Regulatory fines
Chapter 3
Regulatory fines
From a policy perspective the distinction between “pricing” through civil penalties and “prohibiting” through criminal penalties leads to an obvious question: why should society ever prefer prices over the more effective weapon of sanctions? One reason is obvious. When society wants not to proscribe the activity, but only to reduce its level, it should use prices.
(John Coffee 1992:1886)
At the end of the previous chapter it was noted that Rusche and Kirchheimer (1939:173–176) distinguish two classes of fine associated with the modern era. The first and familiar one was the traditional penal fine associated with criminal justice, and this was to be the central focus of their attention. But a second form of fine already had become prominent when they wrote, one they referred to as ‘administrative’ and that related to more or less mundane breaches of regulations. In their analysis, this in turn fell into two forms: violations of police regulations and violations of labour laws. While there are slight differences between these two forms (primarily related to the class of those being regulated) both were seen to be characterized by the fact that they do ‘not penetrate into the offender’s life’ and apply to ‘merely technical offences (that) are not accompanied by any feeling of guilt or wrongdoing’. The concern of such regulation is not with reforming, punishing or incapacitating – ‘the state’s sole interest in such offences is to compel obedience by levying sufficiently large fines … it levies fines because it dislikes the activity but it is not seriously prepared to put a stop to it’ (Rusche and Kirchheimer 1939:176). The implication is that – apart from the death penalty – only by imprisonment does the state demonstrate serious intent.
In the most significant theoretical treatment of the fine to date, Anthony Bottoms (1983) also focuses on the administrative fine – what he refers to as the ‘modern fine’ – as a unity incorporating fines for ‘motoring offences and the agency prosecutions as opposed to the indictable offences’ (1983:201). Like Rusche and Kirchheimer, he homes in on the issue of the fines’ lack of penetration into the life of the offender. The ‘modern fine’ is distinguished from the penal fine by the fact that ‘in an earlier era the fine was often closely connected with imprisonment through the default mechanism: in England and Wales, in 1910 almost 20 per cent of all persons fined were eventually imprisoned for default, but by 1940 this figure had dropped to 1 per cent’. (1983:201n8). We will need to consider further just why the question of imprisonment is so important to Bottoms, but here it should be stressed that this figure of one per cent is potentially confusing. In practice the rate of imprisonment in default of paying penal fines had reduced little since the early 1900s. As Young (1989:47) notes, at the time Bottoms was writing in 1983, in the UK, over 45 per cent of annual male prison receptions were for fine defaults. It is a figure that had hardly changed in the 70 years since 1913, when Rusche and Kirchheimer (1939:169) recorded it at just under 50 per cent. The decline to one per cent default for all fines reflects the phenomenally expanding ratio of modern regulatory fines to penal fines – for by contrast those offenders attracting the ‘modern fine’ are rarely in danger of imprisonment if they default in payment.
In his exhaustive empirical study of modern regulatory fines in Australia, Fox (1995, 1996) maps out key dimensions of this changing ratio of penal to regulatory fines, especially with respect to the innovation of ‘infringement notices’ and so-called ‘on the spot fines’. In the state of Victoria, these were introduced originally during the 1950s with respect to road traffic offences, especially parking related issues. They encouraged offenders to escape court appearance by paying a fine in short order and without contest. In large measure Fox sees such regulatory fines as a simplified and cheap way of dealing with the exponentially increasing volume of cases that such offences created for the criminal justice system. In turn, their cost effective nature made these fines an attractive technique, which led to their application to more numerous and more serious offences. Fox (1995:1–6) notes that in 1965 on the spot fines applied to some eleven traffic offences and that penalties were generally for amounts of a few dollars. By 1992, the number of such traffic offences had increased to more than 200, a substantial proportion of the total of 385 traffic offences at the time, while maximum penalties were no longer trifling but ranged up to $900. Over this period too, on the spot fines were adopted as a sanction by a wide range of government and semigovernment departments, and particularly by local governments, as penalties relating to bylaws. In this respect, especially prominent were parking regulations. While stressing that his estimation understated the total number of offences subject to these fines, Fox counted nearly 800 offences dealt with by infringement notices.
