty Penalties in Comparative Practice
We use the term “poverty penalties” to refer to monetary sanctions that disproportionately burden lower-income people and to the cascade of adverse legal consequences that can flow from these disproportionate sanctions. Our definition of poverty penalties thus includes fines that are not scaled to financial circumstances; fixed court costs and other surcharges; the use of imprisonment as a consequence of inability to pay; and other sanctions imposed for inability to pay, such as late fees, interest charges, forfeiture, and deprivation of rights. Our use of this term draws from scholarship focused on U.S. practice but differs from this scholarship by including fines (and other initial financial penalties) that are designed in ways that inordinately burden lower-income persons.Footnote 16
This Part focuses on describing comparative practice with respect to the first part of our definition—the imposition of monetary sanctions that disproportionately burden lower-income people. Part II subsequently describes comparative practice with respect to the second part of our definition—the cascade of adverse legal consequences that can flow from these disproportionate monetary sanctions, including imprisonment for failure to pay, the imposition of more monetary sanctions, and the revocation of various rights and privileges.
Among monetary sanctions, the paradigmatic form of poverty penalties is the use of fines. Unless fines are perfectly scaled to the financial status of defendants, they will disproportionately burden lower-income persons. The bulk of this Part therefore describes how fines are set in countries around the world. This Part also briefly describes the practice in at least a few countries, most notably the United States, of burdening defendants with another kind of poverty penalty: fixed costs, fees, or surcharges that are separate from fines. The Part closes by describing how poverty penalties can disproportionately impact persons who are already vulnerable for other reasons, including race, religion, gender, or disability.
A. Fines
Fining practices vary around the world. Countries differ in the offenses for which they impose fines and in the extent to which they impose fines as sole penalties or as additions to other penalties (such as prison sentences). Countries also differ as to the extent that fines are “fixed”—that is, a certain offense is punishable by a fine of a specific amount of money—or instead vary based on any number of subjective or objective criteria, potentially including the defendant's financial circumstances.
1. The Use of Fines as a Sanction
Fines are a common sanction. As described below, criminal codes frequently require or authorize judges to impose fines—sometimes standing alone and sometimes in combination with other penalties such as imprisonment.Footnote 17 While fines seem like a distinct penalty from imprisonment, these two penalties are often intertwined in practice for lower-income people.
Criminal codes sometimes make fines the only penalty for certain offenses. For example, Pakistan's Penal Code specifies that intentionally publishing false statements about election candidates “shall be punished with fine.”Footnote 18 In Japan, someone who causes injury through negligence “shall be punished by a fine of not more than 300,000 yen or a petty fine.”Footnote 19
Criminal codes also frequently give judges discretion about whether to impose a fine, a term of imprisonment, or both. Ghana's Criminal Procedure Code, for example, provides that: “Where a person is convicted of any felony or misdemeanour or any offence punishable by imprisonment (other than an offence for which the sentence is fixed by law) the Court may, in its discretion, sentence him to a fine in addition to or in lieu of any other punishment to which he is liable.”Footnote 20 In cases involving non-fatal suicide behavior—which is criminalized in Ghana—judges have sentenced defendants to a combination of custodial sentences and fines.Footnote 21 As another example, Chinese law provides that fines are “supplementary punishments” but also “may be imposed independently.”Footnote 22
Criminal codes often also identify offenses for which both incarceration and a fine is required. In Turkey, someone convicted of illegally helping a non-citizen enter or remain in the country for the purpose of material gain “shall be sentenced to a penalty of imprisonment for a term of three to eight years and a judicial fine of up to ten thousand days.”Footnote 23 Ethiopia's Criminal Code provides that the crime of illicitly trafficking in gold, currencies, or foreign exchange “is punishable with rigorous imprisonment not exceeding ten years, and fine not exceeding fifty thousand Birr, without prejudice to the confiscation of the subject matter of the crime.”Footnote 24 Japan punishes acceptance of stolen property with “imprisonment with work for not more than 10 years and a fine of not more than 500,000 yen.”Footnote 25 In Brazil, many crimes listed in the Penal Code indicate a penalty of a period of detention as well as a fine.Footnote 26
Finally, in practice, criminal law systems frequently allow rich defendants to pay fines while sending poor defendants to prison. Sometimes, sentencing practices explicitly incorporate this difference. The Brazilian Penal Code, for example, provides that “[i]n the case of a conviction equal to or less than one year, the replacement may be made by a fine or a penalty restricting rights.”Footnote 27 Replacement through a fine of course requires the means to pay a fine. In Kenya, sentences apparently can be given explicitly in the alternative—such as two years in prison or a fine of Kshs. 50,000.Footnote 28 Again, such a choice exists in practice only for defendants who can pay the fine. And even if the sole sentence is a fine, this will often have the effect of sending poor defendants to prison because, as discussed in Part II, many countries incarcerate defendants who are unable to pay off their fines. Therefore, unless fines are sufficiently scaled to financial circumstances, fines can be tantamount to prison sentences for lower-income defendants.
2. The Wide Variation as to Whether Fines Are Scaled to Defendants’ Finances
There is wide international variance in how fines are set. Different countries take different approaches as to whether and how their fine-setting methodologies ignore, authorize, or require consideration of defendants’ wealth (or of other matters related to the defendants’ circumstances). Some approaches have inherently regressive distributive effects by ignoring the defendants’ finances. Others protect lower-income persons in principle, but not always in practice.
Under “fixed” fine structures, offenses are punishable by specifically enumerated fines. Fixed fines are obviously poverty penalties, as lower-income persons will find it harder to pay them off than will rich persons. Minor offenses such as traffic violations can trigger fixed fines, as in some U.S. municipalities.Footnote 29
More commonly, criminal codes denote a minimum and/or a maximum fine that can be set. In Qatar, for example, there is a minimum QR3,000 fine for the offense of attempting to pay with a check that bounces.Footnote 30 In Kenya, the use of plastic shopping bags carries a minimum fine of two million shillings and a maximum fine of around four million shillings.Footnote 31 Like fixed fines, the use of mandatory minimums inevitably creates poverty penalties, as lower-income people will feel the sting of these minimums more keenly.
One issue that can arise with both fixed fines or statutory maximums and minimums is that the amounts do not keep pace with inflation or currency fluctuations. Some countries address this problem by using “penalty units” and then adjusting the value assigned to a penalty unit over time. Ghana adopted this system in 2000, in response to wide currency swings that made pre-existing fine amounts either laughably low or exorbitantly high.Footnote 32 Apparently, lawmakers intended that the conversion rate of one penalty unit into currency should amount to no more than one third of the monthly earnings for an average worker.Footnote 33 The use of penalty units deals with concerns about inflation and currency swings, but it still amounts to a poverty penalty because it remains constant for all defendants, rich or poor. When a penalty unit goes up, it goes up for everyone. And in practice, fines can get set in amounts higher than people can pay.Footnote 34
Except where fixed fines are used, judges typically have discretion in setting the amount of a fine, as long as they are within any statutory maximums or minimums. There is a wide range of practices in terms of how discretion is used and whether judges take defendants’ wealth into account. In India, for example, the Penal Code specifies that “[w]here no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.”Footnote 35 Case law has developed some guidelines for excessive fines, but the direction is still open-ended.Footnote 36 In many U.S. jurisdictions, fines are set without any hearing on a defendant's ability to pay—such a hearing is held only after the defendant has failed to make a payment, frequently with the burden on the defendant to prove their poverty.Footnote 37
Wide judicial discretion can allow judges to assign fines that are excessive, unfair, or inconsistent. In Brazil, for example, the vast majority of offenses in the criminal code specify only that there is a fine, not what the fine should be for that particular offense.Footnote 38 Brazilian courts are instructed to take into account a defendant's circumstances when justifying the sentence, but the onus is on the defendant to present evidence of those circumstances.Footnote 39 This lack of guidance and accompanying onus on the defendant can lead to inequitable results: one impoverished man arrested for possessing a few grams of hard drugs was sentenced following appeal to the starkly high fine of R$15,900, in addition to a prison sentence.Footnote 40 The practitioner we interviewed observed that because of this latitude, some judges exhibit a pattern of calculating the same fine (the same number of days at the same income level) for the same offenses, regardless of the defendant's circumstances.Footnote 41
Some systems of fining do require judges to set fines in proportion to defendants’ finances. Most notable is the “day fine” system used by some countries, including many in Europe.Footnote 42 Day fine values are first determined by the seriousness of the offense and then deliberately scaled in proportion to the defendant's financial situation. The sentencing authority identifies the number of days that the fine should last based on the severity of the offense and then sets the “daily unit” to be charged each day according to the defendant's finances.
