Penal fines
Chapter 2
Penal fines
Ever since the publication of Discipline and Punish (Foucault 1977), it has been virtually impossible to think about modern punishment without in some way focusing on Bentham’s Panopticon. For criminologists, it is fair to say that while Bentham was well enough known already as a founder of classical criminology, until then it had been the rational choice criminal rather than the disciplinary prison that was his trademark. Now the Panopticon appears as the quintessential expression of liberal penology. Working with the lightest possible touch on the body of the offender, it accorded well with liberal rejection of the coercive excess of the Absolutist state. As well, as Foucault argued, it was an institution that made subjects free in the sense that they would conform to the ways of a liberal polity without continued intervention by the state. However, we may well query whether the Panopticon should be considered the liberal penal apparatus par excellence.
While Gertrude Himmelfarb (1968) has pointed out that the poor reception the Panopticon received continued to rankle Bentham into old age, it needs to be recognized that it was the child of his middle years. Between the 1790s and the 1820s Bentham’s politics shifted from Tory to Philosophical Radical. He was, to begin with, an advocate of corporal punishment, and his promotion of the Panopticon did not (pace Foucault) envisage working simply on the mind or the soul. The ‘terror’ of imprisonment, with its delivery of ‘corporal pain’ was one of the key deterrent functions the Panopticon was to perform (Bentham 1962, iv: 122). By the 1820s, however, he had moved far from this position, regarding all punishment as an evil, albeit a necessary one. And it was no longer the Panopticon that was central in his writings. Rather it was those forms of punishment that in his view delivered no physical coercion and that were, in the event of injustice, completely reversible. These were monetary – or as he expressed it ‘pecuniary’ – sanctions. So much is Bentham associated with the Panopticon, it is hard to credit this fact. Yet it would be quite possible to argue that, rather than the Panopticon, the twinned punishment of the fine and monetary compensation was the ideal liberal criminal justice sanction. After all, it is the child of Bentham’s final years, overriding in his estimation the Panopticon. To back up this point, with reference to Bentham in their classic analysis, Rusche and Kircheimer (1939:206) argued that ‘the system of fines (is) the epitome of rationalist capitalist penal law’.
As will become clear I do not wish to make such an argument. Bentham’s own shift between two historically specific forms of liberal politics suggest that insofar as liberalism is attached to specific penologies, this nexus will vary with the historically particular forms that liberal governmentality takes. The fine may be associated more with certain forms of liberal political rationalities than other forms. However, the point does serve to underscore the arbitrary way in which the fine has been submerged beneath the prison in criminological theory and research.
After the Panopticon: Bentham on fines
I have mentioned before that Jeremy Bentham saw a close connection between fines and licences, for, in both is a capacity to purchase an otherwise forbidden deed. Bentham was clearly aware that ‘pecuniary forfeiture’ linked not only fines to licences, but also linked fines to monetary compensation for harms, to taxation and to insurance. Indeed, through the mechanism of money he envisaged an entire system of security that would be the most perfect imaginable. Two hundred years later, this remains a very contentious topic, the subject of considerable struggle over the meaning of money and its place as a punishment. Contested issues in this respect include whether money can or should be a way of ‘buying off’ other punishment and moral outrage, and whether money demeans and cheapens human worth when used in this way. Such concerns are salient, perhaps because, as Simmel suggested, money now carries a popular meaning of the commodification of those things most dear to modern human life. By and large, it has to be admitted that Bentham pays such matters little heed. For Bentham, seemingly, money solved almost every problem. But we should pay close attention to his position not simply because he is among the first to make such arguments about fines in an extended fashion, but equally because he linked them directly to the foundations of liberalism on which his work had such a marked influence.
Bentham’s terminology at first appears odd or confused, for when he refers to ‘pecuniary forfeitures’ this covers both fines and compensatory payments – both of which he regards as ‘a punishment’, in which one party is compelled to pay a sum of money to another (1962, i: 468). He soon distinguishes these into the more familiar forms of fines and damages. With fines, money is simply taken from the offender and put into the general revenue, and with damages money is given to the person harmed. Consequently he refers to the distinction between fines, forfeitures and damages as ‘having nothing to do with the nature of the punishment’, but rather stemming ‘from the accidental circumstances’ of the manner in which the money punishment is disposed of: whether respectively to the crown, some other agency, or to the party injured by the offence’ (1962, i: 468). Perhaps this is only surprising to a post-nineteenth century reader, for as will be seen in Chapter Four, until the twentieth century civil law damages were primarily regarded as a punishment rather than as compensation. To Bentham and his contemporaries fines and damages appear equally as punishments for they are ‘all reducible to the pain of privation occasioned by the loss of so much money’, while in turn it is ‘from his money that a man derives the main part of his pleasures, the only part that lies open to estimation’. (1962, 1:468, emphasis in original). Indeed, because all sanctions work through pain, and only sometimes through pleasure, elsewhere he assigned punishments and remedies to the sphere of penal law, leaving to civil law the status of ‘mere masses of expository matter’ (Bentham 1982:306).
