Equity of Punishment

By Winston Smith


Punishment is not for revenge, but to lessen crime and reform the criminal.”

Elizabeth Fry

The law imposes limitations on our actions, and, therefore, the behaviors that we have. In its most ideal sense, the law is structured so that it drives those under it to behave justly to their counterparts while also providing a civilized structure in which to punish those who violate the law. These punishments have developed substantially as society has developed. One of, if not the, oldest examples of law in human civilization is the Code of Hammurabi. We are almost universally aware that this infant legal code centered around doctrine of “doctrine of ‘lex talionis,’ or the laws of retribution, sometimes better known as ‘an eye for an eye.’”

Naturally, as societies have progressed, their codes of law have also progressed. The natural evolution of the law is a reflection on the norms and values of that particular society have developed over time. For example, in 1966 there were laws in the United States which banned interracial marriage. However, in Loving v. Virginia the Supreme Court found that Virginia’s antimiscegenation law violated the Equal Protection Clause of the Fourteenth Amendment. This is one out of tens of thousands of examples wherein our legal system has continued to reflect the societal norms that have been adopted or shunned.

In many ways, punishments for these crimes have also developed. We started with “an eye for an eye” and have moved to more humane and just systems of punishment. We have now developed specific purposes which help inform the generation of our punishments. Modern punishment have five recognized purposes: deterrence, incapacitation, rehabilitation, retribution, and restitution. All of these reasons help inform policy and law in the structuring of punishments for those who violate the law. An ideal punishment would strike a perfect balance of all five of the purposes, however, as we have not figured out that punishment, many that we have are deficient in many areas. Therefore, many punishments are deficient in some way. One criticism levied against our current system is created by Alec Schierenbeck in his recent New York Times article titled “A Billionaire and a Nurse Shouldn’t Pay the Same Fine for Speeding.”

In his article, Schierenbeck proposes the idea that:

For a justice system committed to treating like offenders alike, scaling fines to income is a matter of basic fairness. Making everyone pay the same sticker price is evenhanded on the surface, but only if you ignore the consequences of a fine on the life of the person paying. The flat fine threatens poor people with financial ruin while letting rich people break the law without meaningful repercussions. Equity requires punishment that is equally felt. (emphasis added)

This is an interesting idea, as the factual basis for much of this reasoning is correct. Schierenbeck cites a heartbreaking example of how a “a single $151 parking violation sent a black woman struggling with homelessness into a seven-year odyssey of court appearances, arrest warrants and jail time connected to her inability to pay.” It is obvious that such a fine has nearly no effect on those who can easily afford it, such as billionaires. Schierenbeck delves into much more detail in his parent article The Constitutionality of Income-Based Fines wherein he concludes that “potential constitutional obstacles — arising primarily from the Excessive Fines Clause of the Eighth Amendment — are navigable, especially if a U.S. system caps how high fines can go.” Truly, who could not empathize in some way with this cause. Our poorest should not have to contemplate the possibility of homelessness due to a lead foot while on their way to their second job.

So what are we to do? Schierenbeck proposes that we adopt a system of progressive fines. In his NYT article he primarily focuses on the use of day fines as a way to create a more equitable system of punishment. However, while this system of punishment may be practical, does it fit within the five purposes of punishment? Remember that the five purposes are deterrence, incapacitation, rehabilitation, retribution, and restitution. While any fine punishment does in some way address restitution, does a progressive fine satisfy in some way deterrence, incapacitation, rehabilitation and retribution?

Interestingly, a progressive fine may meet both specific and general deterrence. The most infamous examples of the use of a progressive fines have occurred in Finland where a businessman was required to pay a €54,000 speeding ticket. In 2002 a Nokia executive was fined the equivalent of $103,000 for going 45 in a 30. These individuals do seem to have incurred fines where they are theoretically less likely to commit this offence again and they were so well publicized that this writer doesn’t even want to drive in Finland. Of course a monetary fine could never satisfy incapacitation or rehabilitation in any meaningful way.This leaves only retribution, preventing future crimes by removing the desire for personal avengement. Now no specific person is injured by the act of speeding (except I want to make sure the guy who sped to cut me off never gets to work on time). Therefore, while I came here to write about how ridiculous this idea was, it does seem to be a just way to scale monetary punishments. A $125 fine to the working poor can be equally detrimental as a $103,000.00 fine can be to an executive of a major multinational telecommunications company executive. Lets not pretend that a $125 fine to the wealthy makes any true impact on their future behavior or truly punishes them.

Let’s make our system of punishments more equitable. Now, this doesn’t mean that punishments should be lighter. Much the opposite, monetary punishments should be equally as impactful to all regardless of their class status. It is simple minded to maintain that all monetary punishments have the same effect across all classes. If we are going to have monetary punishments (and we should) then make them mean something. To everyone.


Photo Credit: Autoblog

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