If done perfectly, day fines would not be poverty penalties, as they would not place disproportionate burdens on lower-income persons. Because of this, we think the use of day fines has considerable promise and return to this topic in Part IV. But the day fines system has pitfalls as well. First, countries may be limited in how they use the day fines system—for example, some European countries that are nominally on the day fines system make use of fixed fines as well.Footnote 43 Second, the details of how a country structures its day fines system matter. Where countries measure defendants’ financial situations using income instead of wealth, for example, day fines will continue to fall disproportionately on lower-wealth persons.Footnote 44 Third, the effectiveness of the day fines system depends on the quality of the governmental structures supporting it. When Poland adopted a day fines system after the end of the Cold War, for example, judges found the system too complicated and challenging given a rampant underground economy that made income calculations extremely difficult.Footnote 45 Similarly, as a recent report on Germany indicates, judicial discretion and limited available financial information frequently cause daily rates to be set at unmanageable levels; in 2018, 7,600 people entered German prisons for failure to pay their fines for the petty crime of fare evasion.Footnote 46 In short, poverty penalties can persist even under a day fines regime.
B. Costs, Fees, and Surcharges
A related financial burden that criminal justice systems can impose disproportionately on lower-income persons comes in the form of costs, fees, and surcharges. These are distinct from fines in that they ostensibly seek to recoup costs from the defendants’ enmeshment in the justice system. As a result, they may not be directly tied at all to the underlying offense, but rather to the mechanisms of the justice system itself. They do not appear as prevalently as fines but are present in some jurisdictions.
U.S. state and local jurisdictions are perhaps the vanguard employers of these financial sanctions. States frequently outsource administrative costs of the judicial system to defendants, sometimes characterized as “user fees” for the defendants’ “use” of the justice system.Footnote 47 A Tennessean convicted of simple drug possession, an offense carrying a $250 fine, might find herself on the hook for as much as $946 in court costs like drug testing, arrest-related fees, and the services of a public defender, plus $1,035 paid to private companies contracted by the court to provide probation services.Footnote 48 Some U.S. states or localities go so far as to bill defendants for their own incarceration.Footnote 49
These added financial burdens can also take the form of “surcharges” which often bear little or no relationship to the actual costs associated with the defendant's case. In U.S. jurisdictions, these can include general surcharges for peace officer and prosecutor training, for funding local law libraries, and others with vague titles (e.g., “felony” surcharges, “criminal conviction” surcharges, and “Victim Penalty Assessment” surcharges).Footnote 50 The United Kingdom has imposed similar “victim” and “criminal courts” surcharges, sometimes on destitute defendants whose crimes arise from their poverty. These surcharges can exceed the fine for the crime itself; for example, in one case, “[a] 30-year-old homeless woman” who was convicted of “begging in a car park in Coventry, West Midlands” was “ordered to pay a £150 criminal courts charge, a £30 fine and a £20 victim surcharge.”Footnote 51 Kenya similarly imposes court fees “dependent on court activities and nature of matters,” and those charges are a source of revenue for the judiciary.Footnote 52 South Australia law requires criminal defendants who go to trial and are found guilty to pay $150 AUS per charge to the court as a “prosecution” fee.Footnote 53
Costs, fees, and surcharges fit squarely within the definition of poverty penalties. They explicitly attempt to shift the costs of criminalization onto defendants, frequently ignoring not only the payee's financial circumstances but often all other circumstances of their alleged offense, except that they have been hauled into court. For the purpose of explaining how poverty penalties function, we consider them together with fines, as they share many of the same qualities in the jurisdictions that make use of them.
C. Poverty Penalties and Intersectional Oppression
In many countries, the “under-the-radar” quality of poverty penalties makes them a means for oppressing members of vulnerable groups, including along lines of race, religion, gender, and disability. To the extent that these groups are disproportionately impoverished, it is inevitable that they will be affected more by poverty penalties. But this effect can be enhanced by discriminatory enforcement or by design choices that embed greater poverty penalties into certain types of offenses.
In the United States, considerable scholarship demonstrates how poverty penalties are disproportionately inflicted upon Black and Indigenous communities.Footnote 54 The Ferguson Report produced by the U.S. Department of Justice's investigation of the police department in Ferguson, Missouri, for example, found that local police brought certain low-level charges “almost exclusively against African Americans”; Black Americans comprised 95 percent of all “Manner of Walking in Roadway” charges and 94 percent of all “Failure to Comply” charges, despite comprising only 67 percent of Ferguson's population.Footnote 55 Investigators found that this discrepancy was a result of racial bias on the part of officers.Footnote 56
Similarly, in Europe, fines have sometimes been used specifically and intentionally against the members of the Roma ethnic minority. An instance of this was described in the 2017 Hungarian Supreme Court case between the Hungarian Civil Liberties Union and the Heves County Police Headquarters, where the court ruled that the police committed direct discrimination against the Roma community through the department's petty offense practice and related fines that disproportionately targeted the local Roma population.Footnote 57 In that case:
Vigilante groups descended on the Hungarian village of Gyöngyöspata for two months in 2011, forming “patrols” and harassing local Roma inhabitants. Rather than intervening to protect the villagers, the police started imposing fines on Roma for the most minor offences, following an apparently deliberate practice of singling Roma out for this treatment. . . . [The trial court] held that the police by means of its petty offense practice engaged in direct discrimination against members of the Roma community in Gyöngyöspata.Footnote 58
Another instance recently litigated in the European Court of Human Rights involved an unhoused Roma woman in Switzerland, who was charged 500 Swiss francs for begging in the streets and sentenced to five days in prison when she was unable to pay.Footnote 59 (The Court did not reach her claim that she was singled out as an ethnic minority, instead deciding the case on the basic guarantee of dignity enshrined in Article 8 of the European Convention on Human Rights.Footnote 60)
Even in European countries that make significant use of day fines, other kinds of fines have been the tools of choice in campaigns to ban Muslim women from wearing religious dress. As of 2018, penalties for wearing clothing that conceals the face—a conspicuous statutory proxy for the traditional Muslim niqab and burqa—included €15 to €25 (multiplied by a factor of 5.5) and/or up to a week in jail in Belgium; up to 1,500 levs in Bulgaria; 1,000 kroner in Denmark; up to €150 and/or a requirement to take citizenship classes in France; and up to €150 in Austria.Footnote 61
More recently, France also used fines to impose pandemic lockdown restrictions, allegedly applied discriminatorily toward minority groups. By using only fines as penalties, the government could bypass traditional due process protections: “the penalty notices [we]re processed through a simplified legal procedure resulting in convictions without a hearing, a trial, or an opportunity to be defended by a lawyer.”Footnote 62 These penalties pushed those individuals further into poverty and sometimes into thousands of Euros of debt—and simultaneously blemished their record, causing those individuals to be turned down from work and thus making it nearly impossible for them to lift themselves out of debt.Footnote 63 Similar lockdown-related fines were employed in the United Kingdom, where an investigation found that racial minorities in England were 54 percent more likely to be fined.Footnote 64
As the example of face coverings suggests, poverty penalties can also target or disproportionately harm women.Footnote 65 A recent study in the U.S. state of Washington found that rates of female incarceration were higher in those counties that relied most heavily on fines and fees for revenue—suggesting that aggressive poverty penalties affect women particularly strongly.Footnote 66 Even when women are not themselves fined, a recent study in Alabama suggests that they are disproportionately likely to pay fines for others, such as a relative.Footnote 67 Poverty penalties can also sometimes reinforce male supremacy. A study of municipal courts in Papua New Guinea in the 1980s and early 1990s, for example, described various ways in which these courts would use fines or other financial penalties to give husbands more control over their wives.Footnote 68 In the Democratic Republic of the Congo, “female rape survivors [have] sometimes [been] forced to pay a fine to return to their families and to gain access to their children.”Footnote 69
Finally, poverty penalties can intersect with other forms of vulnerability, including disability. A 2017 report by the Australian Law Commission pointed to testimony that “fines have disproportionate and serious adverse impacts on disadvantaged sections of the community: Indigenous Australians, the young, homeless, the welfare dependent, mentally ill, people with intellectual disabilities and prisoners.”Footnote 70 Not only were these “groups . . . more vulnerable to being fined in the first place,” but “[t]hey are less likely to be able to pay [off] fines or to negotiate the processes available to contest them or otherwise mitigate their impact.”Footnote 71 An investigation by a U.S. government commission similarly noted that fines and fees can particularly affect persons with disabilities, including where defendants are required to pay extra fees because of their disabilities.Footnote 72
In sum, poverty penalties not only place disproportionate burdens on lower-income people, but can also disproportionately impact individuals who are vulnerable for other reasons. And as this Part has shown, poverty penalties are common rather than rare, even though there is considerable variation across and sometimes within countries about when fines and other fees are imposed and to what extent, if any, the defendants’ finances are considered. Moreover, as the next Part will show, the imposition of fines and other fees is just the beginning of the poverty penalties placed upon lower-income defendants. The collection process leads swiftly to further inequities.