With respect to his use of the term ‘estimation’ here, Bentham is temporarily glossing over the fraught problem of how to calculate in monetary terms some nonpecuniary harm or pain. By estimation, he is referring first to the idea that money sanctions can be graduated minutely with respect to offences, and second to the idea that money can be made to affect all persons equally. This can be read, especially in a Marxist fashion (e.g. Balbus 1977), as another reflection of the ideological flattening of class by liberalism. One of the enduring, and reasonable critiques of liberalism has, of course, been that in law it regards all subjects as equals, thus effecting massive disadvantage on those without resources. This is vividly illustrated in the law of torts, to be discussed in a later chapter, where it was conveniently imagined in nineteenth-century law that fellow workers could and should be the target for recovery of damages where their negligence caused the accident – even though they could not possibly pay adequate compensation for injury. But Bentham is not attempting such an ideological gloss. Quite to the contrary, he accepts without question that a fixed fine will affect the poor person more drastically than the rich, and argues that the size of a fine should be set by three factors: the gravity of the offence; the value of injury or property involved; and the wealth of the offender. Consequently, with respect to wealth he suggests that the precise ‘estimation’ of the punitive effect is to be expressed as the ratio of a given amount of money to the offender’s total capital. In short, pain will be delivered equally to all by expressing fines as a fraction of their wealth – and in this way he prefigured the ‘day fine’ still beloved of Scandinavians. For the moment the key point is that he ties the operation of the fine to the felicity calculus of the rational choice actor. For this reason, and because of his belief that this sanction can therefore be delivered with such equality of impact on individuals, the fine already appears as the liberal sanction par excellence. Over and above this, the fine is to be contrasted with imprisonment, because it does not interfere with liberty, while in contrast to corporal punishment, it is not complicated with a degree of ‘infamy’: the fine does not lay the state’s hand upon the offender. For Bentham (1962, i: 579) speaking as a liberal of his times, ‘all penal police consists of a choice of evils’, and pecuniary sanctions are preferred, because they deliver punishment with ‘the greatest economy of force and the most exactitude of suffering’.
Not gainsaying the fine’s value as punishment, money’s ‘peculiar excellence’ for Bentham is that it simultaneously adapts itself so precisely ‘to the purpose of compensation’. This follows because the felicity calculus was envisaged in such a way that pleasure and pain could be equated: so much anticipated pleasure to be gained illegally would be offset by law’s guarantee that pain would follow in proportion. Since the crime would take away pleasure from the victim, then its return in money form would allow the purchase of pleasure to compensate. This is almost exactly the legal rationale behind modern compensatory damages. In the same moment, compensation works as a proportionate punishment to the offender. Moreover, where there was a criminal intention to injure, rather than simply to steal or defraud, Bentham suggests that one would suffer double punishment, for ‘in having to pay compensation to one I have harmed, who may be an adversary, I would also suffer humiliation’. (1962, i: 392–394).
Through the money form, therefore, punishment and compensation merge. Hence in the closing passages of his Principles of Penal Law, in which he brings together in single point the general result of his lengthy exercise, Bentham argues that ‘by good laws almost all crimes may be reduced to acts which may be repaired by a simple pecuniary compensation; and that when this is the case, the evil arising from crimes may be made almost entirely to cease’ (1962, 1:580).
Everything that can be repaired is nothing. Everything which may be compensated by a pecuniary forfeiture is almost as non-existent as if it had never existed; for if the injured individual always receives an equivalent compensation, the alarm caused by the crime ceases entirely, or is reduced to its lowest term. The desirable object is, that the funds for compensation should be drawn from the mass of delinquents themselves … If this were the case, security would be the inseparable companion of innocence, and sorrow and anguish would only be the portion of the disturbers of the social order. Such is the point of perfection which should be aimed though there be no hope of attaining it but by degrees.
