Fair Trials’ new report, Day Fines Systems: Lessons from Global Practice, offers comparative examples from European criminal legal systems of models of day fine regimes – monetary sanctions for criminal offences that are proportional to the defendant’s ability to pay.
It is a companion report to The Limits of Fairer Fines: Lessons from Germany, produced by the Criminal Justice Policy Program (CJPP) at Harvard University, which takes a deeper dive into German experience of day fines, with a specific focus on evaluating the ability to pay and the treatment of indigent defendants. Fair Trials’ research was conducted with the assistance of our European lawyers network, the Legal Experts Advisory Panel (LEAP).
Fair Trials’ report offers regional and international context for the German experience with day fines with reference to other European jurisdictions. The report evaluates whether models other than the German system might have features that could offer value to the US system. It also draws broader conclusions about the potential benefits and challenges day fines can offer to US jurisdictions given the various ways they are used in Europe.
The primary interest of The Limits of Fairer Fines is to learn from the practical application of the proportionality analysis that makes day fines an attractive innovation to US reformers. This report aims to provide additional information and detail about the ways that ability to pay is determined in European day fine systems, with an emphasis on the impact on the poorest defendants. The addition of information from jurisdictions other than Germany may help to spark greater flexibility in modelling ability to pay determinations in US contexts. It may also help readers to evaluate whether challenges raised to the application of the German system in The Limits of Fairer Fines can be ameliorated with reference to other systems currently in practice.
Fair Trials’ research demonstrates several relevant trends in European day fines practice:
- Ability to pay determination: Few jurisdictions engage in extensive investigations of income and actual costs of living in order to assess ability to pay. Instead, judges either accept the testimony of the defendant (often in the form of a short income declaration form filled out upon arrest) or rely on accessible tax records where these exist. Some jurisdictions use formulas to deduct living expenses, rather than requiring evidence of actual housing costs and debts.
- Imprisonment for non-payment varies significantly between jurisdictions and is poorly documented, but the experience of countries including Sweden and Finland suggests that it is possible to administer a robust day fines system without reliance on imprisonment for non-payment.
- Indigency: Although there are no examples of guidelines for indigent defendants, in practice people without employment can usually appeal to the court for extensions, payment plans without interest, community service or, in some jurisdictions, abandonment of collection.
- Role in decriminalisation and decarceration: In systems where day fines are well established, they have been adopted alongside other reforms aimed at decriminalising low level offences and introducing other forms of alternatives to incarceration (i.e. suspended sentences, conditional release, home arrest, etc.) to reduce incarceration. Ramping down the severity of punishment across different offence levels, along with the two-step day fines process which allows for significant penalties to be levied in more serious crimes, allows day fines to function effectively as sole sanctions.
We conclude that where European day fines systems are most successful, monetary sanctions are employed proportionally; without imposing a large administrative burden on defendants, courts and police to assess income; and without resorting to imprisonment in the event of inability to pay. They are also most successful when income-proportional fines are seen as significant sanctions even for more serious orders of offences, while minor offences are treated as administrative, rather than criminal breaches. To capture the benefits of European day fine systems, US jurisdictions should consider doing so in the context of larger reforms reducing pre-trial detention and decriminalizing misdemeanors.
