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Paying one’s dues : the fine as the sentence of the court Edelman, Sandra Dale 1985

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PAYING ONE'S DUES: THE FINE AS THE SENTENCE OF THE COURT by SANDRA DALE EDELMAN B.A., Simon Fraser University, 1976 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (Department of Sociology) We accept this thesis as conforming to the^cequired standards The University of B r i t i s h Columbia April 1985 © S a n d r a Dale Edelman, 1985 In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t of the requirements f o r an advanced degree a t the U n i v e r s i t y o f B r i t i s h Columbia, I agree t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and study. I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e copying o f t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the head o f my department o r by h i s o r her r e p r e s e n t a t i v e s . I t i s understood t h a t copying or p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be allowed without my w r i t t e n p e r m i s s i o n . The U n i v e r s i t y o f B r i t i s h Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Department o f DE-6 (3/81} i i ABSTRACT This thesis i s about the f i n e , an everyday transaction of an involuntary nature, resulting from the finding or deeming of g u i l t by a criminal court. Existing l i t e r a t u r e and o f f i c i a l s t a t i s t i c s are reported to describe the use of the fine in Canada and abroad with p a r t i c u l a r emphasis on the situation in the Province of B r i t i s h Columbia. The f i n e i s found to be a common disposition for property and motoring offences and even for crimes of violence against persons in most of the countries reviewed with the notable exception of the United States which u t i l i z e s the fine for motoring offences but for l i t t l e e l s e . Based on the available evidence, the f i n e appears to be steadily increasing in use in Western European countries and in England but this i s not s t r i c t l y the case in B r i t i s h Columbia. The overall proportion of offenders receiving fines decreased recently in B.C. due i t seems to the imposition of short term j a i l sentences rather than the fine for provincial statute offences. This i s believed to r e s u l t from "get tough", law enforcement p o l i c i e s directed at the more serious motoring offenders. Recent data on the use of the fine in the remaining provinces of Canada are not available. The fine i s examined also in terms of i t s e f f i c i e n c y and effectiveness as a sanction and the extent to which i t demonstrates both economy, as a social control technique, and notions of social j u s t i c e and humaneness. Payment of the fine with l i t t l e or no enforcement i s the norm, due in large part to the practice of f i n i n g "good r i s k s " , i . e . , casual offenders l i k e l y able to afford the f i n e . For the same i i i reason, the recidivism rate of fined offenders i s lower than that for offenders placed on probation or imprisoned. The most pressing problem associated with the f i n e i s the u t i l i z a t i o n of imprisonment for offenders who default in payment. This practice i s not only costly but raises the issue of the social j u s t i c e of the fine since those imprisoned are more l i k e l y to have no means of paying the i r penalty. For t h i s reason, the day-fine system which calculates the size of the fine according to both the seriousness of the offence and the offender's a b i l i t y to pay i s considered as a scheme which upholds notions of fairness and j u s t i c e . The fine exercises the least surveillance and consequently control over the behavior, and i n d i r e c t l y the attitudes, of offenders. As a res u l t i t i s one of the least expensive sanctions to administer, p a r t i c u l a r l y when the practice of imprisoning defaulters i s c u r t a i l e d . The f i n e and i t s administration by the j u s t i c e system i s considered also within the context of the structural mechanisms, functions, and finances of the state. The fin e affords a concrete example of the dynamics of the state as i t attempts to balance i t s major, a l b e i t often contradictory, functions of accumulation, legitimation, and coercion. .iv TABLE OF CONTENTS ABSTRACT . . i i LIST OF TABLES v i i ACKNOWLEDGEMENTS v i i i CHAPTER 1. INTRODUCTION A. General Overview 1 1. The Purpose and O r g a n i z a t i o n o f The T h e s i s 9 CHAPTER 2. METHODS A. Review o f The L i t e r a t u r e 13 B. C o m p i l a t i o n o f O f f i c i a l S t a t i s t i c s 14 1. S t a t i s t i c s Canada 14 2. B.C. C o u r t Data 15 3. B.C. C o r r e c t i o n s Data 17 C. Other Data Sources 17 D. Summary and C o n c l u s i o n s 18 CHAPTER 3. A THEORETICAL FRAMEWORK FOR THE REVIEW OF THE FINE A. An Overview o f A n a l y s e s o f The S t a t e 21 B. The C o n t r o l F u n c t i o n o f The S t a t e 31 C. S t a t e F i n a n c e s 35 D. S t a t e B u r e a u c r a c y 37 E. Summary and C o n c l u s i o n s . . . 39 CHAPTER 4. THE USE OF THE FINE A. The O r i g i n s o f The F i n e 43 B. The Use o f The F i n e In J u r i s d i c t i o n s O u t s i d e Canada 45 1. England 45 2. The U n i t e d S t a t e s 49 3. West Germany 50 4. Sweden 51 5. Other J u r i s d i c t i o n s 53 V TABLE 1 OF CONTENTS ( c o n t ' d ) C. The Use o f The F i n e i n Canada 53 1. Canadian Law on The F i n e 53 2. B.C. Law on The F i n e 56 3. The Use o f The F i n e i n Canadian P r o v i n c e s 57 4. The Use o f The F i n e i n B.C 60 ( i ) The Amount o f F i n e s 67 D. The F i n e As An A l t e r n a t i v e To P r i s o n . . . . 68 E. Impediments To The Use o f The F i n e 70 F. Summary and C o n c l u s i o n s 74 CHAPTER 5. THE EFFICIENCY OF THE FINE: ENFORCEMENT ISSUES A. Enforcement Methods Und e r t a k e n i n S e l e c t e d J u r i s d i c t i o n s 78 1. England 78 2. S c a n d i n a v i a n C o u n t r i e s 87 3. The N e t h e r l a n d s 88 4. West Germany 89 5. The U n i t e d S t a t e s 90 6. Canada 91 ( i ) B r i t i s h Columbia 92 B. Enforcement I s s u e s 97 1. Imprisonment i n D e f a u l t o f a F i n e 97 2. F i n e O p t i o n s 100 C. Summary and C o n c l u s i o n s 104 CHAPTER 6. THE EFFECTIVENESS OF THE FINE A. R e c i d i v i s m 108 B. A t t i t u d i n a l Measures 113 1. O f f e n d e r A t t i t u d e s 114 2. P u b l i c A t t i t u d e s .118 C. Summary and C o n c l u s i o n s 120 CHAPTER 7. THE ECONOMY AND LEGITIMACY OF SOCIAL CONTROL A. S o c i a l C o n t r o l and L e g i t i m a c y 123 1. S u r v e i l l a n c e 125 2. L e g i t i m a c y 127 v i TABL-E OF CONTENTS ( c o n t ' d ) B. The Economy o f S o c i a l C o n t r o l .....128 1. The Cost o f F i n i n g 129 2. F i n e Revenue 131 3. The B u r e a u c r a c y i n B r i t i s h Columbia 134 C. Summary and C o n c l u s i o n s ..137 CHAPTER 8. SOCIAL JUSTICE AND THE FINE A. S e n t e n c i n g D i s p a r i t y 142 B. The Day-Fine 147 C. Summary and C o n c l u s i o n s 149 CHAPTER 9.. SUMMARY AND CONCLUSIONS A. C o n c l u d i n g Remarks On The F i n e 153 1. The Use o f The F i n e .153 2. The E f f i c i e n c y , E f f e c t i v e n e s s , and Economy o f The F i n e ..154 3. S o c i a l C o n t r o l , S o c i a l J u s t i c e and The Fine....157 B. The T h e o r e t i c a l I m p l i c a t i o n s o f The F i n e 159 C. Recommendations For F u r t h e r R e s e a r c h 166 BIBLIOGRAPHY. 169 v i i - L I S T OF TABLES TABLE 1 Sentences f o r I n d i c t a b l e O f f e n c e s i n M a g i s t r a t e s ' C o u r t s f o r Males 21 and Over, 1966-1978 {%) 46 TABLE 2 Sentences f o r Males 21 and Over D e a l t With In a H i g h e r C o u r t , 1966-1978 (%) 47 TABLE 3 Sentences G i v e n To A d u l t s In A l l E n g l i s h C o u r t s For S e l e c t e d O f f e n c e C a t e g o r i e s , 1977 (%) 48 TABLE 4 Sentences f o r I n d i c t a b l e O f f e n c e s i n Canada, 1963-1973 (%) ' 58 TABLE 5 D i s t r i b u t i o n o f S e n t e n c e s f o r I n d i c t a b l e O f f e n c e s by S e l e c t e d P r o v i n c e s , 1963 (%) 59 TABLE 6 D i s t r i b u t i o n o f Sentences f o r I n d i c t a b l e O f f e n c e s by S e l e c t e d P r o v i n c e s , 1973 (%) 60 TABLE 7 S e n t e n c i n g Trends i n B.C.: I n d i c t a b l e O f f e n c e C o n v i c t i o n s , 1963-1973 {%) 61 TABLE 8 S e n t e n c i n g Trends i n B.C.: Summary O f f e n c e C o n v i c t i o n s , 1963-1973 (%) 62 TABLE 9 B.C. P r o v i n c i a l C r i m i n a l C o u r t D i s p o s i t i o n s , 1976-1984 (%) 63 TABLE 10 B.C. P r o v i n c i a l C o u r t D i s p o s i t i o n s by C r i m i n a l Code O f f e n c e , 1979 ( % ) . . . 64 TABLE 11 B.C. P r o v i n c i a l C o u r t D i s p o s i t i o n s by C r i m i n a l Code O f f e n c e , 1983 {%) 64 TABLE 12 B.C. P r o v i n c i a l C o u r t D i s p o s i t i o n s by O f f e n c e C a t e g o r y , 1979 {%) 65 TABLE 13 B.C. P r o v i n c i a l C o u r t D i s p o s i t i o n s by O f f e n c e C a t e g o r y , 1983 (%) 65 TABLE 14 Sentenced and D e f a u l t A d m i s s i o n s i n B.C. I n s t i t u t i o n s , 1979-1984 93 vi i i ACKNOWLEDGEMENTS I would l i k e to thank my Committee members, Adrian Marriage and Neil Guppy, and es p e c i a l l y my advisor, Bob Ratner, for the support, d i r e c t i o n , and advice they provided during the various stages which led to the completion of this thesis. F u l l r e s p o n s i b i l i t y for the contents of this thesis and any errors of omission or fa c t , nevertheless, are mine alone. A number of fellow government bureaucrats, who shall remain unnamed, also must be thanked for t h e i r contributions. I would l i k e , however, to s p e c i f i c a l l y acknowledge Dennis Kent, Court Services Branch, and Greg Muirhead, Corrections Branch, for granting permission to use and reproduce the data contained in this thesis. i x The majestic equality of the French law, which forbids both ri c h and poor from sleeping under the bridges of the Seine. (Anatole France) - 1 -CHAPTER I INTRODUCTION A. GENERAL OVERVIEW The sanctions or sentences which attempt to achieve, through coercive means, general compliance with basic standards of conduct are an essential c h a r a c t e r i s t i c of criminal law (Law Reform Commission, 1947b). Intervention by the state and the sentencing of convicted offenders i s considered j u s t i f i e d on the basis of both the protectionof the common good and our sense of ju s t i c e that demands a wrong be righted. Intervention i s limited, however, in order that: 1) innocents are not harmed, 2) sanctions are not degrading, cruel or inhumane, 3) sanctions are proportional to the offence, and 4) si m i l a r offences are treated more or less equally (Law Reform Commission, 1947b). A sanction can be considered an end in i t s e l f , i . e . , r e t r i b u t i o n for an offence which expresses the outrage of the rest of the community, and in th i s sense i t i s n o n - u t i l i t a r i a n . Or, a sanction can have u t i l i t a r i a n aims beyond the actual imposition of the sentence, i . e . , to protect society through incapacitation or to treat the offender. Although the overriding aim of sentencing from the criminal j u s t i c e perspective i s the control of crime, there are diverse ideas on how best to achieve t h i s . For many years there has been a general consensus among j u s t i c e system p r a c t i t i o n e r s and the public at large that the "best" sentencing al t e r n a t i v e was that which emphasized r e h a b i l i t a t i o n and the treatment - 2 -of the offender. Due