(1982:579)
In view of the fact that this was unlikely to be achieved in the foreseeable future, not least because the poverty of most offenders would preclude them making adequate compensation, then Bentham argued that compensation would have to be through insurance. But more properly, this remedy should become a cost on the public treasury, for the state had a responsibility to provide security – to the cost of which the victims had contributed monetarily through taxation – and clearly this protection had proven ineffectual. In this aspect of pecuniary justice there would be the added benefit of a spur on the state to produce a better security of the nation.
In discussing the merits and demerits of the fine, Bentham stresses that one of its prime characteristics is that in the execution of the sanction ‘no spectacle is exhibited: the transfer of a sum of money on this account has nothing to distinguish it from the case of an ordinary payment’. Perhaps this is not quite so if we consider the element of denunciation in court associated with pronouncement of the sentence. However, certainly it was to become a primary characteristic of regulatory fines that appear as simple ‘prices’. Yet it is not at all clear that he regards this as a matter of concern. Passing quickly over the issue of ‘exemplarity’ by noting that the fine has ‘nothing in particular to boast of’ in this respect, he short-circuits possible criticism by immediately linking the idea of exemplarity to the discredited punishments and ‘spectacles’ of the corporal kind. Thereby the fine is made to appear all the better because of one of its supposed failings. It is as though, for this matured Bentham, the smooth working of a system of pecuniary fines and compensations will better resolve the question of crime than any ceremonial embedded in the ‘mere masses of expository matter’ that constitute legal procedure.
In many ways, Bentham’s rather ruthlessly monetary – yet blithely optimistic – vision provides a framework for thinking about the present. After all he has prefigured something that is central to the thesis of this book concerning the embedding of fines in mundane life as a price of existence. He has made clear the nexus between fines and damages and other monetary sanctions and fiscal impositions. He has established a nexus between the fine and a liberal political rationality and raised the question of the role of insurance with respect to crime compensation – and linked all of these to monetary damages. He joins this assemblage of pecuniary justice together within his own liberal and utilitarian governmental framework. Of such a framework, of course, we could quite readily echo Karl Marx’s sneer (1976:758–759) that ‘with the driest naivety he assumes that the modern petty bourgeois, especially the English petty bourgeois, is the normal man’, and that therefore Bentham is ‘a genius in the way of bourgeois stupidity’. This is a foundation of the Marxist analysis of fine, as will shortly be seen. Alternatively, we could say, first, that it is precisely because Bentham is this kind of genius that he is important for us to attend to: he maps monetary sanctions, and especially the fine, onto a particular rationality of liberal thought. Of course, not all liberal thought takes this shape, and certainly his and Smith’s brands of relentless utilitarianism generated considerable opposition. This included opposition from those such as Adam Ferguson (1995) who decried the absence of passion and communal humane values from such a calculating vision. Even so, it is impossible to deny Bentham’s currency and influence at the time, and if it ever faded, the work of the law and economics movement over the past thirty years has done much to revive it.
The mirror of production
The work of the 1930s German scholars Rusche and Kirchheimer has become almost synonymous with a kind of narrowly economistic Marxist penology, in which the system of punishment appears as no more than a reflex of the needs and effects of the mode and relations of production (Garland 1991). While there is more than a degree of truth in this characterization, a just measure both of their achievement and their limits should take into account that they did recognize the theoretical importance of the fine and were the first modern criminologists to do so. Moreover, they did not simply deduce the status of the fine from rigid axioms about bourgeois economy and society, but attempted to historicize its conditions of its development as a principal sanction in modern criminal justice. In order to appreciate this, it is worth setting analysis of their work against the apparently more sophisticated backdrop of Evgeny Pashukanis’ Marxist theorization of bourgeois law – written in the previous decade, but seemingly unknown to them.