II. The Consequences of Poverty Penalties in Comparative Practice
Poverty penalties are iterative. Fines or fees that disproportionately burden lower-income people are poverty penalties in and of themselves. And all too often they lead to other poverty penalties—further sanctions that accrue because people lack the immediate means to pay off their fines and fees. The most serious of these sanctions is imprisonment, which is a frequent penalty for failure to pay. Other possible sanctions include: the addition of more financial penalties (such as late fees, interest charges, and collection costs); and other penalties such as the revocation of driver's licenses or forfeiture of property. These additional poverty penalties can occur singly or in combination with each other, and there is considerable variation across and sometimes within countries as to their use. This Part describes these additional poverty penalties.
A. Imprisonment for Failure to Pay Fines
Monetary sanctions are sometimes espoused as alternatives to imprisonment that reduce incarceration rates and decrease prison overcrowding. But in many countries, the standard consequence for default on payment of a fine is imprisonment either until the fine is paid or until a designated amount of time has elapsed. For lower-income persons, in practice this means that a nominal alternative to imprisonment instead often becomes a direct pathway to imprisonment.
Criminal codes frequently specify imprisonment as the consequence for failure to pay fines. In Jordan, the penal code stipulates that a person must serve time in prison that corresponds proportionately to the unpaid amounts.Footnote 73 If defendants do not pay fines imposed at sentencing, they are imprisoned for one day for every ten dinars or its fractions unpaid, so long as the term of imprisonment is one year or shorter.Footnote 74 Similarly, in Qatar, a person is imprisoned for one day for every one hundred riyals or less of their fines that are unpaid, with the condition that confinement not exceed seven days if it was an irregularity, and six months if it was a felony or misdemeanor.Footnote 75
In countries that employ day fines, imprisonment is frequently the default consequence of failure to pay.Footnote 76 In Denmark, Germany, Hungary, France, Croatia, Switzerland, and Romania, for example, each unpaid “daily unit” of fine converts to a day in prison.Footnote 77 Many of these countries allow for community service to replace these converted prison sentences, but others, such as Croatia, France, Germany, Poland, Romania, and Slovenia, make no such allowance.Footnote 78
In other countries, criminal codes give judges discretion to imprison defendants who fail to pay their fines. In Ghana, for example, the criminal code provides:
Where a person convicted of any offence is sentenced to pay a fine the Court may direct that if he fails to pay it within the time appointed for payment (which may be either forthwith or within a specified time, as the Court thinks fit) he shall suffer imprisonment until it is paid. Such imprisonment shall be in addition to any imprisonment to which [he] is sentenced for his offence.Footnote 79
Kenya and India have similar provisions.Footnote 80 In Kenya, the practice of imposing unpayable mandatory fines for certain offenses has become enough of a problem that even Kenya's official sentencing guidelines note explicitly that “[t]here are many instances where the fines are in effect excessive and offenders end up serving imprisonment terms in default of payment.”Footnote 81 The guidelines further remark that “even where the amount is minimal, indigent offenders are usually unable to pay and are imprisoned as a result.”Footnote 82 As another example of governmental concern, the Australia Law Reform Commission has expressed dismay about how Aboriginal and Torres Strait Islanders in particular are overrepresented in prisons for having defaulted on fines.Footnote 83
In South Korea, judges imposing fines are supposed to “simultaneously [decree] a substitute term of lockup at a workhouse when payment of such fine or minor fine is not made in full” within thirty days.Footnote 84 For unpaid minor fines, these substitute sentences can be for up to twenty days; for other unpaid fines, they can be for up to three years.Footnote 85 The Supreme Prosecutor's Office acknowledged in August 2022 that “[a]bout 93 percent of those currently serving a prison term because they couldn't pay a fine couldn't handle a fine of 5 million won . . . or less,” and about 60 percent could not pay fines of 1 million won or less.Footnote 86
The effect of these practices is that many lower-income people are going to prison as compared to their wealthier peers because they cannot afford to pay fines imposed on them. In some countries, the harshness of these practices is beginning to attract attention. In South Korea, a microcredit group started by the NGO Human Rights Solidarity has begun lending money to people who were unable to pay their criminal fines and were consequently sent to jail.Footnote 87 Its goal is to create a more equitable system where poor people are not imprisoned because of their inability to pay fines.Footnote 88 Similarly, in Ghana, the Crime Check Foundation, a Ghanaian NGO, launched the Petty Offenders Project in 2018 to pay the criminal fines for people who were charged with petty offenses, sentenced to pay fines that they could not pay, and subsequently ordered to serve between three and twelve months in prison for defaulting.Footnote 89
One way to reduce immediate imprisonment for failure to pay fines is to permit installment payment plans. This practice is authorized in many countries,Footnote 90 but it can be problematic for several reasons. First, even where the use of installment payments is authorized by the criminal code, defendants may not have access to it in practice. This appears to be the case in Kenya and Qatar.Footnote 91 Second, the option of installment payments is only really an option for defendants who can pay off their installments. It assumes access to a disposable income stream that will not exist for the most vulnerable members of a community. Finally, installment payments can become their own trap. In the United States, the Supreme Court held in the 1970s and 1980s that it was a violation of constitutional due process and equal protection to imprison defendants because they are unable to pay their fines.Footnote 92 These rulings provide important protections, even though violations by state and local courts are rampant.Footnote 93 But in recommending installment payments as an alternative, the Court failed to realize what is shown in the next Section—that installment payments can trigger self-reinforcing cycles that dig poor defendants ever deeper into debt.
B. Imposition of Additional Financial Penalties
In some countries, failure to pay fines and fees results in the imposition of additional fees, such as further fines, late penalties, interest charges, or collection costs. These additional fees can become self-reinforcing cycles, in some cases creating debts that lower-income defendants will never be able to pay.