to this longstanding commitment to r e h a b i l i t a t i o n , sentencing was not considered an issue by the criminal j u s t i c e system (Blumstein, 1982). Since the mid-1970's, however, this commitment began to weaken and sentencing began to receive renewed attention (Blumstein, 1982; L i a i s o n , 1983). A number of reasons e x i s t for the rejection of r e h a b i l i t a t i o n as a primary aim of sentencing. Evaluations of r e h a b i l i t a t i v e programs continually found such programs were not l i v i n g up to t h e i r aim of successfully "correcting" the behavior and attitudes of offenders (Martinson, 1974). Even i f r e h a b i l i t a t i v e programs had proved e f f e c t i v e , other concerns were being voiced that these programs violated basic canons of j u s t i c e and the freedom of the i n d i v i d u a l . The extent of control exercised over offenders through the use of indeterminate sentencing and the disparity evident in r e h a b i l i t a t i v e sentences which were based on the notion of i n d i v i d u a l i z e d treatment were considered s u f f i c i e n t reasons to warrant re-appraisal of r e h a b i l i t a t i o n as a sentencing theory (Blumstein, 1982). Beyond these concerns about the theoretical v a l i d i t y of r e h a b i l i t a t i o n and the effectiveness of such sentencing practices in meeting the ends of the criminal j u s t i c e system, equally important economic issues served to threaten the continuance of r e h a b i l i t a t i v e sentencing. North American economies experienced tremendous expansion in the 1940's and 1950's (Paternoster and Bynum, 1982). This fostered the expectation that under conditions of economic growth and f u l l employment, a conventional l i f e was possible given the necessary - 3 -t r a i n i n g and s k i l l s . Advances in science and positivism complemented th i s b e l i e f with the assumption that the s o c i a l , economic, and personal environment played determinant roles in an offender's criminal behavior. I t followed that by a l t e r i n g the offender's l i f e s i t u a t i o n , more s o c i a l l y acceptable attitudes and behavior would r e s u l t (Alexander and Staub, 1956; Hobhouse, 1951). The e f f e c t of this on the correctional system was to make the r e h a b i l i t a t i v e model economically, s c i e n t i f i c a l l y , and morally defensible: The luxury of abundance produced by an expanding economy allowed a c u l t i v a t i o n of r e h a b i l i t a t i v e philanthropy (Paternoster and Bynum, 1982:8). There was l i t t l e vocal resentment from the prospering and employed populace when the r e h a b i l i t a t i v e goal was implemented to a s s i s t offenders. During the subsequent recession, however, the legitimacy of continuing to educate and f i n d employment for offenders diminished in importance when even the law-abiding, unemployed and poor found such opportunities out of th e i r reach. The economic and p o l i t i c a l cost of administering r e h a b i l i t a t i v e sentences became increasingly p r o h i b i t i v e . Evidence of prison congestion and the associated costs of r e h a b i l i t a t i o n , coupled with i t s empirical inadequacy and growing resentment among the law-abiding toward the treatment of offenders, made the re-assessment of incarceration for the purpose of r e h a b i l i t a t i o n and the search for sentencing alternatives imperative (Blumstein, 1982). Disillusionment with r e h a b i l i t a t i o n and incarceration served to stimulate both the re-examination of e x i s t i n g , and largely discarded - 4 -theories about the aims of sentencing, and the development of innovative approaches to sentencing. Most notable has been the resurgence of in t e r e s t i n deterrence, and re t r i b u t i o n or "just deserts", and the development of a sentencing theory based on the p r i n c i p l e of reparation (Blumstein, 1982; Thorvaldson, 1978). Integral to the r e h a b i l i t a t i v e ethic i s the be l i e f that the sentence i s humane and ju s t . I t i s not meant to punish offenders, since they are not to be held responsible for the crimes they commit. Rather, a r e h a b i l i t a t i v e sentence aims to encourage offenders for t h e i r own good, to exhibit law-abiding behavior in the future (Alexander and Staub, 1956; Hobhouse, 1951; Martinson, 1974). Like r e h a b i l i t a t i o n , reparation i s not meant to punish the offender. Its aim i s to enable the offender to reconcile with the community by redressing the wrong committed; to make up, to the degree possible, the harm done and in this way i t holds the offender morally responsible (Thorvaldson, 1978). Retribution, on the other hand, stresses equal punishment for equal crime regardless of the offender's circumstances. I t i s believed that criminals are rational and can appreciate the consequences of their crime. The intent, therefore, i s to r e s t r i c t infringements on the freedom of the individual and punish according to the extent of harm done by the offence; to give the offender his or her "just deserts" (Bottoms, 1981; Morgan, 1979). Deterrence also assumes the offender i s rational and aims to control crime through the certainty and severity of the sentence which acts as a threat against the offender: i f another l i k e crime i s committed, a sim i l a r or more severe penalty w i l l be imposed. The intent i s to induce the individual offender to r e f r a i n - 5 -from criminal behavior and deter the general public from such behavior by encouraging the calculated weighing of potential costs and benefits (Blumstein, 1982; Grasmick and Green, 1980). Incapacitation, as a separate sentencing theory, simply aims to control or avert crime through the i s o l a t i o n or elimination of offenders from the general population (Spitzer, 1977). The increased i n t e r e s t in r e v i s i t i n g and developing these sentencing theories extended pragmatically to the s p e c i f i c types of sentences seen as t y p i f y i n g the theoretical aim of the sentence. The type of sentence seen to embody deterrence i s incarceration or the threat of i t . Incarceration, of course, also can be seen as simply an incapacitative sentence or as a means to achieve r e h a b i l i t a t i o n . Reparation i s expressed through the use of community and victim service orders. Accordingly, a great deal of l i t e r a t u r e exists on incarceration and an increasing amount i s being generated on victim and community service. R e s t i t u t i o n , narrowly defined as the restoration of the actual goods or the equivalent to t h e i r r i g h t f u l owner, also has received i t s share of renewed attention often within the context of victim assistance programming and reparative sentencing (Morgan, 1979). One sentence, of p a r t i c u l a r i n t e r e s t here, which has received s u r p r i s i n g l y l i t t l e attention considering i t s long history as one of the most commonly used dispositions of the courts, and the recent support in many European countries to further expand i t s use, i s the fine (Albrecht and Johnson, 1980; Bottoms, 1981; Davidson, 1965; Morgan and Bowles, 1981). The t r a d i t i o n a l aim of the fine can be said to be deterrence. To be deterrent, however, the fine must be s u f f i c i e n t in amount to make the offender aware the crime was not, or i s not, worth the price paid. The - 6 -intent i s to threaten by the fear of future consequences. To the extent that the amount of the fine r e f l e c t s the gravity of the offence and seeks to cancel the f i n a n c i a l advantage of a crime or to impose a f i n a n c i a l loss, i t i s r e t r i b u t i v e in aim. However, the fine cannot be considered wholly r e t r i b u t i v e since monetary assessments are not often seen as acceptable sanctions to redress the harm done by viole n t crime. The o r i g i n s of the fin e l i e in r e s t i t u t i o n , as w i l l be shown more e x p l i c i t l y in Chapter 4. The fine i s not incapacitative, except, depending on the size of the f i n e , in the abstract sense of l i m i t i n g a person's economic l i b e r t y to carry on with i l l e g a l behavior. A fine w i l l not r e h a b i l i t a t e or reform i f this i s defined as the modification of a n t i - s o c i a l attitudes since the f i x i n g and administering of the fine i s not f i t t e d to the personality of the offender. However, to the extent that reform i s considered to include expiation or atonement, the fine may have some r e h a b i l i t a t i v e e f f e c t s (Samuels, 1970). Where the offender needs support or control, the fine as an economic sanction is considered a poor substitute for a r e h a b i l i t a t i v e one. Nevertheless, ... in some cases, a fine can serve a limited reformative function by impressing upon a defendant who has acted negligently that he w i l l be held accountable for his actions. If an individual has never before been held personally responsible for what he did, a fin e may be a l l that i s needed to deter him from r i s k i n g criminal l i a b i l i t y again (Columbia Law Review, 1971:1284). It i s clear that the fine or indeed any sentence of the court can communicate a mixed message to the offender and the public in general. Despite the fact that the fine can represent any one of a number of sentencing theories of recent i n t e r e s t to researchers and j u s t i c e system planners al i k e and despite i t s avowed numerical importance, limited - 7 -attention has been devoted to the fine in comparison with other penalties. There are, however, an abundance of claims in the sentencing l i t e r a t u r e about the fine's superiority: In discussions of sentencing a l t e r n a t i v e s , J u s t i c e Department o f f i c i a l s [ i n Canada] pointed out that a fine i s the most humane and commonly used disp o s i t i o n (Liaison, 1983:30). Fines are ce r t a i n l y less awesome than imprisonment; they have not been shown to be any less e f f e c t i v e a deterrent than any other d i s p o s i t i o n ; they are c l e a r l y the least expensive measure possible (Law Reform Commission, 1974a:29). Similar types of conclusions about the fine can be found scattered throughout the l i t e r a t u r e and a l l , for the most part, appear to be unsubstantiated. I t i s considered a given that the fine i s humane, the cheapest, and by no means the lea s t e f f e c t i v e sanction at the same time that i t i s acknowledged as the least studied (Morgan and Bowles, 1981; Samuels, 1970). Competing with the claims about the superiority of the fine are c r i t i c i s m s which, though not as pervasive as the accolades, are equally lacking in substantiation. The fine's capacity for unfairness when imposed on the poor, default sentences which burden the prison system and cause social d i s l o c a t i o n , and the fear that the fine may be regarded "... as l i t t l e more than occupational r i s k s , v i r t u a l l y licences to carry on with ... i l l e g a l practices, a minor tax upon p r o f i t s ..." prompt others to discard the fine as a reasonable sentencing alternative i n general, or at least inappropriate for some offenders and offence types (Radzinowicz and King, 1979:315). C r i t i c s of the fine also claim a fixed fine i s inconsistent with notions of equal j u s t i c e , and that i t has insurmountable c o l l e c t i o n problems. Moreover, there i s concern that - 8 -the f i n e , as punishment, can be transferred to t h i r d , "innocent" p a r t i e s . It i s speculated further that offenders may commit additional crimes to pay t h e i r f i