Because of its identification with the ‘commodity form of law’, the form of law appropriate to a system of generalized commodity production, it may be imagined that Pashukanis’ (1978) treatise Law and Marxism virtually throws itself at the question of how to theorize fines. In practice, however, Pashukanis barely mentions the topic. The one passage where this does get raised is only an aside, but nevertheless is instructive. Pashukanis (1978:181) outlines a general thesis that criminal law ‘is a variation of that basic form to which modern society is subject – precisely the form of equivalent exchange, with all its consequences’. Central to an understanding of law, he argues, is a recognition of the isomorphism between on the one hand the abstraction of commodity relations, in which all things are reduced to a universal common denominator, and on the other hand the form of law in which subjects likewise confront each other as abstract, equal and voluntary individuals. In this contractual vision of the commodity form of law, criminal sanctions appear in a particular light: the state is represented as a party seeking damages from one who has wronged it. Thus, ‘punishment functions as a settlement of accounts’ (1978:181). In the imagery of commodified relations, this settlement is effected though an abstract medium of exchange: especially time and money. Thus, bourgeois punishment’s most characteristic feature is the arithmetical expression of the severity of the sentence:
so and so many days, weeks and so forth, deprivation of freedom, so and so high a fine, loss of these or those rights. Deprivation of freedom, for a period stipulated in the court sentence, is the specific form in which modern, that is to say bourgeois-capitalist, criminal law embodies the principle of equivalent recompense. This form is unconsciously yet deeply linked with the conception of man in the abstract, and abstract human labour measurable in time.
(Pashukanis 1978:180–181)
Pashukanis’ focus on the labour theory of value projects his analysis to the question of labour time. As the underlying relation shaping law, the commodification of labour swings around the exploitation of the working class through the appropriation surplus value. In other words, the amount of value returned to labour in the wage form is less than the value that labour produces in the time for which wage payment is made. Capital accumulation occurs through the creaming off of the uncompensated or ‘surplus’ value.
That Pashukanis focuses on labour time reflects two things. First, the tenets of the labour theory of value that for Pashukanis centred labour time (later interpretations focused on labour power). Second, a taken-for-granted focus on imprisonment, and on imprisonment as simply an amount of time incarcerated. While time therefore emerges as central in this understanding of the commodification of criminal justice, this is not the only possible reading of the labour theory of value. The wage form is critical to the labour theory of value, because the money form masks the extraction of value: the wage ideologically appears merely as an exchange of time and money agreed on by contractual equals. In turn the wage form reproduces the dependence of labour on capital because labour can only buy the commodified means of survival, not the means of production. The money form of the wage is, therefore, one mechanism ensuring that labour remains separated from the means of production. Pashukanis, therefore, could have had an easy time incorporating the fine into arguments about the commodity form of law; but it is the prison and the deprivation of liberty for a fixed amount of time that occupies virtually all of his attention. At best, the implication is that money is merely the abstract medium of exchange, and so the fine is intrinsically uninteresting, because money translates to a certain amount of labour time, and thus to a certain amount of time in prison. In this reading, the prison is regarded as the principal or symptomatic sanction, the fine only an adjunct – a view that (although coming from a different political direction) replicates the assumption made by western criminologists.
Writing in the 1920s, Pashukanis’ focus on production perhaps reflects the conditions of the poor in his era – although the fashionable excesses of the Weimar Republic and the ‘flapper’ culture of the 1920s might have alerted him to the wider significance of commodification that was beginning to emerge. For a widening array of ordinary people, and certainly for the capitalist economy, money and what it could buy was perhaps beginning to lose its intrinsic embeddedness in the world of production. Consumption was stirring, but the Marxist entrapment in the domain of production restricted Pashukanis’ analysis. The theoretical and political necessity of focusing on the extraction of surplus value meant that to emphasize the domain of consumption as shaping forms of punishment was tantamount to revisionism (as it was, Stalin executed Pashukanis for his deviations). For several generations to come, the domain of consumption was to remain an epiphenomenon for Marxists, an ideological chimera. But in any case, looking beyond production relations simply did not occur to Pashukanis – or to his contemporaries – because the prison dominated criminological consciousness then, as now. There is no obvious nexus between imprisonment and consumption.
All of this was reflected in much communist law, where the fine was normally consigned to a minor role until quite recently. Grebing (1982:15) points out that in the post-revolutionary years, the fine was held in considerably bad odour in the Soviet Union and was completely omitted from the Leading principles of Criminal legislation of 1919. It crept back only for a few minor offences through the 1920s, usually where financial gain was associated with the offence. The fine was regarded as inferior to reformative sanctions, and was displaced by short periods of ‘correctional labour’. This remained true through to the 1980s where fines were seen as inconsistent with the ethos that ‘Soviet citizens possess private property as a reward for their personal participation in the process of social production’. It was held that in the Soviet Union the fine ought to be a penalty of insignificant application only, and consequently is to be used only for trivial offences (Grebing 1982:15) Like the theorists who shaped its doctrines, the Soviet state’s focus was unremittingly productivist.