By the early 1990s, it had become the case that for every summary charge coming before the magistrates’ courts, more than seven criminal matters were dealt with by on the spot fines. While this registers the importance of the regulatory fine in criminal justice, some 123 other agencies outside the criminal justice arena were empowered to levy such fines. In Fox’s study (1995:89–94) police issued only about a third of such notices, with local government issuing about 60 per cent. In a single year, these agencies together issued nearly 2.5 million fines to a total state population of less than 4 million. While traffic offences constituted the vast bulk of matters subject to such regulatory fines (well in excess of 90 per cent), Fox maps out the administrative fine’s application to such matters as environment protection, building and housing, food, litter, taxation, public safety, noise and nuisance, customs, mineral resources, shares and securities, gambling, weights and measures, dangerous goods, occupational health and safety, and many others, including labour law (1995:39–47). In short, it is hard to imagine an area of life that now is not in some way governed through the regulatory fine.
This massive expansion of the regulatory fine relative to the penal fine was not the principal concern of Bottoms – although it will become an important feature of my analysis. I will argue later that the permeation of the regulatory fine into all areas of life, and the sheer volume of such fines in any jurisdiction, renders this type of fine more or less indistinguishable from other monetary forms such as prices, licence fees, taxes and administrative costs. However, Bottoms focuses much more on the observation that imprisonment is rarely the sanction available in default of payment for the regulatory fine. With this more or less accurate observation under his belt, Bottoms then proceeds to use it as a pivot for theorizing the place of fines in contemporary society. Of course, before even moving onto his theorization, an easy criticism of Bottoms would be to point to the large number of exceptions to his claim. In practice, in many jurisdictions regulatory fines associated with ‘infringement notices’, ‘violations’ and similar forms of offence may be enforced in default with a term of imprisonment. This is especially so where the offender refuses to pay the penalty rather than simply is unable to pay it. But, in support of Bottoms, it should be noted that as Fox’s exhaustive study indicates, far less than one half of one per cent of regulatory fine defaulters is ever imprisoned. For the most part, in marked contrast to penal fines, regulatory fine defaults are dealt with by other means.
In many jurisdictions, regulatory fines, especially those related to parking offences, are dealt with as civil matters from the outset and thus can result in imprisonment only through unusual and circuitous procedures. Even where the matter remains a criminal concern it is possible to point to a considerable variety of responses to the problem of regulatory-fine defaulters. In some cases, courts may issue arrest warrants, or the matter is turned over to the sheriff’s office, where this exists, as a form of bylaw enforcement agency. In such cases, fines may be recovered by confiscation of assets as well as by more routine debt collection techniques. In other cases, fine defaults become a matter for private debt collectors. In Scotland, Duff (1993) reports that the fiscal fine was borrowed from Continental practice with the aim of reducing pressure on the courts. Those who accept the offer of a fiscal fine no longer become subject to criminal proceedings, even in the event of nonpayment. Outstanding payments are only enforceable through civil debt procedures and thus cannot lead to imprisonment. In still other jurisdictions, special and relatively bureaucratic courts are established in order to deal with these matters. For example, in the Traffic Courts that exist in many US cities such as Philadelphia, the routine response to default is to charge a further fee for administrative costs and suspend the driver’s licence.1 In other jurisdictions, especially before the mid-1990s, fine defaults simply were not followed up at all, even where imprisonment may technically exist as an available sanction. In the case of the infringement notice system in Victoria, for instance, it was estimated that by 1994 warrants held by police for outstanding court fines amounted to more than $270 million owed by nearly 108,000 individuals and entities (Fox 1995:123–125). While this appears consistent with Rusche and Kirchheimer’s view that the state is not serious about putting a stop to such offending, a key reason for such difficulties was that of tracing offenders and then demonstrating that the specific individual had been the offender – for example, proving that she or he had been the driver on the occasion when a vehicle was recorded speeding. In turn, it was not so much state apathy that explained this ‘failure’, nor even the fact that offenders routinely ignored notices. Rather it was the unprecedented scale of the problem. Thus, in practice, while sheer numbers of defaults were very large, these represent a small proportion of all infringements – Fox’s later work shows in Victoria that over 90 per cent of on the spot fines were paid within the time stipulated (Fox 1999:4).