n e s , or use welfare dollars as the source of the fine's payment, which amounts to the transfer of public funds from one account to another (Carter and Cole, 1979; Davidson, 1965; University of Pennsylvania, 1953). Contradictory perspectives support both the fine's continued u t i l i t y and d i s u t i l i t y . The practice of f i n i n g i s out-running i t s theory and description. No comprehensive review or analysis of the fine has been located and this study is prompted, in large part, to remedy th i s lack of information. The fine i s by no means a spectacular or contemporary sentence, but i t is a serious oversight to ignore i t s importance or i t s alleged s u p e r i o r i t i e s and flaws. As was noted in 1970: In a m a t e r i a l i s t i c age dominated by property and motoring crime, economic sanctions seem l i k e l y to continue to grow i n size and importance (Samuels, 1970:272). This i s as true today as when Samuels wrote f i f t e e n years ago. This thesis takes seriously the need to f u l l y describe the fine as a sentence of the court with the expectation that such a description w i l l provide a foundation for further work in this area. I t i s arguably a useful exercise in and of i t s e l f to draw together in a coherent and systematic way the opinions and facts expressed by others on the fin e and to report o f f i c i a l , published and unpublished, s t a t i s t i c s on i t s use. This thesis endeavors to go beyond description of the f i n e , however, to analyse the fine and the sentencing process within i t s broader socio-economic context. The f i n e , as a monetary - 9 -penalty for wrongdoing, can be understood as an everyday, a l b e i t involuntary, transaction imposed and monitored by one of the many i n s t i t u t i o n s of the state, i . e . , the criminal j u s t i c e system. Theoretical analyses of the functions of the state, therefore, w i l l be presented and related to the descriptive findings on the f i n e . 1. The Purpose and Organization of The Thesis While the issue of sentencing has received renewed attention in the l a s t number of years, t h i s i s not s t r i c t l y the case with one type of sentence, namely, the f i n e . The work available on the fine f a i l s to describe f u l l y i t s use nor does the l i t e r a t u r e elaborate on a l l the factors which enable a comprehensive assessment of the f i n e . The piecemeal treatment of the fine or for that matter of most of the available sentencing options f a i l s to provide a sound basis for a complete understanding of the sentencing process. Traditional studies of sentencing focus on one or two of the major measures of a sentence's u t i l i t y , but seldom address or i n t e r r e l a t e a l l the measures. On the basis of content analyses of sentencing l i t e r a t u r e , the following measures have been i d e n t i f i e d as capable of providing an i n t e r p r e t i v e framework for the review and analysis of any sentence of the court: 1. Use: the frequency of use of the sentence for s p e c i f i c types of offences, and over time; and any enabling l e g i s l a t i o n provide a preliminary basis for discussion and comparison of sentences. 2. E f f i c i e n c y : the ease of administering the sentence; i n th i s instance the monitoring and enforcement of fine payment i s considered an important indicator of the continued u t i l i t y of the sentence from the j u s t i c e system's perspective. - 10 -3. Effectiveness: the success of the sanction as measured in terms of recidivism, offender a t t i t u d e s , and public attitudes i s the most common measure of the sentence's u t i l i t y i n criminological l i t e r a t u r e . 4. Economy and Social Control: the cost to the state of administering the sentence of the court i s related to the degree of social control exercised over the offender population and i s of equal concern, a l b e i t for d i f f e r e n t reasons, to j u s t i c e system administrators and social s c i e n t i s t s a l i k e . 5. Social J u s t i c e : evidence of sentencing d i s p a r i t y and unequal treatment of offenders can high l i g h t the f a i l u r e of the j u s t i c e system to measure up to i t s claim of j u s t i c e for a l l . No study of any sentence of the court has been located which addresses f u l l y the above f i v e factors. While e x i s t i n g examinations of sentences can be c r i t i c i z e d for not examining a l l the factors which a f f e c t the sentence in question, various attempts are made to speak to, i f not elaborate on, these issues. Such analyses c e r t a i n l y do not attempt to move beyond these issues to study the role of a sentence within i t s broader societal context. This thesis does, however, endeavor to situate the fine within i t s general context as one of many social control techniques administered by one of many state i n s t i t u t i o n s . I t i s postulated that the study of the fine can enable an understanding of the structures and, often contradictory, functions of the state, at the same time that analyses of the state can a s s i s t in understanding the dynamics of the f i n e . The problem to which this thesis i s addressed i s related to the need to gain a better understanding of both the conceptual and descr i p t i v e framework of the f i n e . To this end, the study undertakes: - 11 -1. to a r t i c u l a t e the theoretical analyses of the state, s p e c i f i c a l l y focussing on the state's accumulation, legitimation, and control functions, i t s finances, and the role of the bureaucracy, 2. to describe f u l l y the use, e f f i c i e n c y , effectiveness, and economy of the fine and how the f i n e demonstrates notions of fairness and j u s t i c e , 3. to examine how the often contradictory functions of the state can enhance an understanding of the practice of f i n i n g , and 4. to examine how empirical evidence on the use of the fin e can v e r i f y or refute assumptions about the state. To achieve t h i s purpose, the thesis i s organized as follows: Chapter 2 describes the methods employed in obtaining the s p e c i f i c information and l i t e r a t u r e reported on the fine and the state. Chapter 3 provides an overview of selected theoretical analyses of the state focussing on the role of state finances, the bureaucracy, and i t s various functions. Chapter 4 provides a f u l l description of the origins and use of the fine as documented in the l i t e r a t u r e and in published and unpublished reports of o f f i c i a l s t a t i s t i c s in Canada with p a r t i c u l a r emphasis on the Province of B r i t i s h Columbia (B.C.). Chapter 5 describes the e f f i c i e n c y of the fine with emphasis on the enforcement of outstanding f i n e s . Chapter 6 reviews studies on the effectiveness of the fine in terms of measures of recidivism and a t t i t u d e s . Chapter 7 examines the economy of the fine and of social control techniques in general. This chapter addresses as well the degree and nature of social control exercised over offenders and the l i m i t a t i o n s placed on the control of offenders as i t relates to issues of economy and legitimacy. Chapter 8 reports on evidence of the fine's capacity for social j u s t i c e as measured by disparate sentencing and the treatment of offenders. - 12 -Chapter 9 concludes with a summary of the most s a l i e n t findings of the thesis and the major issues which ensure or impede the continued use of the f i n e . This chapter w i l l address the implications of the fine for an understanding of the operations and functions of the state and conversely, the implications of analyses of the state and i t s s p e c i f i c functions for an understanding of the f i n e . - 13 -CHAPTER 2 METHODS Many sources of information have been drawn upon to define and subsequently complete this thesis. The following describes the methods employed to obtain information and the l i m i t a t i o n s of the s t a t i s t i c a l data. This chapter concludes by o u t l i n i n g the types of information and data which are incorporated into each of the subsequent chapters. A. REVIEW OF THE LITERATURE Extensive l i t e r a t u r e searches were conducted to obtain published information on the fine s p e c i f i c a l l y and the sentencing process in general. Quarterly publications of Criminal J u s t i c e Abstracts from 1979 through to 1984 were perused manually to i d e n t i f y texts, a r t i c l e s , and government publications in Canada, the United States, England, and other Western European countries for purposes of review. The Current C i t a t i o n  Index also provided leads to written materials. A computer search of l i t e r a t u r e between 1970 and 1983 conducted by the National Criminal J u s t i c e Reference Service using key words such as " f i n e " , "sentencing", and "social control" led to over three hundred references of varying degrees of relevance. These l i t e r a t u r e searches confirmed both the s c a r c i t y of publications which focus on the fine and the recent accumulation of l i t e r a t u r e related to other aspects of sentencing within the criminal j u s t i c e system. It was during the review of t h i s l i t e r a t u r e that the structure of the presentation of the findings into discrete chapters on the use, e f f i c i e n c y , effectiveness, economy and social c o n t r o l , and social j u s t i c e of the fine was developed. - 14 -Liter a t u r e on the nature and role of the modern state was i d e n t i f i e d by informed sources who were aware that one of my objectives was to i n t e r p r e t the descriptive information on the fine within a broader socio-economic framework of analysis. No attempt has been made to provide an exhaustive review of the l i t e r a t u r e on the state. Rather, i t was considered appropriate to report on a selected number of publications which raised theoretical issues expected to be relevant to the description of the f i n e . B- COMPILATION OF OFFICIAL STATISTICS 1. S t a t i s t i c s Canada The bureau of S t a t i s t i c s Canada has been a major repository of j u s t i c e system s t a t i s t i c s , on a nation-wide basis, since 1876. From th i s time, through to 1973, sentencing data generated by criminal j u s t i c e systems across Canada were submitted as summary s t a t i s t i c s to t h i s agency. Subsequently, each province opted out of t h i s reporting procedure with the exception of the provinces of Quebec and B.C. who have submitted s t a t i s t i c s for 1979 and 1980 only. S t a t i s t i c s Canada nevertheless remains the only source which has data, a l b e i t dated, to enable comparisons of sentencing patterns and trends across provinces. A comparison of provincial sentencing trends throughout Canada provides an overview of the extent to which sentencing i s consistent across j u r i s d i c t i o n s . D i sparity, i f i t e x i s t s , may r e s u l t from d i f f e r i n g perceptions of the seriousness of offences and thus the consequences of apprehension and conviction. In other words, the provinces of Canada may d i f f e r in their attitudes toward crime and the just i c e system p o l i c i e s in each j u r i s d i c t i o n may r e f l e c t these - 15 -dif f e r e n c e s . The only means available to assess these sentencing patterns i s to use S t a t i s t i c s Canada data. Although the most recent data were recorded over ten years ago, i t i s considered worthwhile to report these data. Disposition data were c o l l e c t e d for an eleven year period, between 1963 and 1973, to enable comparisons of sentencing trends across j u r i s d i c t i o n s and over time as presented in Chapter 4. I t was not considered necessary to c o l l e c t and report on data prior to 1963, p a r t i c u l a r l y since i t would be d i f f i c u l t to assess the r e l i a b i l i t y and v a l i d i t y of the reporting procedures over any extended time period. 