Frankowski and Zelinska (1983:39) indicate that by the 1980s fines still made up only about three to four per cent of sanctions in the USSR, about five per cent in Czechoslovakia, about ten per cent in Bulgaria although climbing to about 18 per cent in Poland. In their summation they suggest that
The relatively rare use of the fine in these countries may be explained by the fact that for many years the fine was viewed with a great amount of suspicion. It was suggested by some scholars that this penalty was incompatible with some of the basic ideological premises of socialism. It was maintained that the fine was a criminal measure typical of the capitalist system in which everything, even the criminal justice system, was profit oriented.
Frankowski and Zelinska (1983:39)
Ironically, despite the focus on production, it could be argued that these state socialist examples illustrate the relevance of governing mentalities on the place of sanctions. The fine’s place was driven by the governmental vision of what it was to govern ‘well’ rather than by the needs of the productive system. The importance of official thinking about the nature of fines is something we will again see when we consider the case of the United States. Despite the Marxist views on the obvious nexus between capitalist production and fines, the most capitalist of all nations exhibits a similar aversion to fines – on the similar grounds that the fine has little or no reformative value.
Rusche and Kirchheimer continued the legacy of Marxist theory, producing what Baudrillard (1984) refers to as ‘the mirror of production’, the unintentional reproduction in form and focus of the nineteenth century bourgeois obsession with production. Yet they achieved two notable advances over the kind of commodification of law analysis represented by Pashukanis and which was reproduced half a century later by Balbus (1977). The first, as mentioned, is that they actually write at length about the fine, although again managed to do so entirely within a framework of production. The second is that in theory, if not in practice, they allow much more room for the relative autonomy of law. In their classic statement Rusche and Kirchheimer (1939:6) stress that
… punishment is neither a simple consequence of crime nor the reverse side of crime, nor a mere means which is determined by the end to be achieved. Punishment must be understood as a social phenomenon freed from both its juristic concept and its social ends. We do not deny that punishment has specific ends, but we do deny that it can be understood from its ends alone.
Instead, they argue that punishment reflects the ‘basic social relations’ in a society. Primarily, this does mean that the prevailing system of punishment is to be understood in terms of relations of production. But while they could fairly be described as narrowly economistic this does not correspond to a strict economic determinism. They stressed simultaneously that there can be no general theory of punishment because ‘punishment as such does not exist, only concrete systems of punishment’ exist, and that ‘every specific development of the productive forces permits the introduction or rejection of corresponding penalties’ (1939:3–6). This use of the term ‘permits’ says no more than that penalties have certain material conditions of existence; it does not go so far as to argue that the nature of punishment is simply an effect of the mode or relations of production. With respect to the fine this is consistent with their ultimate conclusion that ‘the application of fines has its natural limits in the material conditions of the lower strata of the population’ (Rusche and Kirchheimer 1939:176). As such, they assume both that all fines are directed primarily at the poor and that under conditions of generalized poverty the fine would not be a viable sanction, because too few could pay it. Both assumptions are questionable, probably wrong.
Rusche and Kirchheimer’s analysis of money sanctions begins with the observation that while the fine was well understood in principle by classical criminologists such as Bentham and Beccaria, fines could not be deployed to any degree before the end of the nineteenth century because of the extent of unemployment and poverty. The increase in employment and real living standards into the twentieth century provided the conditions under which the fine becomes a more generally applied sanction. Their evidence focuses on the dramatic shift in proportions of offenders imprisoned and fined in Germany between 1882 and 1932, where the percentage fined increased steadily from 11 per cent to 47.5 per cent, having peaked at 50.5 per cent in 1930 (Rusche and Kirchheimer 1939:167). Over the same period, the proportions sentenced to terms of over three months imprisonment remained stable, indicating that short periods of imprisonment were being substituted by fines. On the basis of rather thin evidence – none of which for example even indicated changing real income levels and unemployment rates, or relative rates of imprisonment and fines before 1882 – Rusche and Kirchheimer conclude that:
In general therefore the application of fines in the first half of the nineteenth century was infrequent because the necessity of commuting the punishment into imprisonment would have unduly complicated criminal procedure … The decline in unemployment and the rising living standard in the second half of the century, however, introduced a fundamental change. Many of the difficulties lying in the way of a fine system lost their force.