As Fox points out (1996:6), this issue of the sheer volume of cases, and the resulting volume of unenforced notices, was the major determinant in the development of ‘simplified’ procedures in Australia and the United Kingdom. When these notices were first developed, if payment were not made, the infringement notice had to be withdrawn and the matter proceeded in the conventional mode of a formal charge and summons. ‘This brought the matter to court, but the scale of defaulting made this option unmanageable. Sheer numbers created insuperable difficulties’ (Fox 1996:6). The solution was to streamline procedure and increase the throughput of cases by defining nonpayment ‘as though it were already an unpaid judicially imposed fine’, even though no conviction had been registered. Thus, one of the principal responses to administrative difficulties associated with the increasing volume of regulation has been to overturn traditional principles of justice, and to establish reverse-onus requirements across a broad array of parking and moving violations. Under such innovations, for example, the owner of a vehicle was assumed to be responsible for any violations, even speeding and red light violations, unless she or he could demonstrate otherwise.
I would argue that such responses to fine defaulting are indicative of the ‘only money’ status of the regulatory fine. The penal fine also may be just money, but it bears with it the probability of imprisonment in default, and is thus linked directly to deprivation of a generalized liberty of movement, employment, association, sometimes enfranchisement and so on. These are liberties common to all adult citizens, indeed in substantial degree definitive of legal subjects in a liberal polity. That such basic and pervasive liberties are at stake for nonpayment is indicative of the implication that the offences – even if initially punished by a fine – are governmentally defined as ‘penetrating’ to the generalized legal and moral status of the subject. But with regulatory fines, usually what is at stake in default is some other sanction, for example, removal of a specific license – the specially bestowed (and often purchased) right to drive, to sell food, to operate machinery and so on. Rather than threatening liberty at large, it threatens specific and delimited privileges. In line with this, it is difficult to pass by the point that because the regulatory fine short-circuits the likelihood of imprisonment in default, it is liberated from the traditionally onerous procedural rules that are intended to protect the accused in the otherwise uneven contest with the state. I will return to this shortly. But at this point, it is the specificity of the sanction’s target that seems vital. The offender normally is not addressed principally as a person, but primarily as a driver or owner of a motor vehicle or in some other specific capacity, such as a proprietor or operator. With parking fines, the subject is erased altogether and replaced by a vehicle registration number. Rusche and Kirchheimer’s observation that the regulatory fine does not penetrate the life of the offender is well illustrated here. Liberty is not at issue because the individuality of the offender is not at issue, only a specific role or ‘dividual’. In this respect, the fragmentation of the legal subject allows a certain degree of anonymity to be attached to those sanctioned through the regulatory fine. Perhaps too this allows us to add precision to Rusche and Kirchheimer’s sense of the ‘seriousness’ with which the state regards such offences. It may be more precise to say that where the regulatory fine is applied, the generalized moral character and liberty of the offender is not the issue. Rather, it is the continued licence to engage in certain practices.