2. B.C. Court Data From 1976 onward, the Court Services Branch of the B.C. Ministry of Attorney General has compiled yearly management information s t a t i s t i c s d e t a i l i n g the dispositions of offences before the courts, using the following Criminal Code of Canada and provincial statute offence categories: Assault Breaking and Entering Breach of Probation Drugs Federal Statutes Fraud F a i l u r e to Appear Homicide Motor Vehicle Offence - Criminal Code Municipal Bylaw Offensive Weapons Other Offence Other Criminal Code Offence Possession of Stolen Property Provincial Statute Provincial Motor Vehicle Robbery Sexual Offence Social - Other Offence Theft Offence. - 16 -It i s possible for an offender to receive more than one sentence upon conviction. The court information system w i l l record, however, only what they consider to be the most serious d i s p o s i t i o n for each completed case according to the following l i s t of sentences in descending order of seriousness: Pentitentiary J a i l Fine Probation Driving Licence Suspension Discharge Other. Any offender receiving a penitentiary or j a i l sentence may have a fine imposed, or a probation order, or a combination of sentences, but the management information system does not report routinely such hybrid sentences. This results in an under-reporting of the actual usage of sentences imposed by the courts of B.C. An attempt was made to obtain data to determine the extent of mixed sentencing i n B.C. Unfortunately, i t was possible to assess this only fo r one offence grouping, i . e . , provincial motor vehicle offences which resulted in j a i l sentences during 1982. A special computer run completed previously was made available to the author but because of the costs involved, no further data could be obtained. These data are reported in Chapter 4. The major source of data on B.C. provincial court d i s p o s i t i o n s were av a i l a b l e from 1976 through to 1984. These data enable comparisons in Chapter 4 of the frequency of use of the fine compared with other sentences and over time. I t should be recognized, however, that these data are not completely r e l i a b l e indicators of the actual number of sentences imposed in any given year. - 17 -3. B.C. Corrections Data Corrections data were co l l e c t e d on the number of sentenced and default admissions to provincial i n s t i t u t i o n s during the l a s t f i v e f i s c a l years, 1979/80 to 1983/84. These data are used to examine the extent to which imprisonment of fine defaulters i s a v a l i d concern i n B. C., thus bringing into question the e f f i c i e n c y , economy, and social j u s t i c e of fines as discussed in Chapters 5, 7, and 8 re s p e c t i v e l y . Corrections data on the p r o f i l e of fine defaulters who were imprisoned during f i s c a l year 1983/84 are also reported upon in Chapter 5. C. OTHER DATA SOURCES 1. Informal interviews with twelve j u s t i c e system administrators ( i . e . , program managers, researchers, and analysts) and administrative judges were undertaken to gather opinions and facts on the fi n e , i t s problems, i t s strengths, and any future policy d i r e c t i o n on i t s use in B.C. Information gathered during these interviews i s used throughout the thesis to embellish the discussions on the fine and the role of bureaucrats in the criminal j u s t i c e system. 2. Data on the total revenue generated in 1982/83 by the imposition of fines and related penalties were c o l l e c t e d , using the B.C. "Estimates Book" produced by the Ministry of Finance. These revenue figures, the most recent a v a i l a b l e , are used in discussions on the economy of the f i n e . 3. Eight years of personal experience within the j u s t i c e system of B.C., as a researcher and analyst, has provided the author with a broad understanding of the organization and administration of j u s t i c e in B.C. - 18 -As a member of a committee instructed to assess the costs and options of implementing a provincial statute wherein f ines would be the major sanction used, also afforded the author the opportunity to witness f i r s t hand the c o n f l i c t which arises over bureaucratic concerns about avai lable resources and government concerns about the generation of state revenue. This experience w i l l be described and explored within the chapter on the economy of the f i ne . D. SUMMARY AND CONCLUSIONS Analyt ica l and descr ipt ive, published and unpublished l i t e r a tu re on the use, e f f i c i ency , economy, effect iveness, social ju s t i ce and social control of the f ine are reviewed, as i s selected l i t e ra tu re on theoret ica l analyses of the state. Primary and secondary sources of information are reported. Ex ist ing o f f i c i a l s t a t i s t i c s from S t a t i s t i c s Canada and from B r i t i s h Columbia are introduced to document the use of the f ine across Canada and in the Province of B.C. The att itudes and opinions of pract i t ioners within the jus t i ce system of B.C. are provided to i l l u s t r a t e aspects of the practice of f in ing and enforcement. This thesis also draws on the personal experience of the author who has been a researcher and pol icy analyst with the Ministry of Attorney General of B.C. for the past eight years. L i terature co l lected on the state i s reviewed in Chapter 3. Relevant aspects of th i s information are then re-introduced into the concluding sections of the subsequent chapters which focus in deta i l on the f i ne , as well as in the f i na l chapter of the thes is . - 19 -Chapters 4 through to 8, contain appropriate references to the l i t e r a t u r e on the fine and related issues according to the framework i d e n t i f i e d as systematically addressing a l l aspects of a sentence of the court. Chapter 4 contains, as well, data on the use of the fine in Canada as reported by S t a t i s t i c s Canada and by the courts of B r i t i s h Columbia. Chapter 5 includes B.C. data on fine defaulters provided by the Corrections Branch of the Ministry of Attorney General. Considering the sprawling character of the criminal j u s t i c e system in Canada, the gaps in data and the patchiness of what i s available are not surprising. In B r i t i s h Columbia, each component of the j u s t i c e system aggregates case data d i f f e r e n t l y . A case in the courts can equal one or more offenders and one or more offences while Corrections counts persons i n some instances and "bed" days in others ( i . e . , the number of days an i n s t i t u t i o n a l bed i s used rather than the number of offenders u t i l i z i n g the bed). The courts also compile data d i f f e r e n t l y by using a calendar year while Corrections annual data are reported by a f i s c a l year, running from A p r i l 1 to March 31 each year. Beyond these disparate techniques for the reporting of j u s t i c e system information, the lack of socio-demographic data at the court level p a r t i c u l a r l y creates further problems of what can and cannot be said about the d i s p o s i t i o n of cases before the courts. Probably the most s t r i k i n g omission i s the lack of data on the d o l l a r value of the fines and the actual number of fines imposed. Although i t i s possible to obtain a yearly estimate of the total net revenue generated by fines i t i s not possible to assess the value of - 20 -fines for offence groupings or offender types. The court information system in B.C. i s being refined, however, to enable a l l fines imposed to be entered into an accounts receivable computer system. This system, which i s expected to be operational by January 1986, w i l l provide, for the f i r s t time in B.C., systematic data on the f i n e . For the present, this thesis contains an exhaustive presentation of the data from B.C. sources that are now a v a i l a b l e . - 21 -CHAPTER 3 A THEORETICAL FRAMEWORK FOR THE REVIEW OF THE FINE This thesis i s predicated on the assumption that understanding the role of the state and i t s structural mechanisms can provide a foundation for a more complete understanding of the f i n e . Conversely, relevant concepts found within the l i t e r a t u r e on the state can be grounded within a description of the f i n e . In this sense, the " c r i s i s " in sentencing ' i d e n t i f i e d i n Chapter 1 which occurred once the commitment to r e h a b i l i t a t i o n foundered, can be placed within the p o l i t i c a l and f i s c a l " c r i s i s " of the state in general and the criminal j u s t i c e system in p a r t i c u l a r . It i s argued that since the state i s , among other things, in the "business of punishment", sentencing should be considered within the context of the resources of the state and the function of state legitimacy. The following provides an analysis of the structure and role of the state as presented in selected l i t e r a t u r e . This presentation enables general conclusions to be drawn about the socio-economic implications of the f i n e and i t enhances the discussions on the economy, social control, and social j u s t i c e of the f i n e . A. AN OVERVIEW OF ANALYSES OF THE STATE Many competing perspectives e x i s t on the role of the state, but the two most prevalent are: 1. The "integration-consensus" interpretation which sees the state as a set of i n s t i t u t i o n s that maintains s t a b i l i t y in c i v i l society. Law, accordingly, is seen as a body of rules established through consensus (Quinney, 1973). - 22 -2. The " c o n f l i c t - c o e r c i o n " perspective which interprets the state as a tool of the r u l i n g class used to enforce i t s w i l l on the rest of society. Law i s seen, therefore, as a means to protect the material basis of t h i s class (Quinney, 1973). The debate between these two perspectives permeates the l i t e r a t u r e on the sociology of law and the role of the state (Offe, 1972; Turk, 1976J. 1 While the c o n f l i c t theorists accuse the l i b e r a l s of "false consciousness" and the i n a b i l i t y to perceive p o l i t i c a l and social inequality and the structural dimensions of the d i s t r i b u t i o n of power, the c o n f l i c t theorists are themselves challenged to i d e n t i f y a class-conscious ruling class and are said to deny the existence of a p o l i t i c a l system with s e l f - s u f f i c i e n t , s t r u c t u r a l l y independent functions (Offe, 1972:77). Neither analysis has been empirically validated and for the most part both are crudely conceived and provide l i t t l e i n s i g h t into any analysis of f i n i n g . The consensus t r a d i t i o n simply f a i l s to account for the r e a l i t y of c o n f l i c t and inequality. The shortcomings of the c o n f l i c t theorists are more complex. Three of the major Marxist perspectives are c r i t i c i z e d s u c c inctly by Gold, Lo and Wright (1975b): ... the instrumentalist perspective i s simply inadequate as a guide to understanding the state ... i t i s impossible to see how the complex apparatus of the state can be understood adequately in a model which sees policy outcomes primarily in terms of class conscious manipulations by the r u l i n g c l a s s . But the s t r u c t u r a l i s t alternative i s also inadequate. For, while i t does situate the formation of p o l i c