(1939:168)
This rather narrow point is extended by an argument that, as a corollary, during periods of depression the fine becomes less feasible, and consequently short terms of imprisonment become more prevalent. The extent to which the fine can be developed is thus ‘decisively influenced by the whole social situation and by the conditions of the various strata’, and it is concluded that ‘the poorer the population of the country, the less frequent is the use of fines for offences characteristic of the great mass of the people’ (Rusche and Kirchheimer 1939:171–173).
As it stands, this argument rests very largely on three claims. First, an implied statistical correlation although one side of the equation is merely asserted. While I don’t want to challenge the correlation’s general direction – because unless poor people can usually pay fines the sanction would not be widely used – there are some problems that make this specific interpretation bothersome. In particular, given their own assertion that economic depressions have an adverse effect on the propensity to fine, it seems strange that the severe depression of the 1890s does not appear to have registered more than the slightest hiccup: basically the rise in the use of fines appears unchecked. As well, their own data on fines during the Great Depression of 1929–1933 are problematic. Rusche and Kirchheimer (1939:169–172) put stress on the proportions of fines that are not paid in full and that therefore result in imprisonment in default. This produced the predicted increase in imprisonment. But the proportion of sentences that are fines does not decline as it should, given the severity of the depression. They dip by only three per cent throughout the period. In short, people may be unable to pay, but the courts are only marginally changing their sentencing behaviour. Their own data suggest the possibility that courts do not sentence as a reflex of the state of the economy, but are influenced far more by other considerations. In turn, while there is no reason to doubt that rising real incomes are indeed relevant in certain ways, this casts some doubt even on the argument that the basic shift from the late nineteenth century can be attributed simply to economic conditions of existence.
This doubt is intensified by other arguments they mobilize in support of their claim. To begin with, they spend some time outlining the essentially bourgeois philosophy underlying the fine by identifying various late nineteenth century views that justify the fine. These are Benthamite in form, beginning with official quotes to the effect that as ‘money had become the measure of all things’ then the fine was an appropriate punishment in a society of commodities, and that ‘since virtue is rewarded by wealth, vice should entail impoverishment’ (quoted in Rusche and Kirchheimer 1939:168). Presumably this is meant to show that the ideological conditions to support extension of fines were present, which they may be. But as these are no different to Bentham’s arguments and, as Rusche and Kirchheimer have already pointed out that such views had no impact on the viability of the fine in Bentham’s time, the best we can say is that things hadn’t changed in that ‘ideological’ respect, not that new juridical reasoning had emerged.
Much the same goes for a second bank of supporting arguments. Pointing again to contemporary legal arguments, they demonstrate the existence of official recognition that imprisonment is expensive to operate, removes the labour power of the offender from the economy, and creates a further cost to society through the need to support the offender’s family. While Rusche and Kirchheimer put a Marxist cast on these and related arguments, again they are points raised by Bentham in the 1820s. Since they had been present and prominent throughout the nineteenth century, again the best we can say is that there was likely a receptive environment for expanding the use of fines – but not necessarily a changed environment in this respect. So, everything seems to swing on an undemonstrated and historically questionable correlation between real incomes and the rates of fining.
Consequently, it is Rusche and Kirchheimer’s further claims about fines and the poor that are pivotal. They point out, quite rightly, that the problem of inability to pay that dogs the fine system is the source of endless official experimentation to make fines payable, right through from the late nineteenth century to the period in which they were writing. This problem, and the experiments to resolve it, continue to the present day. In particular, they include the rise of the arrangement whereby fines could be paid by instalments – a development implemented across Europe from the 1920s. Rusche and Kirchheimer argue that this innovation served the function of reducing the high proportion of prisoners who were incarcerated because of inability to pay fines – which in England had reached a high point of nearly half of all male prisoners and more than two-thirds of all women prisoners. Rusche and Kirchheimer conclude that scheme would ‘empty the prisons and reduce the costs and work of administration’. Certainly, as their data showed, the rates of prisoners who were fine defaulters was lowered, even if the rates of imprisonment were not. Nevertheless, in all of this claim their reasoning is quite wrong in some places and misleading in others.