U.S. states and municipalities make heavy use of these kinds of poverty penalties. In its Ferguson Report, the U.S. Department of Justice determined that “the City [of Ferguson] considers revenue generation to be the municipal court's primary purpose” and gave many examples of snowballing poverty penalties.Footnote 94 The investigators
spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. . . . As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.Footnote 95
Ferguson is one of many examples of U.S. states and municipalities that sanction people with heavy additional charges for missed payments, resulting in additional fines and fees.Footnote 96 Some efforts for reform are underway.Footnote 97
At least some other countries also use additional financial sanctions to penalize failure to make timely payments on fines. In South Korea, if someone is unable to pay their fine for a minor offense, they are required to pay the original fine plus an additional fine of 20 percent of the original penalty within twenty days of the original payment deadline.Footnote 98 If the person does not pay by this new deadline, the prosecuting authority can request a “summary trial” to impose an additional fine, and the individual can get the proceeding dismissed only if they pay the original penalty plus a 50 percent surcharge.Footnote 99 In France, surcharges can similarly add up quickly where initial fines are unpaid.Footnote 100
C. Other Legal Sanctions
In at least a few countries, the inability to pay fines and fees can lead to other legal consequences. This can include the revocation of driver's licenses, denial of access to public benefits, denial of the right to vote, and forfeiture of other property.
Many of these consequences are imposed by jurisdictions within the United States. Driver's license suspensions are common: “at least 11 million people [in the United States] are not allowed to drive simply because they cannot afford to pay fines and fees.”Footnote 101 In many U.S. states, payment of criminal justice debt is a condition of probation and parole—and violations can therefore lead to denial of federal welfare benefits, including cash assistance, food stamps, housing assistance, and supplemental social security income.Footnote 102 Similarly, inability to pay fines and fees frequently results in denial of the restoration of the right to vote.Footnote 103
While the United States may be the heaviest user of other legal sanctions, some can be found in other countries as well. In Australia and New Zealand, for example, failure to pay fines can trigger driver's license suspensions.Footnote 104 And at least a few countries authorize forfeiture of property as a failure to pay fines. In Kenya, a court can issue a warrant for the seizure of someone's property for failure to pay a fine.Footnote 105 If a sentence indicates that in default a person shall be imprisoned and that person has served the entire such default term of imprisonment, then a court is supposed to issue a warrant for the seizure of property only if it finds “special reasons” to do so.Footnote 106 In China, forfeiture of property can also follow failure to pay a fine.Footnote 107
In short, the failure to pay fines and fees can lead quickly to other, harsher consequences. These harsher consequences may be intended to catch scofflaws—to incentivize well-resourced people to pay their fines and fees and thereby avoid worse outcomes. Yet in practice they serve as added poverty penalties on people who are already burdened by fines and fees that are beyond their means. These effects can add up, both within nations and around the world. But as shown in the next section, poverty penalties have received relatively light international attention.
III. Poverty Penalties in International Law
As the prior Parts have demonstrated, poverty penalties are pervasive. Yet they have long been underdeveloped in international human rights discourse. This Part describes this absence of attention and links it to a lack of specific provisions on financial sanctions in leading human rights instruments. We close the Part by pointing to relatively recent developments which show that poverty penalties are starting to attract more widespread international interest.
A. Early Attention and Early Neglect
Intriguingly, the most high-profile international discussion of fines and poverty happened more than a century ago. In 1905, the topic received attention at the International Penal and Penitentiary Congress (IPPC). Founded in 1872 to bring together government officials and prison reformers, the IPPC met roughly every five years until 1950 and became the leading forum for international conversations around criminal justice reform.Footnote 108 At its 1905 meeting in Budapest, the IPPC debated how fines should be set and how to deal with the widespread practice of imprisonment for failure to pay fines.Footnote 109
The IPPC came up with a set of succinct recommendations that were impressively humane for the time. It resolved that:
1. In the judgement the fine should be fixed proportionately to the fortune of the convicted person. . . . If [the person] is without means, the judge should declare the fine irrecoverable. That fine [must be] regarded as irrecoverable whose payment would encroach upon the necessities of life of the condemned.
2. The authority charged with the execution of the judgment should be authorized to permit the payment of the fine by installments or by public work. . . .
3. The remainder of the fine should be remitted to the person who punctually [paid by installments] when due three-quarters. . . .
4. In case of the insolvency of the condemned person the substitution of imprisonment for the fine should be avoided by resort[ing] to other means, and especially [to public] labor. . . .Footnote 110
Consistent with the era, these resolutions were presented not in the language of human rights but rather as progressive reforms that could be enacted by criminal codes.Footnote 111 These resolutions would influence comparative practice, including the rise of the day fines system and the developing use of installment payments as alternatives to immediate incarceration for inability to pay.Footnote 112 Yet as the twentieth century continued, imprisonment due to inability to pay continued to be a common poverty penalty.
In contrast to the IPPC, the most important human rights document in the world makes no specific reference to fines. Adopted by the General Assembly in 1948, the Universal Declaration of Human Rights both enshrined fundamental rights and set the stage for the later development of human rights treaties. It contains important rights related to criminal trials and has guarantees around non-discrimination, equal protection, economic security, and an adequate standard of living.Footnote 113 Importantly, Article 5 prohibits “cruel, inhuman or degrading . . . punishment” and Article 9 prohibits “arbitrary arrest [or] detention.”Footnote 114 Yet it has no provision related to fines. A specific ban on imprisonment for failure to pay fines would of course have been highly unlikely given the prevalence of this practice, and the same is true for a mandate requiring countries to set financial penalties in a way that equalized their effects across wealth. But it was not preordained that the Universal Declaration would make no reference to financial penalties. For language embodying more modest but still specific protections regarding financial penalties—language prohibiting “excessive fines”—existed in some rights-granting texts and could trace its origins all the way back to Magna Carta.Footnote 115
Although the Universal Declaration does not include an excessive fines clause, the travaux préparatoires shows that the delegates had access to texts that included such a clause. The Philippines, Liberia, Mexico, and the United States all provided copies of their excessive fines clauses as contributions to the discussion around national constitutions.Footnote 116 In addition, the drafters had a copy of Brazil's Constitution, which at the time provided for “no civil imprisonment for debt, fines, or costs.”Footnote 117 The decision of the drafters not to include a provision regarding the intersection of fines and poverty in turn reduced the likelihood that future national constitutions would include such provisions.Footnote 118 Moreover, it foreshadowed the absence of attention that UN human rights instruments and bodies would give to this topic in the future.
B. Between Criminal Justice and Human Rights
In the years since the Universal Declaration, poverty penalties continued to be largely overlooked. At least until recently, attention to the issue has been faint within the United Nations, both in its criminal justice arm and in its various entities devoted to human rights.