y in the context of the functioning of the c a p i t a l i s t 1 There are in f a c t a number of variations of both these themes, e.g., the state i s a p a r a s i t i c i n s t i t u t i o n , an epiphenomena of economic r e l a t i o n s , a legal sovereign, a set of i n s t i t u t i o n s , a referee in the economic sphere (Jessop, 1977). More s p e c i f i c delineations of Marxist t r a d i t i o n s (e.g., Hegelian and s t r u c t u r a l i s t ) in the analysis of the state can also be found (see Gold, Lo and Wright, 1975a, 1975b; Jessop, 1980). - 23 -system as a whole, i t generally does not explain the social mechanisms which actually generate a class policy that i s compatible with the needs of the system. F i n a l l y , the Hegelian-Marxist perspective i s inadequate because i t i s so highly abstract that i t i s d i f f i c u l t to use in the analysis of a p a r t i c u l a r h i s t o r i c a l situation ... [and] ... the c e n t r a l i t y i t places on ideology and consciousness often tends to undermine the m a t e r i a l i s t basis of Marxist theory (pp. 36-37). Offe (1972), Block (1977), and Balbus (1977) attempt to provide a more coherent theory of the state. Offe (1972) i d e n t i f i e s the se l e c t i v e mechanisms of the state which ensure the appearance of consensus and c l a s s - n e u t r a l i t y and the means by which groups organize and negotiate t h e i r demands for the u t i l i z a t i o n of state services. He dispenses with the base/superstructure d i s t i n c t i o n prevalent in Marxist l i t e r a t u r e and portrays the state as mandated to create and sustain conditions necessary to the accumulation process. The state i s f u n c t i o n a l l y related to and dependent upon accumulation. Being dependent on revenues outside i t s immediate control, and excluded for the most part from d i r e c t p a r t i c i p a t i o n in the process of accumulation, the state instead has a s e l f - i n t e r e s t in promoting conditions conducive to accumulation (Offe and Ronge, 1975). The state's a b i l i t y to function on behalf of capital i s predicated on i t s a b i l i t y to equate the needs of capital with national i n t e r e s t and to secure popular support for measures that maintain the conditions for accumulation (Jessop, 1977). This legitimation function does not imply a need for a f u l l y consensual society since marginal groups can remain at various distances from a commitment to the legitimate order without threatening the s t a b i l i t y of that order. Nevertheless, the maintenance of legitimacy i s t i e d closely to the economic s t a b i l i t y of the country. - 24 -Thus the state i s in perpetual need of balancing the i n t e r e s t s of individual capital with popular support (Offe and Ronge, 1975). The state maintains the "commodity form" and the "exchange-relationship of individual economic un i t s " . By providing a maximum of exchange opportunities to both labor and c a p i t a l , the state protects a set of rules and social r e l a t i o n s h i p s which represent the common interests of a l l members of a class society (Offe and Ronge, 1975). These interests are maintained and balanced in a number of ways. For example, the welfare subsidies of the state are a response to "decommodified value" (e.g., the unemployed) which can diminish the basis of future state revenue. Creating conditions under which values can function again as commodities, for instance, by enhancing the marketability of labor power, by opening up new markets for c a p i t a l and goods, or by regulating the market place are the means by which the state responds to the problem of obsolescence of the commodity form. The p o l i t i c a l and administrative means used to s t a b i l i z e the commodity form and exchange process are often contradictory and can lead to domestic unrest, lessened freedoms, and more taxes and burdens on c a p i t a l . In the process of maintaining and balancing economic s t a b i l i t y , foreign r e l a t i o n s , and mass l o y a l t y , the state assigns p r i o r i t y treatment to perceived hazards to the total system depending on the consequences i d e n t i f i e d , should the need or claim on the state be ignored. Block's (1977) analysis of the state p a r a l l e l s closely Offe's and Ronge's (1975). Block, too, rejects the narrow view of instrumentalists as misleading and oversimplified. The r e a l i t y of the state's a b i l i t y to - 25 -implement p o l i c i e s independent of d i r e c t c a p i t a l i s t control and in some cases contrary to the interests of the individual c a p i t a l i s t i s considered to emerge out of the structural relationships among state managers, c a p i t a l i s t s , workers, and other i n t e r e s t groups who a l l lobby and apply pressure on the state to ensure t h e i r i n t e r e s t s . Block (1977) contends that the state w i l l respond to c a p i t a l i s t lobby groups, often regardless of the ideological persuasion of the state i t s e l f , because the state managers' continued power depends on some reasonable level of economic a c t i v i t y . Business confidence and p o l i t i c a l s t a b i l i t y are essential to investment and in turn place a r e s t r a i n t on the scope of a n t i - c a p i t a l i s t state p o l i c y . Haas (1979) and Jessop (1977) both consider Offe's tendency to de-emphasize h i s t o r i c a l analysis a shortcoming of his work. Haas (1979) and Jessop (1980) also feel Offe has an incomplete understanding of the concept of the commodity form which Pashukanis' theory i s thought to embellish. The "capital l o g i c " school of thought embraced by Pashukanis, among others, introduced into the analysis of the state concepts such as the c i r c u l a t i o n of commodities, exchange r e l a t i o n s , and use-value/exchange-value (Jessop, 1980). Pashukanis also introduced a correspondence between the commodity form and the legal form where the l a t t e r i s to mediate and guarantee exchange rel a t i o n s (Jessop, 1980:366). Pashukanis emphasized the need to pursue legal theory as an h i s t o r i c a l enquiry and to examine the form as well as the substance of law. What i s considered his most important contribution to legal thought i s his argument that the legal form i s the p a r a l l e l of the - 26 -commodity form (Warrington, 1981). When commodities are produced, they are exchanged, and law i s concerned, so the argument goes, both with the process of exchanging commodities between legal subjects who act as the guardians of these commodities and with enabling the commodity form of society to function ( C o t t e r r e l l , 1979; Warrington, 1981). This theory i s based on two premises: a) exchange relations are uncoerced and the rela t i o n s between subjects and property are the basis of the legal form; and, b) the commodity form of exchange h i s t o r i c a l l y precedes the legal system. The economic r e l a t i o n of exchange must be present for legal r e l a t i o n s of contract to e x i s t . Pashukanis also believed that the formal equality that the commodity form postulates i s only an apparent equality and the "blindness" of the legal form to substantive differences i s equivalent to the concealing by the commodity form of the substantive differences in use-value. Pashukanis 1 theoretical analysis has been c r i t i c i z e d for a number of reasons: 1) the h i s t o r i c a l p r i o r i t y of the commodity exchange relationship i s empirically suspect; 2) the dominance of exchange f a i l s to allow for the importance of the production process; 3) the commodity form i s too general a concept; 4) the notion of coercion i s absent; 5) the d i s t i n c t i o n between use-value ( i . e . , substantive in e q u a l i t i e s ) and exchange-value ( i . e . , formal equality) i s not clear; and, 6) law has i t s own s p e c i f i c i t i e s not a l l of which are purely dependent on economics (Warrington, 1981). Balbus (1977) addresses some of the oversimplifications present in Pashukanis' theory i n his discussion of the lo g i c of the commodity form. He distinguishes more c l e a r l y between use-value ( i . e . , unequal - 27 -labors which produce commodities) and exchange-value ( i . e . , whereby q u a l i t a t i v e l y d i s t i n c t and incommensurable commodities enter into a formal relationship of equivalence). The commodity of money f a c i l i t a t e s the abstract equality evident in the exchange form. Balbus argues, as Pashukanis does, that the l o g i c of the legal form and the l o g i c of the commodity form are one and the same. As with commodities, people as individuals are q u a l i t a t i v e l y d i f f e r e n t , but when they enter an exchange relationship they have a formal relationship of equivalence made possible by the law which obscures t h e i r true inequality. The legal form makes an abstraction of real men and women p a r a l l e l to the abstraction that the commodity form makes of real products. The legal form replaces the m u l t i p l i c i t y of needs and interests with abstractions of the w i l l and the rights of the j u r i d i c a l subject. The formality of legal equality, however, does not prevent i t from having substantive consequences which are anything but equal and are in fact repressive (Balbus, 1977:577; author's own emphasisT Moreover, the systematic application of a scale of equality to systematically unequal individuals tends to reinforce these i n e q u a l i t i e s . Legal equality, therefore, i s said to mask class differences and social i n e q u a l i t i e s . Both Pashukanis and Balbus argue that the legal form i s a "bourgeois" form of false consciousness. For that reason, i t cannot be the basis for a s o c i a l i s t society. The legal form must be transcended as an abstraction of real human needs; hence, the "withering away of law" i s postulated by these authors. This b e l i e f i s premised on the further b e l i e f that the legal form depends on the commodity form and the rela t i o n s of the market. Thus, with the - 28 -disappearance of the market under advanced socialism, so too, the law ( C o t t e r r e l l , 1979; Warrington, 1981). It i s c e r t a i n l y not the purpose here to debate the potential accuracy of these predictions. Instead, i t i s useful to attempt to delineate the type of law these authors assume w i l l disappear. The law of exchange of equivalents, of free bargaining and formal equality are c h a r a c t e r i s t i c s most typi c a l of c i v i l law. Indeed, the heart of law for Pashukanis i s the c i v i l law of private obligations and to t h i s extent his work on the commodity form theory has no real place in criminal law (Warrington, 1981). Pashukanis oversimplifies the h i s t o r i c a l d i v e r s i t y of legal forms and obscures the d i f f e r e n t kinds of legal persons, statuses and capacities which e x i s t in the legal system, not to mention i t s f l e x i b i l i t i e s ( C o t t e r r e l l , 1979). Balbus (1977), on the other hand, does attempt to extend his analysis into the f i e l d of criminal law. Balbus argues that placing value on the claim of equality before the law as a genuine human value w i l l not serve to de-legitimate the legal order as a whole. A law that results in the rich receiving more lenient treatment than the poor convicted of comparable crimes may de-legitimate the judge or the court, but not the legal order i t s e l f since i t s central c r i t e r i o n i s equal treatment ir r e s p e c t i v e of c l a s s . Therefore, those who claim the rich and poor al i k e should receive the