The mirror broken
To begin with, it is not tenable to argue that under conditions of poverty the fine cannot operate as a mass sanction. As Sharpe (1990:20–25) and Briggs et al. (1996) have shown, fines were an important sanction as late as the mid-eighteenth century in a social order that cannot be assumed to be materially better off than that of fifty years later. King’s (1996) detailed analysis of assault dispositions shows that in the eighteenth century close to 80 per cent of convictions resulted in the imposition of a fine, most frequently of only small amounts of up to a shilling. Sharpe’s analysis of the seventeenth century likewise shows that fines were frequent and usually light, usually only from a few pence to a few shillings. As Briggs and his colleagues (1996) argue, the reason why fines were so small ‘was that they were imposed on ordinary working people, people whose incomes and resources were minimal’. In short, over a very long period prior to the nineteenth century, fines were a default sanction for minor offences. We should remember the import of Bentham’s basic observation that the fine is infinitely gradable, and recognize that this means it can be applied in measure according to the economic circumstances of the time as well as according to the means of specific offenders and the gravity of the offence.
One reason for the widespread usage of the fine in earlier periods is that prior to the nineteenth century, prisons were not generalized institutions for punishment. In one of a very few close studies of such sanctioning, King (1996) found that the end of the eighteenth century and the beginning of the nineteenth century was a period in which a major transformation in penology occurred. Following a pattern matched by that with respect to petty property crimes a few years earlier, the period from about 1760 through 1820 saw the proportion of offenders fined for assault drop from nearly 80 per cent to only 26 per cent. Corresponding with this, the proportion imprisoned rose from less than four per cent to over 50 per cent. (King 1996:48–50). Nor was this move confined to Britain. As Seagle (1948) has argued with respect to Europe more generally at this time, it was ‘the acceptance of the penalty of imprisonment (that) first relegated the fine to a comparatively minor role as a punishment for slight misdemeanours and police offences’. This dramatic shift, King (1996:64) suggests, is best accounted for in terms of both an increasing punitiveness and changing beliefs in the role of imprisonment as a correctional institution:
The writings of Howard, Hanway and others, which claimed that hygienic, highly regulated prison regimes – including regular religious instruction, strict work schedules, and an element of solitary confinement – offered a way of reforming offenders, were gaining influence. By the early 1780s, the new climate of reform … was affecting not only decisions about prison construction and prison systems, but also more general attitudes toward offenders. Magistrates and county benches were considering the possibility that minor offenders could be reformed by stricter imprisonment policies.
Already this points to the distinct possibility that the increase in fining that Rusche and Kirchheimer attribute to the material conditions of the poor, is unlikely to be related to the conditions they focus upon – even as a condition of existence rather than a cause. They suggest that the late nineteenth and early twentieth century innovations aimed at making fines more easily paid was a key factor increasing the rate of fining. True, but perhaps this reflects a question they never seriously asked. Why did fines so suddenly appear more attractive than imprisonment if people still had trouble paying them? The question is all the more pointed since we have now seen that the fine had been much more in favour only a century before.
Rather than the fine coming into existence as a generalized sanction only at the end of the 1800s, it would appear that this was the resumption of a status quo ante. Short terms of imprisonment during the nineteenth century temporarily displaced the fine from its historically dominant perch. In order to figure out why this occurred, we need to attend to what governing discourses of penality were saying at the time. Again, writing with respect to Europe, Seagle (1948:250–52) points out that it was not simply states responding to the improving material conditions of their populations that brought fines back into prominence. Rather, the leading criminologists of the time – including Garofalo, Rosenfeld, Wahlberg and Liszt – argued strongly for the fine’s restoration. In many respects, this movement merely repeated arguments that Bentham and Beccaria had mobilized, citing the stigmatizing effect of imprisonment, its cost to the family, its administrative burden and so on. But these arguments took on increasing importance as they were proposed by criminologists at a time when ‘penal modernism’ – the scientific-correctionalist movement – was coming to the fore. Even more significant, these familiar claims were joined by another argument of greater novelty and impact. It was now claimed that short terms of imprisonment were counterproductive: short term imprisonment was seen to be ‘converting casual offenders into confirmed criminals’ and to have no reformative effect. This argument took two forms. On the one side, there were those such as Garofalo (1885 [1968]: 226) arguing that imprisonment for first and minor offenders was pointless, because ‘if the occasion has been an exceptional one, if there is little likelihood of its future occurrence, there is no need of employing any means of elimination’. On the other side was an argument that was to gather strength throughout the last part of the nineteenth and repeatedly throughout the twentieth centuries: that the reformative effect of imprisonment took time, and could not be delivered in periods of only a few weeks or even a few months. Thus Grebing (1982:8–9) notes that across Europe and Scandinavia
The common basis here, resulting from the intense national and international discussion that took place towards the end of the nineteenth century, was the widespread recognition of the harmfulness and futility of the almost universal practice of imposing short sentences of imprisonment. The short prison term was seen to have neither reformative nor deterrent effects; indeed it was criticized for having criminogenic effects, especially on first and occasional offenders. The abolition or, at the very least, the general restriction of short imprisonment was demanded. It was to be replaced by other types of sanction and, above all, by the fine and the conditional sentence. For this purpose the fine would have to undergo a thorough improvement.