UN efforts around criminal justice are centered in Vienna. In 1950, the United Nations took over the IPPC and created a successor entity under the auspices of the Economic and Social Council, while continuing the practice of holding Congresses every five years.Footnote 119 This entity became the Committee on Crime Prevention and Control, a group of independent experts who did considerable work at the intersection of human rights and criminal justice.Footnote 120 Perhaps alarmed by the scope of these efforts, the Economic and Social Council abolished the Committee in 1991, converting it into the more state-led Commission on Crime Prevention and Criminal Justice, which in turn works closely with the UN Office on Drugs and Crime (UNODC).Footnote 121
While most of the work of the Committee on Crime Prevention and Control focused on prisons, it did undertake one major project around non-custodial measures. This was the United Nations Standard Minimum Rules for Non-custodial Measures, known as the Tokyo Rules, which the General Assembly adopted in 1990.Footnote 122 The Tokyo Rules aim to promote non-custodial measures as a means to avoiding “unnecessary use of imprisonment.”Footnote 123 Their only reference to fines is very brief: a long list of possible non-custodial sanctions includes “[e]conomic sanctions and monetary penalties, such as fines and day-fines.”Footnote 124 The Tokyo Rules say nothing specific about how economic sanctions can place a heavier burden on poorer defendants, although the reference to day fines and some other language in the rules signals recognition of the importance of considering individual circumstances.Footnote 125 Nor do the Tokyo Rules recognize how fines commonly trigger imprisonment for persons who are unable to pay them.Footnote 126
Since the Tokyo Rules, there has been little further discussion in the Commission or UNODC of economic sanctions in criminal justice—or of how such sanctions can serve as poverty penalties. There is awareness of these issues within UNODC, but it tends to be submerged within hefty documents produced by staff rather than receiving formal approval from the Commission or state parties.Footnote 127 The five-year Congresses have not focused in on this topic, and their energies in recent years have gone heavily to crime prevention with respect to drugs, terrorism, corruption, and organized crime.Footnote 128 And while the Commission and UNODC have continued to take some high-salience actions related to human rights, the topic of poverty penalties has been absent.Footnote 129
Attention to poverty penalties in the Geneva-based human rights entities has been similarly thin. Following the approach taken by the Universal Declaration, the foundational human rights treaties do not have provisions about excessive fines or other specific provisions targeting poverty penalties.Footnote 130
This was not an entirely unconsidered omission. During the drafting of what would become the International Covenant on Civil and Political Rights (ICCPR), there were two efforts by the Philippines to add a prohibition on excessive fines. First, the Philippines tried to add a clause prohibiting excessive fines to what would become Article 7, the provision that bans torture and other cruel, inhuman, or degrading punishment.Footnote 131 After the Greek delegate discouraged this clause as “introducing a provision of detail in an article . . . recognized as being in the nature of a general principle,” the Philippines withdrew the proposal.Footnote 132 It made another faint effort during the drafting of what would become Article 11, which is the provision that bans imprisonment for inability to pay contractual obligations.Footnote 133 But this attempt was rejected by eleven votes to none, with two abstentions.Footnote 134 The lack of such a provision may in turn have contributed to the overall lack of protections against abusive financial sanctions in national constitutions.Footnote 135
The drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also did not include discussion of excessive fines.Footnote 136 As a general matter, ICESCR engages with poverty far more than the ICCPR via its emphasis on economic rights. But unlike the ICCPR, it has no provisions that directly engage with criminal justice and therefore had less occasion to consider inequities arising from criminal sanctions. The separateness of these covenants—one more engaged with criminal justice, the other dealing more with poverty—left the intersection between these two bodies of rights not as developed as it could have been.Footnote 137
As more human rights treaties were negotiated, the absence of specific prohibitions related to financial sanctions continued. The human rights treaty devoted most specifically to punishment—the Convention Against Torture—focuses on physical harms.Footnote 138 It has no prohibition on excessive fines and does not elaborate beyond the ICCPR as to the meaning of “cruel, inhuman or degrading treatment or punishment.”Footnote 139 Other human rights instruments prohibit varying forms of discrimination (with which excessive fining practices may intersect), but they also do not expressly prohibit excessive fines.Footnote 140 Regional human rights treaties similarly lack specific provisions regarding to poverty penalties, even as they have robust provisions around non-discrimination and equality.Footnote 141
The absence of specific treaty provisions of course does not foreclose human rights consideration. Yet until recently, we have found little attention in international human rights settings to the ways in which economic sanctions that are not scaled to finances can disproportionately harm lower-income persons. Human rights actors have expressed concern about the magnitude of fines. But these concerns have often arisen in contexts where the unscaled fine is not seen as a problem in and of itself, but rather as something that results in another problem. One example is high fines used to penalize speech or media activity—a topic flagged on occasion in the Universal Periodic Review or one of the human rights committees as problematic with respect to freedom of speech and associated rights.Footnote 142 Another example comes from a 2006 Report of the Working Group on Arbitrary Detention following a visit to Nicaragua, in which the Working Group raised important concerns about “exorbitant fines” for drug crimes, noting that “[f]or those unable to pay, the fine is converted into an additional one year's rigorous imprisonment.”Footnote 143 Here the concept of the poverty penalty is squarely recognized, but in the specific context of drug crimes rather than as a phenomenon that deserves independent attention. As an illustration of how absent the issue of imprisonment for failure to pay unaffordable fines can be, it does not even get mentioned in the Human Rights Committee's 2014 General Comment on the liberty and security of person.Footnote 144
C. Recent Developments
Poverty penalties are now gaining salience in international discourse. The developments so far are modest, but conditions look promising for further attention.
Importantly, domestic actors around the world are starting to pay attention to poverty penalties and raise concerns about them. As described earlier, U.S. practice is finally receiving substantial attention within the United States, and judges or advocates in South Korea, Kenya, and Ghana are pressing for reforms.Footnote 145 Concerns are being raised in other countries as well. As examples, Rwanda's judges have complained about the heaviness of fines; an EU-funded report highlights some of the problematic aspects of fines as penalties; and Australia's Law Reform Commission and Human Rights Commission have expressed concern about how Aboriginal and Torres Strait Islander incarceration often stems from failure to pay fines.Footnote 146 This groundswell of domestic interest is promising given that “[m]any international norms beg[i]n as domestic norms.”Footnote 147
At the international level, poverty penalties have similarly generated more attention in recent years. An early and important instance occurred in 2012, when the United Nations Human Rights Council adopted Guiding Principles on Extreme Poverty and Human Rights.Footnote 148 As one of many recommendations, the Principles state that:
States should . . . [r]eview sanctions procedures that require the payment of disproportionate fines by persons living in poverty, especially those related to begging, use of public space and welfare fraud, and consider abolishing prison sentences for non-payment of fines for those unable to pay.Footnote 149
While the Principles use hortatory rather than mandatory language, they clearly signal the need for concern around poverty penalties.
In the years since, there have been other references to poverty penalties. As one notable example, the special rapporteur for extreme poverty and human rights devoted a section of his 2018 report on the United States of America to the “[t]reatment of the poor in the criminal justice system.”Footnote 150 He observed that:
In many cities and counties, the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but many other programmes. . . . So-called fines and fees are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society, who pay the vast majority of such penalties. Driving licenses are also commonly suspended for a wide range of non-driving related offences, such as a failure to pay fines. . . . In some states, minor offences are routinely punished by placing the offender on probation, overseen by a for-profit corporation, entirely at the expense of the usually poor offender. Those who cannot pay are subject to additional fees, supervision and testing.Footnote 151
He expressed grave concern over “[l]ocking up the poor precisely because they are poor,” observing that this “is not a strategy to reduce or eliminate poverty.”Footnote 152
There are other recent examples as well. In 2017, two special rapporteurs raised concerns about the high proportion of Aboriginal women imprisoned for non-payment of fines in Australia.Footnote 153 In 2021, a trio of special rapporteurs raised concern with Cambodia about its high fines related to COVID precautions, noting that “[i]mposing fines of up to USD 5,000 for breaking health or administrative measures under the Law are vastly disproportionate to the earnings of average Cambodians.”Footnote 154 Similarly, in 2022, the special rapporteur on the situation of human rights defenders decried Russia's effort to stifle discussion of sexual orientation and gender identity issues by imposing a one million RUB administrative fine for the broadly defined offense of “propaganda of non-traditional sexual relations among minors.”Footnote 155 That same year, the Committee on the Elimination of Racial Discrimination asked some pointed questions of France about its application of excessive fines to the Traveler community.Footnote 156 And international NGOs are increasingly engaging on these issues.Footnote 157
Given the recent rise in engagement, this may be the cusp of what Martha Finnemore and Kathryn Sikkink have famously called a “norms cascade.”Footnote 158 But the answer is not clear yet. Perhaps tellingly, in the Universal Periodic Review of the United States that occurred in 2020—well after the special rapporteur's report—the issue of poverty penalties received no attention.Footnote 159 Yet as discussed in the next Part, there are good reasons why poverty penalties should receive significant consideration in international human rights discourse and action.