In this light, the fine becomes akin to a premium, such as may be applied to drivers’ insurance policies: an additional cost incurred in order to retain a certain contractual right that has been violated. Consider two examples of sanctions articulated with the regulatory fine. In the first example, the state confronts the fact that drivers opt to park in ‘no parking’ areas or overstay at a parking meter. They may do so, choosing to pay a premium fee in the form of a ‘fine’ rather than go to the trouble of moving the car to some other location. In most jurisdictions, as long as the offender pays the fines, this offence may be repeated indefinitely without further consequence. However, this toleration changes where the authority determines that such parking is too problematic to tolerate, for example where the traffic lane becomes subject to ‘clearway’ provisions at peak hour, or where the area is required for access by emergency vehicles or public transport. Here the frequent response is removal and impounding of the offending vehicle: the ‘tolerance’ or ‘porosity’ of the fine reaches its limit, especially where the parking problem affects ‘the public interest’. In the second example, drivers may opt to speed or to run red lights, and pay the premium fine should they be detected. Fines are the most frequent response to these offences, but in the name of public safety and the public interest it is comparatively rare for this to be the only available sanction for repeat offending. Beginning in the 1960s, many jurisdictions linked fines to the accumulation of ‘demerit points’. For more serious offences the porosity of the fine is reduced. It is still the case that repeat offences may be tolerated – but only to a degree. Once a specified total of demerit points is passed, then the driver’s licence is suspended or revoked.2
While there is a vital element of deterrence and punishment built into this kind of response, it is also a strategy of risk management. Infractions are tolerated, providing the money is paid that grants this reverse-licence, but where the offence carries a significant burden of risk – as with red light offences or speeding – demerit points work as a risk-indicator. High risk drivers then are subject not simply to another level of punishment, but to a sanction characterized by specific incapacitation. If risk-based imprisonment incapacitates the repeat offender in terms of their general liberty and in the name of public safety and risk-reduction, so these sanctions in support of the regulatory fine incapacitate the risky driver, operator of a restaurant or factory, the owner of a risk-prone apartment building, or whatever, only with respect to their risky activity, not their general liberty.
In such examples, regulatory fines appear not so much to be driven by the desire to punish or correct, per se, as by pragmatic concerns with rates and distributions of behavioural regulation. Certainly, punishment is often present in rationalities of the regulatory fine (Young 1989; Duff 1993), but rather than being tailored to the needs of a specific individual as in correctional sentencing it is directed at a rational choice actor, in the form of general deterrence. The sanction is delivered ‘in situ’ rather than in special institutions. While this is true to a point for the penal fines – although that is at least in principle tied to personal court appearances – regulatory fines are delivered anonymously, appended to windscreens, handed out on the spot, or sent through the mail or even email, paid by cheque or electronic transfer. They are embedded in everyday life rather than singled out for special treatment in contexts set about by the trappings of justice.
While this may reflect the triviality of the violations, or more simply the desire to reduce workload pressures on the criminal justice system, there does also seem to be something else at work. Indeed, for most regulatory fines, it is the characteristics of the situation that is the primary object of governance: the spaces and speeds, flows and obstructions, the risks of collision, risks to public safety, rather than the specific individual that is the object of governance. The latter, at best, becomes significant only at the risk threshold for demerit points and the like. With such violations as speeding, parking and red-light offences, the focus is on questions related to circulations, flows and volumes – of maximizing the circulation of traffic within boundaries of public safety. Individual deviations become less significant than overall security and efficiency, and in this light the imperative to identify and punish every breach becomes less significant than do the pragmatics of ‘efficiency’. On this matter Foucault (2007:19–20) has something very relevant to offer.
Discipline works in an empty artificial space that is to be completely constructed. Security will rely on a number of material givens. It will of course work on site with the flows of water, islands, air, and so forth. Thus it works on a given (that) … will not be constructed to arrive at a point of perfection, as in a disciplinary town. It is simply a matter of maximizing the positive elements, for which one provides the best possible circulation, and minimizing of what is risky and inconvenient, like theft and disease, while knowing that they will never be completely suppressed. One will therefore work not only on natural givens, but also on quantities that can be relatively, but never wholly reduced, and since they can never be nullified, one works on probabilities.
Security in this fashion deals with the future. It is not concerned to correct past problems, to establish rectitude and punish moral wrongs, but to ensure as far as possible that unwanted situations will not occur again – or more precisely, will reoccur only with tolerable infrequency. The result is a government of the imperfectly calculable, distributional future (Foucault 2007:20). This, he regards as the ‘essential mechanism of security’. It is at this point that we must turn to Bottom’s landmark analysis.
