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September 17, 2009

"Theorizing Fines"

The title of this post is the title of this new piece I just noticed on SSRN from Professor Pat O'Malley of the University of Sydney.  Here is the abstract:

Given their central place as a sanction in criminal justice, the virtual absence of a theoretical literature on them is a serious deficit. The paper reviews the principal contributions to date, and argues that they suffer from a misleading conviction that sanctions are driven by production relations. To begin with, this seriously underestimates the impact of penal discourses and practice, which can better account for variations in the rise, uneven distribution and recent decline in fines' dominance as a punishment. Equally important is the failure to consider the nexus between the rise of the modern regulatory fine (for example 'on the spot' fines) and the rise of consumer societies.

From my perspective, it is not all that surprising that there is a virtual absence of a theoretical literature on fines in American academic literature because fines here in the US do not have a central place as a sanction except for traffic offenses.  I sincerely wish and hope that one consequence of lean economic times and the high costs of imprisonment might lead some US jurisdictions to more seriously consider a great use of fines as a punishment for more serious offenses.

September 17, 2009 at 09:35 AM | Permalink


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Well, we don't fine PEOPLE much for serious crimes, but corporations frequently pay fat fines for bribery (dubbed "deferred prosecution agreements" by the feds) and avoid other forms of liability.

I've not seen much theorizing regarding those arrangements, either.

Posted by: Gritsforbreakfast | Sep 17, 2009 10:31:37 AM

Great point, Grits.

Posted by: Doug B. | Sep 17, 2009 11:11:41 AM

Fines have declined in importance in American criminal justice for a couple of reasons.

First, one of the main criteria for making something a crime rather than a tort is that the damage done routinely exceeds the ability of the offender to provide a full tort remedy, so we punish them instead to discourage this kind of conduct. Consider that something like 80% of criminal defendants are represented by public defenders because they are officially determined to be indigent. Those who are not found indigent for that purpose are nonetheless rarely affluent. Just 1% of people incarcerated in the Colorado Department of Corrections have an associates degree or higher level of education, for example.

Second, where criminal conduct is profitable, civil forfeiture as eclipsed fines as the remedy of choice, since there is less due process involved and it prevents criminal defense attorney costs from dissipating the funds. Local law enforcement also often benefits more directly from forfeitures than fines.

Fine enjoy their prominent position in Europe's criminal justice system in part because imposing them works better in a society where a far smaller share of offenders are utterly destitute.

Posted by: ohwilleke | Sep 17, 2009 1:48:25 PM

The Supremacy may or may not have gone through a solid red light. The fine for this infraction was $25. Fair enough if guilty. However, SC looks at the ticket. There are charges for a medical malpractice fund, for an ambulance fund, and to computerize the court. It added up to $110. Let the judge get his own damn laptop like the rest of us. These fines are confiscatory revenue raisers, and unconstitutional. The police does not have the power to raise revenues. If it had been a drunk driving charge, the lawyer scam would have had 4 numbers, not three.

The outrageous and damaging excessive fines of drug companies for speech, without evidence of physical harm to anyone, are pretextual oppression by the federal cult criminal. Indeed the promotion of off label use of a medication may have helped many patients.

The Supremacy may buy a share in every drug company to get standing to go after the federal thug. The fines went to finance lifestyle of parasitic lawyer clients from general revenue. Meanwhile, the lawyer predator has just eliminated the research budget for the next useful medication for old people, like the Supremacy. The latter takes this lawyer confiscatory scam personally.

Obama's choice for the Supreme Court wants to end 150 years of corporate law. She does not believe corporations are fictional persons, nor that they have any rights, such as freedom of speech. So these confiscatory scams for bogus and infinite malum prohibita, lawyer gotchas, and plunder of corporate research budgets will explode, if she has her way.

Posted by: Supremacy Claus | Sep 17, 2009 7:30:19 PM

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