IV. Implications
The prior Parts show that poverty penalties are a significant issue around the world and yet have received relatively little international attention. This Part offers a normative justification for why poverty penalties should receive attention and gives preliminary thoughts about how this goal could be actualized. We begin by discussing how poverty penalties implicate serious human rights concerns and run counter to international objectives around poverty reduction. Imprisonment due to inability to pay poverty penalties is especially problematic, but other aspects of poverty penalties also deserve close human rights scrutiny. The Part then offers some practical suggestions for how international actors within and outside of human rights settings can raise the issue of poverty penalties and about what best practices might look like in this area. We highlight the ongoing need for data about on-the-ground practices and the importance of ensuring that substantive reforms do not lead unintentionally to other problematic consequences.
A. Human Rights Law and Beyond
Poverty penalties are a human rights problem. Yet because they have flown largely under the radar, there is an absence of scholarly explanation about why this is the case. In what follows, we begin to articulate the human rights concerns raised by poverty penalties. The goal here is modest: to discuss situations in which poverty penalties raise especially strong human rights concerns and to articulate what these concerns are. Our focus is on general principles rather than on trying to identify precisely when poverty penalties rise to the level of human rights violations under the many overlapping but varied worldwide and regional human rights treaty regimes.Footnote 160
One such principle—always applicable—is the need for non-discrimination and equal protection. This is embodied in Article 26 of the ICCPR, which provides that “[a]ll persons are . . . entitled without any discrimination to the equal protection of the law” and that the law must therefore “guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”Footnote 161 Article 2 of the ICESCR has similar protections against discrimination.Footnote 162 Importantly, these protections can apply against facially neutral policies that have discriminatory effects. As the Human Rights Committee has observed, “a violation of article 26 may result from a rule or measure that is apparently neutral or lacking any intention to discriminate but has a discriminatory effect,” although such rules or measures can be permissible if “based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant.”Footnote 163 The Committee on Economic, Social and Cultural Rights has similarly made clear that “laws policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights” can amount to discrimination under the ICESCR.Footnote 164
Poverty penalties conflict with this non-discrimination principle. They disproportionately subject lower-income persons to deeper and longer involvement in criminal legal systems, while those of wealthier means simply pay their penalties immediately and walk free. Poverty penalties also can raise concerns regarding arbitrary detention, disproportionate punishment, and discrimination around other types of protected status, and they can stand in the way of enjoyment of economic rights more generally. These concerns are particularly acute where individuals are imprisoned for inability to pay poverty penalties, but they arise in other contexts as well. Moreover, looking beyond human rights law, poverty penalties stand in tension with other international objectives. These points are elaborated below.
1. Imprisonment Due to Inability to Pay as a Human Rights Concern
One practice that should receive special human rights attention is imprisonment due to inability to pay poverty penalties. As mentioned earlier, this practice is widespread.Footnote 165 It raises concerns not only with respect to equality and non-discrimination principles, but also regarding ICCPR Article 9's directive that “[n]o one shall be subjected to arbitrary arrest or detention.”Footnote 166
As Article 9 indicates, special scrutiny is necessary when a state seeks to deprive individuals of personal liberty. This is true even though the ICCPR does not have a specific provision banning imprisonment for inability to pay fines (unlike for inability to pay contractual obligations), and even though imprisonment for non-compliance with a court order is not necessarily a human rights violation.Footnote 167 For there are two reasons why incarcerating defendants solely because they are unable to pay poverty penalties feels deeply arbitrary.
First, it is problematic to imprison someone for something over which they have no control. As an English court put it in 1965, “[i]t is . . . wrong in principle to impose such a fine as may be utterly beyond the Accused's means, and will only result in the prison sentence . . . as a sanction for failure to pay.”Footnote 168 If the criminal code or a court using its discretion has decided that economic sanctions are the proper punishment, then it seems not in “conform[ance] to the principle of justice”Footnote 169 to impose the harsher punishment of imprisonment as a consequence of someone's non-willful inability to pay these sanctions.
Second, it is discriminatory to make poverty the dividing line between imprisonment and freedom. Indeed, this was the reasoning that underlay the U.S. Supreme Court's decisions striking down imprisonment due to inability to pay a fine on equal protection and due process grounds.Footnote 170 As the Court explained in banning the practice of immediately imprisoning defendants who were unable to pay their fines in full, “a law nondiscriminatory on its face may be grossly discriminatory in its operation.”Footnote 171 Or to quote more recently from comments made by the Working Group on Arbitrary Detention in a related context, “the right to personal liberty belongs equally to everyone, irrespective of their economic or other status.”Footnote 172 Unless economic sanctions are perfectly scaled to financial circumstances, they penalize lower-income persons more than higher-income persons. Where this extra penalty leads to deprivation of liberty, it is “grossly discriminatory” indeed.
The Human Rights Committee's comment on Article 9 reinforces these principles. While the Committee says nothing specific about imprisonment due to inability to pay fines, it makes clear that detention can be arbitrary even if it is lawful under domestic law.Footnote 173 Instead, “‘arbitrariness’ . . . include[s] elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”Footnote 174 Imprisoning a person because they are unable to fulfill a non-carceral sentence is both inappropriate and disproportionate, especially if reasonable alternatives are available. Indeed, the fact that a fine was imposed initially indicates that incarceration is not necessary for punitive purposes. And the fact that this consequence falls on poor persons and not on rich persons suggests that it is neither just, reasonable, nor necessary. Add to all this the likely heightened effects on individuals who are already vulnerable for reasons such as race, religion, gender, or disability, and the human rights problems become still stronger.
These concerns are not new ones. As far back as 1905, members of the IPPC recognized the “weaknesses of the fine system” in which a rich person can “easily pay the fine while the poor man is committed to prison because he has not the means to pay it.”Footnote 175 Yet well over a century later, the practice of incarcerating people who are unable to pay poverty penalties remains all too common.
2. Other Human Rights Concerns Regarding Poverty Penalties
Poverty penalties are problematic from a human rights perspective in ways that go beyond the harsh consequence of imprisonment. They raise serious concerns about the extent to which states are in fact providing “equal and effective protection against discrimination.”Footnote 176 It is hard to see what legitimate penal interest in punishment or in deterrence is promoted by making poor defendants suffer more than rich defendants for the same offense. To the extent that the state has an interest at stake, it is an interest in administrability: it would be unrealistic to require that all economic sanctions be perfectly set so that they deliver the exact same impact on defendants of all financial circumstances.Footnote 177 Yet at some point, this interest in administrability should not justify the use of poverty penalties. There are at least four contexts in which the human rights interests at stake will be particularly strong.
One context is the excessiveness of the economic sanction as applied to a particular individual. In 2021, for example, the highest court in the U.S. state of Washington struck down economic sanctions of $540 imposed for a parking infraction on an indigent and unhoused man, holding that these sanctions were excessive fines and therefore constitutionally impermissible.Footnote 178 The specific prohibition against excessive fines is found in only some national constitutions, and, as noted earlier, the drafters of the ICCPR declined to include such a clause.Footnote 179 But the absence of this specific clause does not negate the human rights considerations at stake. To the contrary, the delegates declined to include this clause at least partly on the ground that it would be a mere “provision of detail in an article . . . recognized as being in the nature of a general principle.”Footnote 180 In keeping with this view, the broader human rights prohibition against cruel, unusual, and inhuman punishments found in Article 7 of the ICCPR (and in other human rights instruments) is best interpreted as protecting against grossly disproportionate sentences.Footnote 181 This aligns with the broader principle of proportionality within human rights law.Footnote 182
Another context is the extent to which disproportionate economic sanctions lead in turn to more poverty penalties, such as additional financial penalties or deprivation of legal rights. This cascade creates additional punishments that will be experienced in practice only by poor persons, such as the added surcharge that South Korea puts on late fines even for those unable to pay or the many, many additional poverty penalties imposed by U.S. jurisdictions.Footnote 183 If states fail to scale fines to financial circumstances in the first place, then their obligations to protect against discrimination should at the very least require them to avoid the further snowballing of poverty penalties. This principle is reinforced by human rights protections against discrimination on the basis of property found in both the ICCPR and the ICESCR, as well as the ICESCR's further protections regarding the non-discriminatory enjoyment of economic rights.Footnote 184
A third context is whether disproportionate economic sanctions are having discriminatory effects that go beyond poverty. As noted earlier, poverty penalties are often disproportionately experienced by vulnerable groups, including along lines of race, religion, gender, and disability, and sometimes due to intentional discrimination. To point again to the United States, this is all the more problematic where these sanctions are serving the goal of revenue extraction—where criminal justice is the excuse for generating fines and fees to fund local government.Footnote 185 Where poverty penalties are disproportionately affecting persons who are protected from non-discrimination for reasons besides poverty under the ICCPR and ICESCR (and by other human rights instruments, including the CERD, CEDAW, and CRPD), then the human rights concerns should be amplified.