From punishment and discipline to punishment and regulation
Following Rusche and Kirchheimer’s (1939) comment that such fines do not penetrate into the life of the individual, Bottoms argues that the ‘modern’ fine is not disciplinary but regulatory. Unlike penal fines, such regulatory fines are not focused on individuals and their motives but on the statistical distributions which individuals compose: regulatory fines are intended to produce aggregate effects on the frequency of behaviours rather than the correction of individuals. In Bottom’s view what differentiates the regulatory fine from the penal fine is that the latter is ‘dependent still upon the possibility of a disciplinary penalty being applied in appropriate cases’ (1983:197–198) whereas the regulatory fine is not. He times the critical period for the growth of the regulatory fine as during the postwar era between 1945 and 1965, a period which is ‘with justification, generally regarded as the time of maximum growth in the influence of the scientific rehabilitation of offenders’ (1983:193). He argues that scientific rehabilitation differentiated the fine and imprisonment in a new way, for as the prison becomes more and more disciplinary and correctional, its distance from the nondisciplinary fine increases. A bifurcation began to open out between more problematic crimes dealt with by correctional sanctions and less problematic offences that are dealt by modern regulatory fines in the community. Penal fines, it would seem (although Bottoms never outlines this explicitly) are a compromise in which those offenders in the no-man’s-land between the two are in a sense put on a form of probation. Indeed, probation is one of the other sanctions that Bottoms slots into a ‘non-disciplinary’ category of sanction on the grounds that for the most part it imposes merely a reporting requirement.
Bottoms’ principal concern is with the implications of the modern regulatory fine for the prevailing ‘dispersal of discipline’ thesis of 1970s and 1980s criminology. This thesis, associated primarily with the work of Stan Cohen (1979), saw the rise of the penal penumbra of ‘community sanctions’ as part of a process whereby disciplinary control was penetrating civil society. The ‘net widening’ and ‘mesh fining’ processes associated with community sanctions were seen to draw more and more people into the orbit of control apparatuses. However, Bottoms argues that some of the most significant sanctioning developments at the time – probation, the fine and suspended sentences especially – were not primarily disciplinary at least in the sense of correctional interventions aimed at normalization (Bottoms 1983:180). He notes that the English legal system’s differentiation between indictable and summary offences corresponds closely to Rusche and Kirchheimers’ distinction between ‘criminal’ and ‘administrative’ offences, and suggests that while the more serious indictable offences were becoming increasingly subject to scientific correction in prisons, the less serious and rapidly growing array of summary offences were becoming subject to nondisciplinary regulation through fines – so much so that about 97 per cent of summary offences were being disposed of by fines.
In this analysis, Bottoms focused on Foucault’s (1984) distinction in The History of Sexuality Volume 1 between the anatamo-politics of the human body, and the biopolitics of the population. While the former is associated with individuals and discipline, the latter is focused on populations and ‘regulatory controls’. Bottoms also highlights Foucault’s observation that regulation is becoming increasingly significant, and he draws the conclusion that the rise of the fine is to be theorized in terms of the shift in technologies of government from the disciplinary to the regulatory. Regulatory governance is concerned with behaviours – primarily with obedience rather than with what Foucault referred to as understanding and changing the ‘soul’ of the unique individual offender. This is highlighted by the fact that many offences associated with the regulatory fine are strict liability offences: conformity is more important than consent; behaviour is more important than intent; and mens rea is largely dispensed with in practice. Thus, Bottoms observes that
… the fine as an impersonal and calculable penalty … fits well into the mind-set produced by this specificity of social control. If the offender has not been, and is not to be investigated as a whole person, it scarcely makes sense to subject him to specific disciplinary and corrective techniques designed to bring the soul in the body into the status of the obedient subject – the focus of Foucault’s disciplinary apparatus
(Bottoms 1983:190)
We can see immediately that this does not apply to the penal fine, which (in intent at least) is focused on the individualized offender and a moralized offence that is pursued by police and courts in a fashion identical to many other offences, including those that can result in sentences of imprisonment. By way of contrast, Bottoms (1983:187) argues that regulatory inspectorates, whose principal sanction is the regulatory fine, are much more concerned with securing conformity than making moral points in courts. Thus, traffic police are ‘essentially interested in the safe and efficient flow of traffic, rather than with stamping out morally undesirable behaviour’. Indeed, Bottoms makes the key observation that what had changed with respect to the modern fine and regulation since Rusche and Kirchheimer’s time was the rise in volume and use of motor vehicles and the problems of governance this created. Thus, he notes that by the time of his writing, 75 per cent of summary offences were motoring offences and nearly 99 per cent of these were disposed of by fines (Bottoms 1983:185). He used this observation as the launching point for his principal theoretical contribution.