same penalty for the same crime affirm the legitimacy of the legal order. The central tenet of the legal order i s c a l l e d into question only i f the objection i s grounded on the p r i n c i p l e that: - 29 -... the r i c h - given both t h e i r greater a b i l i t y to pay the penalties resulting from conviction and also to avoid the necessity of committing crimes in the f i r s t place, should receive more severe penalties than the poor who have committed comparable crimes (Balbus, 1977:578; author's own emphasis). Balbus concludes that the legitimacy of recognizing social class o r i g i n s would be asserted i f such a p r i n c i p l e was supported. He f e e l s , however, that t h i s i s unlikely to occur in a society which makes a f e t i s h of law, asserting i t owes i t s existence to law rather than the inverse. This fetishism precludes the a b i l i t y to evaluate the legal form since i t i s not possible to evaluate something conceived as independent of society's values and existence. This legal fetishism, the argument goes, i s p a r a l l e l to commodity fetishism. Both the legal and commodity forms are seen to function autonomously from the very people who created them. Although Balbus goes further than Pashukanis in analysing the law, neither, i t i s argued, go far enough. Criminal law i s indeed predicated on the notion of equivalent relations before the law. A l l sanctions can also be seen as an exchange of d i f f e r e n t forms of equivalent value. The Code of Hammurabi (1727 B.C.) was based on the p r i n c i p l e of r e c i p r o c i t y which e n t a i l s reward according to merit or punishment according to the harm done. The exchange could be i d e n t i c a l - "an eye for an eye" - or, have the appearance of equivalence - a monetary penalty for a property offence. In this way, the sentencing process in the criminal j u s t i c e system p a r a l l e l s the legal and commodity forms. I t i s argued that use-value or q u a l i t a t i v e l y d i f f e r e n t products, commodities, and a c t i v i t i e s are obscured by the process of exchange-value which treats unequal things as equivalent. A similar situation occurs in sentencing - 30 -and i n the offender's f u l f i l l m e n t of sentence. A c r i t i c a l difference, however, i s that the state w i l l impose t h i s exchange on both the offender and the victim, and in many cases the actual victim does not even enter the equation. With the exception of r e s t i t u t i o n where the victim may receive money, goods, or the equivalent in service, the exchange i s between the state representing society as victim and the offender. At the same time that the parties to this process d i f f e r , so too does the determination of equivalent values. It i s the state represented by the j u d i c i a r y who determine what the offender w i l l exchange for the harm done independent of any "free" bargaining or negotiating on the part of the offender. The legal form w i l l , in p r i n c i p l e , treat equally, alleged offenders. The substantive differences which e x i s t , nevertheless, may be addressed in a more or less equitable manner either d i r e c t l y in the determination of g u i l t ( i . e . , i s the alleged offender capable of awareness of the criminal nature of the offence) and, depending on the aims of sentencing, to varying degrees when imposing a sanction. It i s not inconceivable that the rich may be treated more harshly than the poor for a comparable crime for the very reasons postulated by Balbus (1977). Balbus appears to be focusing on monetary crimes where the motive i s avarice or greed and the penalty would be the f i n e . In t h i s type of case i t may not be atypical for the rich to face a f a r larger fine than the poor. Both Pashukanis and Balbus oversimplify the d i v e r s i t y and f l e x i b i l i t y of the legal form. Neither author addresses the f a c t that criminal law rests on the legitimate use of coercion by the state. If - 31 -the legal subject i s found to deviate from his or her legal obligations of r e c i p r o c i t y , the state can intervene on behalf of society at large to denounce the transgression and impose a sanction to punish or redress the wrong. The f u l f i l l m e n t of the state-imposed sanction i s not undertaken f r e e l y by the legal subject. This coercive function of the state i s discussed in greater detail below. B. THE CONTROL FUNCTION OF THE STATE Lack of analysis of surveillance and control as a primary function of the state i s a major l i m i t a t i o n in various interpretations of the state (Giddens, 1981). Analyses which do focus on control systems often are inadequate, however, due to t h e i r tendency to be c i r c u l a r and instrumentalist in reasoning, similar to a major c r i t i c i s m of analyses of the state. Whatever control system i s adopted, by d e f i n i t i o n , f i t s the needs of the ruling class; or some kind of r a t i o n a l i t y i s attributed to the system independent of people making t h e i r own history. Results of these types of analysis too often are known in advance (Bohm, 1982). O'Connor (1973) extends his analysis of the state to include i t s coercive function. He sees the state as having a monopoly over the legitimate use of force as exercised by the m i l i t a r y and components of the j u s t i c e system, but O'Connor has l i t t l e more to say than t h i s . Giddens (1981), on the other hand, provides a more general overview of the social control exercised by the state. F i r s t , Giddens (1981) notes that the sanctions available to control agents operate through inducement as well as coercion. As such, they constrain and enable behavior and must be studied in conjunction with the state's role of l e g i t i m a t i o n . The degree of control the state, through i t s agents, - 32 -exercises i s dependent on a number of factors, not the least of which i s the subject's compliance with the agent of control. Those incarcerated, for example, may appear u t t e r l y powerless, but through hunger st r i k e s or even suicide, Giddens argues, the captive can exercise power. Thus even in the one area over which the state has absolute control, i . e . , the legitimate use of coercion, there i s what Giddens refers to as a " d i a l e c t i c of control" as there i s in the work-place and the family where the means to coerce or invoke moral obligations i s less apparent. Spitzer (1977) explains the dynamics of the state's role in exercising two forms of control: 1) segregative state controls such as i n s t i t u t i o n s ; and, 2) integrative controls which seek to prevent troublesome behavior before i t occurs or to "normalize" deviant populations through a process of "decarceration". The costs of segregative controls are t y p i c a l l y high and place pressure on the state to f i n d a l t e r n a t i v e solutions to the control of deviant populations. One obvious solution i s the d i r e c t release of problem populations back into the community. This approach, Spitzer argues, would focus too much attention on the shortcomings of the state which has invested highly in criminal j u s t i c e and mental health care with no obvious gains in the quality of l i f e . Rather than highlight i t s inadequacies and by so doing diminish i t s legitimacy, intermediate solutions which can s t i l l reduce f i s c a l burdens are sought. Community based supervision through the use of group homes and out-patient care are examples of such solutions. In the case of criminal j u s t i c e , this e s s e n t i a l l y i s an exchange in the reduction of the severity of punishment for a reduction in costs with, i t i s hoped, l i t t l e or no s a c r i f i c e of state legitimacy. Social control - 33 -becomes more spe c i a l i z e d , and in some cases more penetrating and i n t r u s i v e , but not more coercive in a s t r i c t l y physical sense (Marx, 1981:238). P i a t t and Takagi (1977) argue to the contrary that technocratic solutions to the penal c r i s i s which i s prompted in large part by the f i s c a l c r i s i s lead to more brutal forms of punishment, longer and more severe sentences. They c r i t i c i z e sharply the i n t e l l e c t u a l "new r e a l i s t s " of law and order for the profound and negative impact they are having on the j u s t i c e system and the public's perceptions of the "horrors of street crime". Nevertheless, there i s no evidence offered that methods of punishment have become harsher. Paternoster and Bynum (1982) provide a thoughtful analysis of the dual functions of social control and legitimation. They argue, f i r s t , that the economic c r i s i s of the 1970's and 1980's has produced problems for the state's continued legitimacy while ... the economic prosperity of the post-war period ... allowed the state to rule with considerable popular consent (Paternoster and Bynum, 1982:8). The current economic decline threatens t h i s consensus. When the ranks of the unemployed and welfare class expand, a prolonged c r i s i s can produce large scale social and p o l i t i c a l i n s t a b i l i t y . Two consequences of the economic c r i s i s are the state's need for the maintenance of i t s legitimacy and i t s reliance on more coercive measures of social c o n t r o l . Coercion, however, works best when i t i s legitimated by the majority. - 34 -The emerging " j u s t i c e " model of crime control which emphasizes law and order and "get tough" p o l i c i e s p r o l i f e r a t e s because i t offers an acceptable rationale to the populace. The j u s t i c e model rests on notions of legal r i g h t s , fixed sentences, and reduced d i s c r e t i o n , and not simply on harsher punishment. Moreover, there s t i l l e xists room for i n d i v i d u a l i z e d sentencing and various other sentencing aims. What this " j u s t deserts" type of model above a l l i s able to do i s to re-affirm popular consent. Rule-breakers are seen as v i o l a t i n g norms of r e c i p r o c i t y and the state has an obligation to punish accordingly. The model appeals to both the public's sense of moral outrage against perpetrators of crime and to i t s sense of f a i r play, e.g., the formal rules and procedures and equal treatment afforded offenders (Paternoster and Bynum, 1982). Crime i s seen as a manifestation of a breakdown in law and order and thus a threat to social s t a b i l i t y which can be controlled by a swift and sure response on the part of the state. For the most part, authors such as Spitzer (1977) and Paternoster and Bynum (1982) l i m i t t h e i r analysis of deviance production and control to the poor stealing from the r i c h and to street crime. Neither addresses the fa c t that social control agents can reduce control by the non-enforcement of rules or that they can contribute to or even generate rule-breaking behavior by escalation ( i . e . , enforcing laws more frequently, "getting tough", and creating new laws)(Marx, 1981). As larger sectors of society are defined as problem populations, the implications of over-control become very apparent. The cost of control increases and threatens to diminish state reserves. In consequence, the - 35 -legitimacy of the state in intervening into the day-to-day l i v e s of so many i s questioned. This would seem to be p a r t i c u l a r l y the case for "crimes" which cross social class boundaries. These are offences such as drinking and driving and other motor vehicle v i o l a t i o n s of a less serious nature engaged in widely by both the r i c h and the poor. When the state intervenes in this area i t must ensure i t s societal