Finally, human rights abuses can occur where poverty penalties are unreasonably high. Poverty penalties do not arise simply because a state lacks resources to combat poverty; they arise because the state has chosen to impose a sanction that disproportionately impacts lower-income persons. Administrative convenience can justify the decision not to scale economic penalties perfectly to income—but only up to a point.Footnote 186 Even if a fine is not per se excessive and even if it does not snowball into other poverty penalties, it can nonetheless have a sufficiently disproportionate impact on lower-income people to amount to impermissible economic discrimination. Criminal codes that impose high fixed fines or high minimum fines run the risk of violating the non-discrimination obligations of human rights law, as do sentences imposed on the ground that unreasonably discriminate against poor people.
As discussed earlier, human rights actors are increasingly raising concerns relating to poverty penalties. Each of the four contexts raised here has attracted recent concern from experts. They have expressed dismay about excessive fines; about snowballing poverty penalties; about economic penalties that disproportionately harm indigenous persons and ethnic minorities; and about high fixed or minimum fines.Footnote 187 Their remarks demonstrate that the problematic human rights implications of poverty penalties extend well beyond the use of incarceration for inability to pay.
3. Poverty Penalties as an Obstacle to Criminal Justice and Poverty Eradication
The normative focus in this Article is on the human rights implications of poverty penalties. This is because human rights law is the branch of modern international law that most emphasizes state obligations to treat people under their jurisdiction fairly, proportionately, and without discrimination. Although poverty penalties have received inadequate attention from human rights law to date, they fall naturally within its broader conceptual and legal ambit.
While we focus on human rights principles, we think that poverty penalties should be of interest not only to human rights bodies but also to other international institutional actors. This is especially important because of the nature and structure of international practice. For one thing, human rights bodies have many issues to address and considerable challenges in improving practices on the ground. For another, human rights considerations are crucial not only to human rights bodies but also to international actors in other institutional forums.
One of these other forums is criminal justice. As noted earlier, international conversations about poverty penalties pre-dated modern human rights law, and the criminal justice organs of the United Nations continue to pursue penological improvements. The 2011 Bangkok Rules are an example of how the criminal justice institutions of the United Nations can advocate for progressive and human-rights-infused reforms.Footnote 188 These institutions should similarly have an interest in the reduction of poverty penalties.
Poverty penalties should also be of interest in forums focused on development. The first of the seventeen Sustainable Development Goals (SDGs) set by the United Nations in 2015 is “[e]nding poverty in all its forms.”Footnote 189 Placing disproportionately high economic sanctions on poor people undermines this goal in ways that merit attention from the United Nations Development Programme and other anti-poverty advocates.
In short, poverty penalties merit consideration from a range of international actors. In what follows, we raise some specific suggestions about how this can be achieved.
B. International Practice
As poverty penalties receive more international attention, what should be said and done? In what follows, we offer some preliminary thoughts. As an initial matter, more international scrutiny and information around poverty practices is needed. As states begin to discuss best practices, they can draw on research and practice in domestic jurisdictions around how economic sanctions are set, around how collections practices and penalties for non-payment, and around the extent to which revenue-based incentives may affect the use of financial sanctions. We end by noting some potential pitfalls.
1. Increasing Salience and Transparency
Poverty penalties should be of concern to many different stakeholders. They relate to criminal justice, to poverty, and to arbitrary detention. They can place disproportionately high burdens on groups that are vulnerable for reasons beyond poverty, including along lines of race, religion, gender, and disability. In other words, they merit attention from the human rights community writ large, as well as from criminal justice leaders and anti-poverty advocates.
As noted earlier, international human rights leaders are starting to pay attention to poverty penalties. The Working Group on Arbitrary Detention and several special rapporteurs have made important recent contributions; attention from NGOs is growing; and conditions are ripe for more discussion within the human rights treaties’ committees and the Universal Periodic Review process.Footnote 190 Given the rising interest in this issue among domestic advocates, more international and regional attention may lie ahead.
Increased international attention to poverty penalties is itself a crucial first step. The more that UN officials ask states about poverty penalties—and the more that states ask each other about poverty penalties—the more the potential for impact rises.Footnote 191 Cosette Creamer and Beth Simmons have recently theorized that “elite socialization, learning and capacity building, domestic mobilization, and law development” can all arise from human rights dialogue and can contribute to improved conditions on the ground.Footnote 192 The reduction of poverty penalties may be an issue that is comparatively amenable to these mechanisms. Because it has largely flown under the radar up to now, it has considerable potential for socialization, learning, and new energy around mobilization. And the fact that it is relatively apolitical may increase openness to learning and law development.
An important additional step is gathering more information. The use of fines can be a valuable alternative to incarceration, as the Tokyo Rules recognizeFootnote 193—but unless great care is taken, these fines will amount to poverty penalties and may lead to other problematic consequences (including incarceration). Access to data can help identify problematic practices while giving stakeholders the tools to evaluate the impacts of economic sanctions. And continued monitoring can help track implementation of reforms, revealing whether new policies are in fact being properly executed and if they are having the desired effect.
Currently, there is an absence of good international data on poverty penalties. The UN Office on Drugs and Crime gathers considerable data related to crime through a periodic survey, but it does not include data that offers any clear window into poverty penalties.Footnote 194 Similarly, the reporting procedure established for the Human Rights Committee does not include any questions that are specific to poverty penalties.Footnote 195 Moving forward, it would be valuable for these actors to seek information from countries on some or all of the following issues:
• Assessment of sanctions: In what situations are economic sanctions imposed by courts? To what extent are sanctions scaled to the financial circumstances of individual defendants?
• Penalties for non-payment: How many individuals are incarcerated annually for failure to pay economic sanctions? What other penalties are applied to individuals who fail to pay?
• Revenue distribution: How is revenue collected from economic sanctions distributed among local, regional, and national governments and to what units does it go within these governments?
Other treaty committees might seek data on poverty penalties as they relate to particular populations, including regarding race, gender, or disability.
These questions are meant as starting points. There are more inquiries that could be helpful—such as what procedural protections are available to defendants in fine-only offenses, the extent to which suspended sentences are used for fines, how fines collection is administered, and whether back-end forgiveness mechanisms exist and are used in practice.Footnote 196 But given how little information is collected at present, initial statistics would improve on the status quo and could be a launching pad for deeper inquiry.
2. Promoting Substantive Changes
As international attention to poverty penalties increases, more conversation will occur around substantive reforms. Based on comparative practice and ongoing policy reform in various countries, we expect these conversations to focus around three issues: setting economic sanctions; collections and penalties for non-payment; and revenue considerations. As these conversations develop, they might someday lead to established minimum standards.
