The Criminal Justice Policy Program’s report, The Limits of Fairer Fines: Lessons from Germany, assesses whether day fines (proportionate fines tailored to people’s ability to pay) hold promise as a solution to high fees and fines.
Over the course of one year, we traveled to Germany, home to one of the oldest day fines systems, and interviewed over 50 judges and prosecutors about how day fines work in practice and their views about whether day fines further equality and justice. The report includes an overview of Germany’s system, an assessment of what is and is not working there, and implications for the United States.
Overall, we found that day fines may be helpful in some jurisdictions to reduce the worst harms of high court debt. We found that it is possible to shift a criminal legal system so that actors understand the importance of considering people’s economic realities. But we also found significant challenges to adopting day fines (or similar ability-to-pay reforms) in a way that truly reduces the burdens on people with lower incomes.
We found three specific barriers to transformative change:
- Merely requiring consideration of ability to pay upfront will not change much without meaningful guidance to courts about how to calculate fines. Jurisdictions would have to adopt a clear formula that requires courts to truly account for people’s financial circumstances.
- Despite ability-to-pay reforms, decision makers tend towards imposing the same fine amounts they always did, while justifying their decisions under the new system’s frameworks. In this way, new day fines systems remain pegged to the jurisdiction’s old, punitive ways.
- Judges and prosecutors fail to truly understand the socioeconomic circumstances of people with lower incomes who come before the court, and therefore overestimate how much people can afford. Judges and prosecutors compare fine amounts to what they can afford and therefore charge low-income people what higher-earners like themselves can pay. Or they believe that people aren’t trying hard enough to pay, even in the face of clear evidence that people simply don’t have the resources. In both cases, courts use their discretion to set fines that are not truly tailored to the person being sentenced.
Jurisdictions would have to overcome these challenges for day fines to be impactful, and these barriers will be hard to overcome given our current cultures of punishment and inequality. If day fines are implemented without addressing these points, they may not change very much in the system. Importantly, even if implemented in a robust way, day fines can only reduce harms: fines will always impact people will lower incomes more than people with higher means. Our report includes a decision chart for jurisdictions to follow as they consider and design day fines.
Our research also revealed how day fines reforms may distract from more necessary and fundamental reforms in our misdemeanor courts, such as rightsizing our court dockets. Our misdemeanor systems are unjust not only because punishment isn’t right sized—they are also unjust because they target low income people and people of color to raise revenue, and punish far too much. Our research in Germany revealed that, in many cases, advocacy may be more effective if it aims to undo these harms directly rather than focusing on better tailoring of punishments that we should not be imposing at all.
CJPP also partnered with Fair Trials, a global criminal justice reform organization to bring additional context to the question of the role of day fines in U.S. courts. Fair Trials’ companion report, Day Fines Systems: Lessons from Global Practice, offers summaries of practices in other day fines jurisdictions across Europe. The report includes information about how other countries define ability to pay, the consequences of non-payment, and how day fines fit within overall sentencing practices. This comparative analysis will be invaluable to U.S. jurisdictions addressing high fees and fines.