In the road-traffic sphere, the primary mode of social control is environmental, through what Karl Llewellyn in his law jobs theory called the ‘preventative channelling’ of traffic lights, stop signs, parking restrictions, adequate road design and street lighting and so forth. In … these areas of ‘modern crime’ therefore we have preventative social control systems backed up by the fine (and other juridical penalties such as disqualification). Disciplinary punishment is not necessary to achieve control.
(Bottoms 1983:187, emphasis in original)
However, this shift is highly significant to understanding the fine, for the rise of actuarial justice and risk-based incarceration in some ways severs the nexus between discipline and imprisonment that Bottoms wishes to centre. If prisons come to be associated merely with risk-reducing incapacitation rather than correction, then not only do they become less disciplinary, but in the same process they also become more regulatory in Bottoms’ and Foucault’s sense. The concern of risk-based incarceration is not with disciplinary reform but with reducing the risk across the population by removing risky offenders from circulation (Feeley and Simon 1994). This creates a potential problem for Bottoms’ analysis, because he suggests that the penal fine is ‘dependent still upon the possibility of a disciplinary penalty being applied in appropriate cases’ (1983:197–198). However, to the extent that prisons no longer correct, then the penal fine has no dependent or necessary relationship with discipline per se. Rather, its characteristic relationship would appear to be specifically with the prison, and as suggested already, with the sanction of deprivation of liberty. If so, then it is relatively unimportant whether this prison time is filled with correction or is simply the ‘empty’ time of incapacitation or punishment. What matters is simply the nexus between the penal fine and the threat of imprisonment in default of payment.
In this way, Bottoms’ thesis need not centre the disciplinary prison – this is something foist upon him by his decision to link his argument to the critique of the ‘dispersal of discipline’ thesis. His case could be reformulated to suggest that the move toward regulation has impacted on fines and prison alike. But to pursue this, we need to examine his thesis more closely. For Bottoms, the shift toward regulation was related to three linked features that were associated with the ‘change from early industrial capitalism of 1800 to the much more technologically advanced welfare-capitalist society now operative in Britain’. (Bottoms 1983:187). These were the development of new surveillance technologies, the changing nature of work, and the growth of welfarism.
While Foucault had allowed that factory discipline and the interests of capital were important sites for the promotion and growth of discipline, he did not make this central – a fact that gave rise to both considerable criticism by Marxists at the time, and led to a kind of Marxist rewriting of Foucault’s insights (Melossi and Pavarini 1981). In this Marxist view, it was the needs of the production system that gave discipline its prominence in modern life, and it is this theme Bottoms picks up. To Bottoms, if discipline had once been critical to the factory and work relations under capitalism, this was changing with the development of automated production. Worker and machine, he argues, essentially become fused. Discipline is built into the design of the machinery. As the factory takes on the form of technological control that electronically and mechanically sets the pace and quality of production, then discipline of labour ceases to become as necessary. Bottoms, following the leads given by Melossi and Pavarini (1981) and Lea (1979), suggests that the Fordism and Taylorisation of the factory were shifting the focus of control from the factory, where it was no longer essential, to the control of civil society, where legitimation crises were rising. In this he approvingly quotes Melossi (1981:392):
The entrustment of discipline to the machine in the Taylorised factory shifts the emphasis of social control to the learning of discipline as a highly automated process, to be carried on for everybody at an early age. For adults, consensus and legitimation are needed. At the same time social control follows the movement of capital from within the factory to the outside: the city itself, the urban areas must be controlled … The new epoch of welfare is announced. And with it the era of policing … Both the welfare system and policing are much older creations but they had their first generalization and massification in the twenties.