acceptance. Narrow u t i l i t a r i a n considerations of punishment and crime control in the public policy arena must be balanced against considerations of humaneness and j u s t i c e and the state's concern for continued popular support (Zedlewski, 1984). Responses to crime and wrongdoing must also be balanced against the state's f i s c a l a b i l i t y to finance the response, p o t e n t i a l l y at the expense of other state services. This aspect of the state's finances i s discussed in greater d e t a i l in the following section. C. STATE FINANCES O'Connor's (1973) theory of state finance enhances the foregoing analyses of the state. One of the keys to understanding the internal dynamics of the state i s that state revenue i s dependent upon the process of accumulation of capital which i t does not d i r e c t l y control; moreover, i t s function of legitimation t i e s into i t s a b i l i t y to create conditions for accumulation. O'Connor also observed the tendency of state expenditures to grow faster than revenues and he comments on how t h i s leads to a " f i s c a l c r i s i s " of the state. - 36 -State expenditures have at least two general functions: 1) social expenses are incurred to maintain social harmony, to impose sanctions and confer benefits (e.g., welfare, p o l i c i n g costs); and, 2) s o c i a l capital i s either invested to maintain or increase the productivity of labor or to lower the reproduction costs of labor power (e.g., subsidized housing, transportation, education, and health costs) (O'Connor, 1973). Social investment and consumption are i n d i r e c t l y productive for private capital while social expenses are unproductive. O'Connor goes on to i d e n t i f y the three major ways the state finances i t s expenditures: taxes, charging for state services, and borrowing from private f i n a n c i a l i n s t i t u t i o n s . The f i s c a l c r i s i s of the state occurs when there is increasing pressures on welfare spending and a problem in financing t h i s spending. It i s this s ituation which leads to the contradictory aspect of the two basic functions of the state. The scale of state expenditures on social services f e t t e r s the process of accumulation and growth (Gough, 1979:14). In the end, O'Connor fe e l s the state must s a c r i f i c e at least, in part, accumulation and economic growth, or p o l i t i c a l and social r i g h t s . Friedland, Piven and A l f o r d (1978) also consider the c l a s s i c symptoms of a f i s c a l c r i s i s to be the widening disparity between revenues and expenditures in the face of increasing demands for state services. They argue, however, that O'Connor's theory of the state and i t s f i s c a l c r i s i s has flaws. They do not believe there i s an inherent tendency in the operations of the state that lead i t toward f i s c a l c r i s i s . Rather, they would argue there are variable manifestations of f i s c a l stress evident throughout history, from nation to nation, and - 37 -state bureaucracy to state bureaucracy. The structural arrangements of the state can mediate the dual requirements of economic growth and p o l i t i c a l integration with varying degrees of success. While O'Connor argues that every state agency i s involved in expending social expenses and s o c i a l c a p i t a l , Friedland, Piven, and A l f o r d would consider this an overstatement and oversimplification of state expenditures. The separation of state agencies and functions allow some agencies to be less involved, i f at a l l , in maintaining the c a p i t a l i s t mode of production and more involved in providing the social services which legitimate the state. The extent to which state functions are c e n t r a l i z e d or not determines the means by which they can avoid or diffuse popular d i s a f f e c t i o n . F i s c a l claims on the state also can d i v e r t the potential c o n f l i c t between the demands of capital and the demands of the working population. Thus, the i n s t i t u t i o n a l separation of the state and the economy, and the fragmentation of the accumulation and legitimation functions can lead to intense f i s c a l stress rather than overt p o l i t i c a l c o n f l i c t or a f i s c a l c r i s i s (Friedland, Piven and A l f o r d , 1978) The structure and dynamics of state bureaucracy are discussed further in the following section. D. STATE BUREAUCRACY As Panitch (1980), Miliband (1983), Block (1977), and others note, the state is not simply the central government in power, but extends to p r o v i n c i a l , regional, and municipal levels of government, to the bureaucracy at each level of government, public corporations, central banks, the m i l i t a r y , the courts, the j u d i c i a r y , and the p o l i c e . Therefore, election to governmental power i s not equivalent to the - 38 -a c q u i s i t i o n of state power (Panitch, 1980:191). Rather, there is a range of powers exercised by the various i n s t i t u t i o n s of the state and the bureaucracy, composed of non-elected o f f i c i a l s , has wide-ranging powers and autonomy from the elected o f f i c i a l s . For example, cabinet ministers i n the federal government of Canada have the power to e s t a b l i s h far-ranging economic and social welfare p o l i c i e s , but these powers can be circumscribed or thwarted by the provincial governments. Even within a state bureaucracy, the executive, top c i v i l servants, and m i l i t a r y advisors have varying degrees of control and power and w i l l not necessarily agree on policy or procedure (Miliband, 1983). Within any one agent of a provincial bureaucracy - for example, social welfare -the powers exercised by a f i n a n c i a l aid worker over the individual applicant for welfare can be r e l a t i v e l y autonomous from the control of managers. S i m i l a r l y , the values held by the c i v i l servants, senior o f f i c i a l s , and so on i n any one bureaucracy need not be consensual. Marenin (1981) describes this point succinctly in his analysis of the role of p o l i c e . Marenin (1981) argues that rhetoric about the police as unquestioning servants of the state misses a substantive point, namely that not a l l of the actions of the police and the criminal j u s t i c e system in general are repressive. Some actions of the police demonstrably are e x p l o i t i v e and repressive while other actions are not seen to be against the interests of any one group. Marenin, l i k e others before him, introduces the r e l a t i v e autonomy of the state as a means of understanding, i n t h i s case, the concrete role of the p o l i c e . The role - 39 -of the police i s more complex than that of a mere instrument of the powerful (Marenin, 1981:2). A variety of functions are performed and interests protected. The police can r e s i s t attempts at external control, they have wide discretionary powers, and i t i s in the interests of a l l that they police the community. No group in society has an i n t e r e s t in being victimized by crime or the fear of crime. The p o l i c e , Marenin (1981) therefore argues, are r e l a t i v e l y autonomous and that autonomy can be observed empirically. Marenin's argument applies to a l l components of the j u s t i c e system (e.g., courts, crown counsel, corrections, l e g i s l a t o r s , and policy makers) as well as to a l l agencies of the state. No element of the state can be explained solely in terms of i t s functional r e l a t i o n to the economy. State bureaucrats carry with them ... as they work, a history of learning and s o c i a l i z a t i o n , of values, b e l i e f s , and personal ideologies which w i l l a f f e c t t h e i r individual int e r p r e t a t i o n ... of their work (Marenin, 1981:23).! E. SUMMARY AND CONCLUSIONS In summary, the most compelling analysis of the state would embrace the following: 1. state s p e c i f i c i n t e r e s t s , 2. interests in maintaining the accumulation process, 3. engineering of consent and legitimacy, and 4. the monopoly over the legitimate use of coercion. The state and the legal order cannot be denied any autonomy nor can i t be claimed to have absolute autonomy. I t i s for this reason that the 1 This conclusion i s p a r t i c u l a r l y relevant when describing the role of the j u s t i c e system bureaucracy as i t relates to the continued use or expansion of f i n i n g in B r i t i s h Columbia, see pp. 134-137. - 40 -concept of " r e l a t i v e autonomy" has emerged in the l i t e r a t u r e . Giddens (1981) i s the only author who argues against the use of the term. He f e e l s a l l autonomy i s r e l a t i v e and therefore the l a t t e r term i s redundant since "... any social processes or i n s t i t u t i o n s that were 'absolutely' autonomous from others by d e f i n i t i o n would have no connection with them anyway" (p.217). Most authors agree that the state w i l l implement policy which runs counter to c a p i t a l i s t interests per se since the state must contend with organized labor and other sources of power as well. This supports the prevalent view that the state i s enmeshed in the contradictions of capitalism; i t i s neither a class-neutral agency of social reform, nor a mere functional vehicle of the needs of the c a p i t a l i s t mode of production, nor simply an arena for class struggle. The a c t i v i t i e s undertaken by the state contain elements of repression and responsiveness to human needs - i t i s both malevolent and benevolent -and therein l i e s i t s contradictory nature (Gough, 1979). The analyses of the structural mechanisms of the state which enable i t to perform i t s important functions, but which account also for some of i t s contradictions i s relevant generally to the analysis of a s p e c i f i c form of state control, i . e . , the sentencing of offenders in general and the use of the fine in p a r t i c u l a r . The use and effectiveness of the fine in confronting problem populations w i l l be described and may be understood in the context of the demands on the state for order, f i s c a l r e s t r a i n t , and legitimation. State resources cannot a l l be directed toward the administration of the law, including the sentencing process, and away from the other - 41 -functions of the state including the accumulation of capital through the support of the private sector and the provision of other social services. Decriminalization of behavior or reducing j u s t i c e system expenditures would, however, diminish the legitimacy of the state in the eyes of the law-abiding c i t i z e n s and p a r t i c u l a r l y the victims of crime. A fe e l i n g of d i s a f f e c t i o n with the system would occur i f offenders were treated too l e n i e n t l y because of a lack of resources directed toward t h i s function. Public disapproval of perceived leniency in sentencing can threaten the legitimacy of the criminal j u s t i c e system whereas "toughness in sentencing provides r e l a t i v e strength in the p o l i t i c a l process" (Blumstein, 1982:324). The p o l i t i c a l costs of raising taxes or re-assigning resources to pay for the administration of prison sentences and community-based surveillance of offenders, nevertheless, have to be weighed against "... the p o l i t i c a l benefits of toughness" (Blumstein, 1982:326). Since the state has to punish, maintain i t s legitimacy through consensus, and balance the increasing costs of punishing with other competing demands for i t s resources, i t must assess c a r e f u l l y the sanctions i t employs (Haas, 1979). Because of i t s f i s c a l problems the