The first issue is how economic sanctions are set. Day fines have strong normative appeal, as they try to equalize the impact of economic sanctions across individual financial circumstances. There have been and probably will continue to be more calls for their use.Footnote 197 But some caution is in order, as day fine systems can suffer from design flaws, and because the success of their adoption may depend on factors like judicial or administrative capacity and the formality of the economic system.Footnote 198 For example, in the case of Japan, legislators considered adopting a day fines system multiple times in the 1960s and 1970s, and again in 1990, but efforts failed at least in part because public prosecutors feared that the system would “create the difficult task of proving the defendant's income.”Footnote 199 Elena Kantorowicz-Reznichenko and Michael Faure recently edited a useful volume on comparative day fines practices within Europe that sheds light on best practices within day fines systems.Footnote 200
Even if countries do not adopt day fine systems, they can take economic circumstances into account through ability-to-pay hearings, through presumptions of indigency if certain criteria are met, or through the use of bench cards detailing how a judge should calculate and consider a sentenced person's ability to pay.Footnote 201 Given the common challenge of poverty penalties, discussion of best practices would be fruitful—as suggested by the example of the IPPC more than a century ago.
As states and human rights actors discuss how economic sanctions are set, they should also consider the circumstances under which economic sanctions should not be imposed in the first place. In calling for a ban on fines for school-aged juveniles, for example, the Inter-American Commission on Human Rights emphasizes that such fines “may have the effect of forcing children to engage in work that . . . is inappropriate for their age.”Footnote 202 The Commission suggests well-designed community service programs as a better non-carceral option.Footnote 203 Scholars and advocates in the United States have expressed grave skepticism about economic penalties that are imposed as add-on penalties to imprisonment, since individuals coming out of prison are particularly likely to lack resources and be limited in their employment options.Footnote 204 They have also advocated for the eradication of costs, fees, and surcharges, so that the only financial penalties imposed on individuals are fines and restitution.Footnote 205 And there are broader conversations about decriminalization of certain low-level offenses.Footnote 206 Dialogue between states could help clarify the advantages and disadvantages of various approaches in practice.
The second issue involves collection practices and penalties for non-compliance. How can states collect economic sanctions while minimizing the cascade of poverty penalties? The collection of economic sanctions from poor defendants is fraught with abusive potential. Incarceration for non-payment will result in the imprisonment of persons who are unable to pay (rather than just unwilling to pay), unless the most stringent steps are taken to ward off this outcome.Footnote 207 Installment payment plans can theoretically offer employed defendants a reasonable opportunity to pay—but can also turn into long-term traps.Footnote 208 The use of aggressive collection tactics and the imposition of late fees, collection costs, and interest will lead to snowballing poverty penalties.Footnote 209 The substitution of other non-carceral penalties for those unable to pay—alternatives like probation or community service—has potential but requires well-designed infrastructure and may prove challenging for particularly vulnerable defendants, such as those with disabilities.Footnote 210
These are difficult matters. The challenges they pose highlight how crucial it is for states to be thoughtful in how they impose economic sanctions in the first place, including by taking defendants’ financial circumstances into account. So far, there has been relatively little international discourse on this issue. But precisely because they are difficult issues, conversation about how best to enforce economic sanctions while meeting human rights objectives is essential. Recent work highlights the potential for amnesty options.Footnote 211 With more information (including the information called for above), states that opt to use financial penalties can strive for practices that: (1) set penalties at reasonable and fair levels; (2) have appropriate mechanisms for identifying and getting compliance from those who are unwilling to pay; and (3) have appropriate mechanisms for not over-penalizing those who are unable to pay.
A third issue that merits consideration relates to revenue. In the United States, subnational governments that impose economic sanctions in the name of criminal justice are heavily motivated by revenue generation—an unsavory fact that has surfaced in recent years.Footnote 212 We do not have enough information from our research to answer whether this is a problem that is largely unique to the United States or whether instead it is a broader international problem. The more that economic sanctions go to governmental actors closely connected with the judges, police, and prosecutors who impose these sanctions, the greater the risk. There is varying practice among states. Ghana's Constitution, for example, provides that revenue from all fines go into a central fund, while Panama's Constitution provides that municipal fines shall go into municipal funds.Footnote 213 Conversation around best practices could help ensure that financial motives do not taint the administration of criminal justice.
In the long run, the criminal justice and human rights arms of the United Nations could consider developing a set of minimum standards and/or best practices surrounding economic sanctions. This would build out on the initial start made in the Tokyo Rules, which recommend the use of fines and day fines as alternatives to incarceration but without providing guidance on how they are to be administered.Footnote 214 Minimum standards or best practices that address the relationships between economic sanctions, poverty, and governmental fiscal considerations could help improve criminal justice systems around the world.
3. Avoiding Pitfalls
Increased international attention could lead to reductions in poverty penalties. But just as domestic experiences provide ideas about best practices, so too can they remind us of unintended problems. In what follows, we briefly identify three potential pitfalls and emphasize the need for ongoing monitoring.
The first is the obvious but sometimes overlooked need to tailor solutions to capacity. Polish judges have found day fines too cumbersome to implement; Ghana lacks strong infrastructure for offering probationary alternatives; post-sentencing processes for reducing fines are available but underused in U.S. states.Footnote 215 As nations consider reforms, they need to think carefully about what will feasibly advance the goal of reducing poverty penalties given their particular national circumstances and constraints. Close engagement with on-the-ground administrators and advocates is likely to be essential to the success of any reforms.
The second potential pitfall is the risk of Whac-A-Mole—that one ugly set of practices will get replaced with another ugly set of practices. In the 1970s and 1980s, the U.S. Supreme Court found it unconstitutional to imprison persons for inability to pay economic sanctions.Footnote 216 But since then, rampant violations have continued, and state and local governments have also placed defendants on endless installment payment plans, dramatically increased fees and collection costs, and added on other poverty penalties like the deprivation of driver's licenses or of political rights.Footnote 217 To the extent that other states move toward ending incarceration for inability to pay poverty penalties, they must take care to avoid net-widening and other problematic consequences.Footnote 218 Holistic consideration is essential.
A third hazard is the well-known gap between law on the books and its application—a gap that can occur even in the absence of capacity limits. In the United States, there are judges who have imprisoned indigent persons for non-payment on the theory that they are able to pay fines because they can sell their blood plasma.Footnote 219 In Germany, “system actors do not fully grasp poverty” and therefore “often believe that individuals who fail to pay must have willfully made that choice (despite evidence to the contrary).”Footnote 220 Incarceration for failure to pay is meant as an incentive to prod along the unwilling, but in practice it often ends up as a trap for the unable. Where there is considerable evidence of misuse of judicial discretion, it may be time to change the ground rules—such as by mandating a very rigorous process before someone can be incarcerated as unwilling to pay or by taking incarceration entirely off the table as a consequence for failure to pay.Footnote 221
These are undoubtedly not the only potential challenges. To the extent that domestic and international activists take up the issue of poverty penalties, more will arise. As always, there is need not only for good design of initial solutions, but also for ongoing and holistic monitoring.
V. Conclusion
In 1991, Australian jurist Michael Kirby dissented from a case in which a $60,000 AUS fine was imposed on an indigent prisoner with Parkinson's disease who earned $12 AUS per week.Footnote 222 He considered international human rights law to prohibit the imposition of such a high fine under these circumstances.Footnote 223 In a later speech, he reiterated this position but did not expand on his analysis, instead saying: “Leave it to the law reviews.”Footnote 224
More than thirty years later, the problem of poverty penalties remains prevalent. As this Article has shown, criminal justice systems around the world are rife with economic sanctions that disproportionately punish poor people. Yet this issue has received relatively little attention at the international level, perhaps because of the absence of specific prohibitions against excessive fines in international human rights treaties. It is time—long past time—for more attention to this problem. International human rights advocates can encourage states to move toward eliminating poverty penalties, ending abusive collection practices, and considering individuals’ ability to pay before imposing any fines. The world needs justice systems that treat individuals fairly, ensure public safety and community prosperity, and are funded equitably.
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