Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-848d4c4894-x5gtn Total loading time: 0 Render date: 2024-05-27T04:01:31.262Z Has data issue: false hasContentIssue false

2 - Theoretical Perspectives on Day Fines

Published online by Cambridge University Press:  11 June 2021

By
Elena Kantorowicz-Reznichenko
Edited by
Elena Kantorowicz-Reznichenko  and
Michael Faure
Elena Kantorowicz-Reznichenko
Affiliation:
Erasmus Universiteit Rotterdam
Michael Faure
Affiliation:
Universiteit Maastricht, Netherlands
Get access

Summary

The two main justifications for punishment, and the ones most relevant for pecuniary sanctions are retribution and deterrence. This chapter aim to theoretically assess day fines in light of these two justifications. Whereas day fines seem to fit well the deterrence goal, their legitimacy in light of the proportionality principle (mostly attributed to retribution) is less straight forward. A fine, which accounts not only for the severity of the offence, but also for the income of the offender, has a better potential to deter all criminals irrespective of their income. On the other hand, such fine might not seem to be proportional to the severity of the crime if also income is accounted for, thus not fulfilling the retribution goal. However, if looking more broadly on the principle of proportionality, one can see day fines are more proportional than fixed fines. The number of days is the element which needs to be proportionate to the severity of the offence. The daily unit, on the other hand, assures that the imposed punitive bite of the sanction is similar for all offenders irrespective of their income. In addition to this analysis, this chapter discusses the theoretically optimal model of day fines.

Keywords

Day finesoptimaltheoryretributiondeterrrenceproportionalitysubjectiveobjective
Type
Chapter
Information
Day Fines in Europe
Assessing Income-Based Sanctions in Criminal Justice Systems
 , pp. 8 - 23
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Beccaria, C. 1983. An Essay on Crimes and Punishments. Boston: International Pocket Library (first published in Italian in 1764).Google Scholar
Becker, G. 1968. ‘Crime and Punishment: An Economic Approach’, Journal of Political Economy 76(2),169–217.CrossRefGoogle Scholar
Bentham, J. 1840. Theory of Legislation: Principles of the Penal Code. Boston: Weeks, Jordan & Company (translated from French by Etienne Dumont).Google Scholar
Bentham, J. 2007. An Introduction to the Principles of Morals and Legislation. New York: Dover Publications, INC. (first published in 1780).Google Scholar
Blumstein, A., Cohen, J. and Nagin, D. (eds.) 1978. Deterrence and Incapacitation: Estimating the Effect of Criminal Sanctions on Crime Rates. Washington DC: The National Academies Press.Google Scholar
Bronsteen, J., Buccafusco, C. and Masur, J. 2009. ‘Happiness and Punishment’, University of Chicago Law Review 76: 1037–82.Google Scholar
Frase, R. S. 2004. ‘Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative to What’, Minnesota Law Review 89: 571–651.Google Scholar
Frase, R. S. 2005. ‘Punishment Purposes’, Stanford Law Review 58: 67–84.Google Scholar
Haist, M. 2008. ‘Deterrence in a Sea of Just Deserts: Are Utilitarian Goals Achievable in a World of Limiting Retributivism’, Journal of Criminal Law & Criminology 99: 789–822.Google Scholar
Honderich, T. and Chester, W. 2005. Punishment: The Supposed Justifications. London: Pluto Press.Google Scholar
Johnstone, G. 2013. Restorative Justice: Ideas, Values, Debates. London: Routledge.Google Scholar
Kant, I. 1974. The Philosophy of Law. New Jersey: Augustus M. Kelly Publishers (first published in English in 1887).Google Scholar
Kantorowicz-Reznichenko, E. 2015. ‘Day-Fines: Should the Rich Pay More?’, Review of Law & Economics 11(3),481–501.CrossRefGoogle Scholar
Kolber, A. J. 2009. ‘The Subjective Experience of Punishment’. Columbia Law Review 109: 182–236.Google Scholar
Kolber, A. J. 2009. ‘The Comparative Nature of Punishment’, Boston University Law Review 89: 1565–608.Google Scholar
Markel, D. and Flanders, C. 2010. ‘Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice’, California Law Review 98: 907–87.Google Scholar
Murphy, J. G. 1994. Kant: The Philosophy of Right. Macon GA: Mercer University Press.Google Scholar
Perry, R. 2005. ‘The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory’, Tennessee Law Review 73: 177–236.Google Scholar
Perry, R. and Kantorowicz-Reznichenko, E. 2017. ‘Income-Dependent Punitive Damages’, Washington University Law Review 95: 835–85.Google Scholar
Plato. 1997. ‘Protagoras’. In Cooper, J. M. and Hutchinson, D. S. (eds.), Plato: Complete Works. Cambridge, MA: Hackett Publishing Company, 746–90.Google Scholar
Polinsky, M. and Shavell, S. 1979. ‘The Optimal Tradeoff between the Probability and Magnitude of Fines’, The American Economic Review 69: 880–91.Google Scholar
Polinsky, M. and Shavell, S. 1994. ‘Should Liability Be Based on the Harm to the Victim or the Gain to the Injurer?’, Journal of Law, Economics, & Organization 10: 427–37.Google Scholar
Reznichenko, E. 2015. Cost-Effective Criminal Enforcement: A Law and Economics Approach. Unpublished PhD dissertation, available at http://hdl.handle.net/1765/78227.Google Scholar
Roberts, J. V. 1997. ‘The Role of Criminal Record in the Sentencing Process’, Crime and Justice 22: 316–19.CrossRefGoogle Scholar
Robinson, P. H. and Darley, J. M. 1996. ‘Utility of Desert’, Northwestern University Law Review 91: 453–99.Google Scholar
Von Hirsch, A. 1976. Doing Justice: The Choice of Punishments, Report of the Committee for the Study of Incarceration. New York: Hill and Wang.Google Scholar
Von Hirsch, A. 1993. Censure and Sanctions. Oxford: Clarendon Press.Google Scholar
Von Hirsch, A. and Ashworth, A. (eds.) 1998. Principled Sentencing: Readings on Theory and Policy. Oxford: Hart Publishing.Google Scholar
Zimring, F. E. and Hawkins, G. J. 1976. Deterrence: The Legal Threat in Crime Control. Chicago: The University of Chicago Press.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×