Perhaps now we have an answer to another troubling aspect of Rusche and Kirchheimer’s argument. If, in fact, the fine’s use expands rapidly because of the increasing real income of the population, then why does its increased usage appear to be so closely related to the beginning of a long period of innovation and experimentation that was based exactly on the opposite premise – that people could not pay fines unless major ‘improvement’ was made? As far as we can tell, in the eighteenth century, fines were levied without there being any such devices, the problem of ability to pay being dealt with by imposing fines of small amounts. Why was it at the beginning of the twentieth century that things did not simply revert to this state of affairs?
At least on the face of things, it would appear to be because the intention was to keep people out of prison if possible. But if this aim were paramount, why were fines not reduced to relatively affordable levels as had been the case in previous centuries? More puzzling still, why was it that, as Grebing’s research also shows, this was a period in which fines were increased? None of this makes sense if, as Rusche and Kirchheimer argue, a key aim was to reduce costs to the state by keeping people out of prison. In any case, the cost of prisons had been on the agenda since the time of Bentham – the period in which imprisonment had grown to be the default sanction and fines had been displaced. Rather, as the official discourse of the time suggests, the innovations aimed at making fines payable were given priority, because faith in short terms of imprisonment had been transformed. However, fines could not be reduced to trifling levels – unlike in the eighteenth century – because these fines were to appear as a plausible alternative to a significant deprivation of liberty. Basement-priced fines could only be legitimated where prison was not an alternative. Thus, the English Departmental Committee, set up in 1934 to investigate the question of imprisonment in default of payment of fines, commented that one way of reducing the problem would be for the court to ‘mark its sense of the character of the case by inflicting a fine of five shillings or less. In that event committal to prison should be an impossibility’ (Departmental Committee 1934:24). But that did not happen.
As Garland (1991:109) has argued, a general weakness in Rusche and Kircheimer’s account is that the analysis simply maps out historical correlations between penal policies and practices and imputed economic interests, assuming that all intervening processes – such as prevailing political conditions and prevailing governmental meanings of penality and its purposes – are ultimately irrelevant. However, to make a plausible case, Garland points out that it would be necessary for them to show how the policymakers recognized the needs of the production system. When we do attend to official and expert discourses that are repeated across many jurisdictions, they do not mention production. Rather, the re-emergence of the fine as a generalized sanction during and after the late 1800s was linked to a belief in the limits of penal correctionalism.
This is not to say that in such cases the fine had a role only as a residual category, for it was still regarded as a punishment in its own right and, in this respect, little or nothing may appear to have changed since the seventeenth and eighteenth centuries. While the rejection of short terms of imprisonment on correctional grounds does appear to have been the critical factor in the rise of the fine in the early twentieth century, this was not the only discourse that was relevant. As Garland (1985) has shown, the ‘triumph’ of correctionalism at the end of the nineteenth century was never complete. Punitive discourses remained prominent in penal politics, both opposing therapeutic reform in the name of punishment and responsibility, and braiding punishment and correction together in the compromise that Garland referred to as the ‘welfare sanction’. Thus, while the re-emergence of the fine was based on the failure of corrections, punitive rationalities were readily available as the stand-in solution. By the 1930s, for example, we find official discourse in Britain regarding the relationship between fines and imprisonment – including the problem of default – in terms that frame the fine more in terms of a punitive scale:
In the majority of cases where fines are imposed the nature of the offence and the character of the offender are such that a sentence of imprisonment is inappropriate, because it is too severe and liable to have too damaging an effect on the career of the offender. The Court expects that the fine will be paid and that there will be no question of imprisonment. If imprisonment follows because of the failure to pay the fine, the intention of the Court is frustrated … (because) his offence is one which the Court does not hold to deserve so heavy a punishment, and it is certain that were it not for his pecuniary default he would not actually go to prison.
(Departmental Committee 1934:10)
Both correctional and punitive rationalities thus regarded imprisonment for default to be a problem, and – as in the case of the government body just quoted – strongly supported innovations to deal with the ‘problem’ of default.