state must search for means of economizing control operations without jeopardizing c a p i t a l i s t expansion (Spitzer, 1977:648). Sanctions cannot be too expensive nor must they threaten the legitimacy of the state (either by being too lenient or too severe) or the state's capacity to maintain i t s accumulation function. A further practical concern i s that the sanction be acceptable, practicable and e a s i l y - 42 -operationalized by the bureaucracy responsible for i t s administration. The role of c i v i l servants, the j u d i c i a r y , and other state bureaucrats cannot be overlooked as they are the ones who make and implement state p o l i c y often independent of p o l i t i c a l forces. These broad concerns which the state and the j u s t i c e system must address are relevant to the s p e c i f i c concerns related to f i n i n g . This chapter sought to provide a review of the major functions of the state considered relevant to the subsequent descriptions and discussions on: a) the use of the fine as one of many sanctions employed by the state i n s t i t u t i o n of criminal j u s t i c e ; b) the e f f i c i e n c y of the f i n e as i t i s administered by the bureaucracy; c) the effectiveness of the fine as a deterrent sanction and whether i t i s perceived by the public as appropriate and legitimate; d) the costs and benefits to the state of administering the fin e ; and, e) the legitimacy of the fine in the content of concerns about social j u s t i c e . - 43 -CHAPTER 4 THE USE OF THE FINE One purpose of this chapter i s to provide descriptive information c o l l e c t e d during the l i t e r a t u r e review on the use of the fine in j u r i s d i c t i o n s outside of Canada. These sections describe provisions for the f i n e and the frequency of i t s use in England and Western European and Scandinavian countries. The extent of information available on the use of the f i n e , i t s enabling l e g i s l a t i o n , and the amounts of fines imposed varies quite considerably. A description and discussion of the fin e as used in Canadian courts and in p a r t i c u l a r in B r i t i s h Columbia follows. The presentation of sentencing trends in Canada r e l i e s largely on data c o l l e c t e d from S t a t i s t i c s Canada documents and the Court Management Information System of B.C. This chapter also reports on available evidence on the increased substitution of the fine for imprisonment. F i r s t , however, a br i e f description of the o r i g i n of the fine w i l l place i t in h i s t o r i c a l perspective and offer a better understanding of the current debate on compensation and r e s t i t u t i o n versus the f i n e - a subject examined in the f i n a l section of this chapter. A. THE ORIGINS OF THE FINE One of the e a r l i e s t alternatives to the blood feuds as a form of so c i a l control was the notion of compensation or payment of damages to the offended party (Hobhouse, 1954). Payment of compensation by the offender to the victim was the basis of early English criminal law (Wasik, 1978). The size of payments arrived at took into consideration the seriousness of the injury and the social standing of the parties involved (Wasik, 1978). - 44 -Compensation was a means of discouraging violence, keeping the king's peace, and redressing the wrong committed. The Code of Hammurabi (1727 B.C.) with i t s p r i n c i p l e of Lex t a l i o n i s , or "an eye for an "eye", i s the e a r l i e s t surviving example of settlement between individuals (and society) achieved through compensation. Since criminal a c t i v i t i e s a f f e c t society, as well as i n d i v i d u a l s , i t too must be compensated. Eventually society became the only one compensated. (Reynolds and Rock, (1976:137). With the gradual increase in state power, the state began to claim a share, and eventually, a l l the compensation based on the rationale that crime i s p r i n c i p l y an act against society rather than an i n d i v i d u a l . Private settlements were discouraged for behavior considered an offence against society by making i t an offence to conceal a crime and s e t t l e i t independent of state intervention (Law Reform Commission, 1974a). Payment of t h i s penalty to the community as victim also was seen as a popular way to f o r e s t a l l taxes and finance the Crown (Davidson, 1965). When "fined" the offender was immediately imprisoned to compel "the making of the fin e " (Jobson, 1970). As the law of torts became distinguished from criminal law, the use of the fine as a means of compensation disappeared. By the end of the 12th Century damages as a purely c i v i l remedy became the established p r i n c i p l e of compensation (Davidson, 1965). As Vaz and Lodhi (1979) note: V i o l a t i o n of the criminal law i s a criminal act; i t i s prosecuted by the state through i t s agents and involves some form of punishment. V i o l a t i o n of the c i v i l law i s a c i v i l i n j u r y , and i s prosecuted by the injured party or his representative. I t involves a law s u i t and some form of compensation. A person who has committed an act of assault may be ordered by - 45 -the c i v i l court to pay the victim for damages; he may also be required by the criminal court to pay a fine to the state. In the f i r s t instance the fine i s not considered punishment; in the second case i t i s (Vaz and Lodhi, 1979:5). This d i s t i n c t i o n between compensation and the fine i s being questioned now by those who wish to see the re-introduction of the notion of compensation into criminal law. The debate i s in part a re s u l t of increased i n t e r e s t in victim assistance and the disdaining of procedures which require the victim to lay a c i v i l law s u i t to receive compensation. This issue w i l l be discussed in more det a i l in the f i n a l section of this chapter as i t relates to the use of the f i n e . B. THE USE OF THE FINE IN JURISDICTIONS OUTSIDE CANADA 1. England In England, Magistrates are authorized to impose a maximum of six months in j a i l or a fine of up to•£ 1000, or both, as well as other sanctions of a more r e h a b i l i t a t i v e nature (e.g., community service orders, suspended sentences, conditional discharges, and .probation). Probation i s imposed only i f the magistrate believes the expenditure of time and resources i s warranted (Carter and Cole, 1979). If the magistrate f e e l s the offender should be more harshly punished, the offender can be committed to Crown Court for sentencing. Ninety-seven percent of the criminal cases are heard in Magistrates Court while Crown Court hears the most serious cases. The sentencing trend in English Magistrates Courts has been to fi n e the majority of offenders. Between 1966 and 1978, with the exception of two of the e a r l i e r years, fines have been imposed on male offenders, 21 - 46 -years of age and older, for over 60% of the indictable offences heard in Magistrates Courts (see Table 1) and for over 16% of the cases heard in a higher court (see Table 2). When a l l cases heard in Magistrates Courts are combined, 74% of the cases resulted in a fin e i n 1977 (Carter and Cole, 1979). TABLE 1 Sentences for Indictable Offences in Magistrates' Courts for Males 21 and Over, 1966-1978 ( % ) 1 , 2 Year Dis-charge Pro-bation CS0 Fine Suspended Sentence Incar-ceration Total Other 3 (%) 4 1966/67 8.8 8.0 61.4 16.2 5.6 100.0 1968/69 9.7 6.2 - 53.9 15.3 9.6 5.3 100.0 1970/72 9.9 6.1 - 57.7 12.5 8.9 4.9 100.0 1973/74 10.8 6.2 - 63.6 8.4 6.5 4.5 100.0 1975/76 11.2 5.3 1.1 62.7 8.9 7.1 3.7 100.0 1977 11.0 4.7 2.1 62.3 8.9 7.7 3.3 100.0 1978 10.4 4.8 2.5 62.0 9.1 8.1 3.1 100.0 1. This table is a summary of part of Table 1 i n Bottoms, 1981:4. 2. The frequency of fines for females charged with indictable offences does not vary much from the table on males over 21 years of age. There i s however variation on other sentences; f a r more females received discharges or probation rather than incarceration compared with t h e i r male counterparts. 3. Other includes sent to Crown Court for sentence. 4. Bottoms does not provide the total number of sentences imposed which would enable the c a l c u l a t i o n of percentages into actual values. This can be considered a serious oversight but need not detract from the purpose of t h i s section of the thesis which i s to provide an overview of the general use of the fine in English courts of law. - 47 -TABLE 2 Sentences for Males 21 and Over Dealt with in a Higher Court, 1966-1978 (%)1,2 Dis- Pro- Suspended Incar- Total Year charge bation CSO Fine Sentence ceration Other (%) 3 1966/67 4.3 13.0 — 19.8 61.4 1.5 100.0 1968/69 3.5 8.6 - 11.6 20.6 54.2 1.5 100.0 1970/72 3.5 8.7 - 14.5 19.1 52.7 1.5 100.0 1973/74 3.6 6.1 - 19.9 23.1 45.0 2.3 100.0 1975/76 4.4 5.3 1.7 17.5 23.5 46.2 1.4 100.0 1977 4.3 4.5 3.5 16.5 23.1 46.7 1.4 100.0 1978 4.1 4.1 3.8 16.0 21.9 46.8 1.5 100.0 1. This table i s a summary of part of Table 2 in Bottoms, 1981:5. 2. Females 21 and over again received comparable proportions of fines but more discharges and probation orders rather than incarceration compared with t h e i r male counterparts. 3. See footnote 4, Table 1. Table 3 presents the proportion of d i f f e r e n t types of sentences imposed in English Courts for selected criminal offences. As can be seen, fines are levied even in more serious criminal cases, on average 55% of the time, although robbery and burglary convictions are more frequently dealt with by a prison sentence. The fine i s the most common disp o s i t i o n even when age and gender of the offender i s taken into consideration. For youths aged 10-17 years, 46% of the cases resulted in a fi n e i n 1977, apparently based on the notion parents w i l l pay and punish the c h i l d (Carter and Cole, 1979). Softley (1978) found in a national survey of 3,240 offenders fined during 1974 that 75.2% of offenders with no previous convictions, and a s i m i l a r proportion (73%) with one or two p r i o r convictions were fined. Only when an offender had three or more priors did the percentage of those fined decrease to 47.5%. Softley's survey also revealed that fines were imposed more often on employed offenders (75.2%) than TABLE 3 Sentences Given to Adults In A l l English Courts for Selected Offence Categories, 1977 (V)1 % of Offence Type Fine Prison Dis-charge Suspended Sentence Pro-bation CSO Other Fines 130 or Less Total Number Violence Against 7.72 Person 52.5 13.4 10.5 9.9 3.9 2.1 51.0 22,758 Sex 41.3 23.0 9.5 10.5 12.7 0.6 2.4 39.0 4,653 Burglary 26.9 30.3 5.6 13.9 10.3 6.5 6.5 67.0 22,544 Robbery 2.0 78.0 1.0 7.9 3.8 2.2 6.0 11.0 1,279 Theft 61.4 8.5 11.0 7.8 6.9 2.8 1.6 70.0 130,348 Fraud 46.4 14.5 12.0 14.8 9.0 2.2 1.1 67.0 16,031 Criminal Damage 69.0 5.8 13.2 3.8 4.4 1.7 2.6 80.0 19,273 Other In-dictable 50.0 17.2 11.2 10.8 6.1 2.0 2.7 76.0 8,935 Average 55.0 12.8 10.5 8.7 6.9 3.0 3.1 68.0 1. This table i s a summarization of Home Of f i c e Crime S t a t i s t i c s from Carter and Cole, 1979, pp. 156-158. 2. Rows may not equal 100% due to rounding. - 49 -unemployed offenders (51.5%), while the l a t t e r group received s i g n i f i c a n t l y more discharges, probation and custodial sentences. As shown in Table 3 as well, the amount of the fine most often i s ^30 or less ( i . e . , on average 68% of the time). Softley (1978) found si mi l i a r amounts of fines in his examination of 1974 data where 61% of the fines imposed were £20 or less and only 5% exceeded £50. The main factors considered in the amount of the fine were the value of the property stolen or damaged and the income of the offender. Although these amounts are not great, i t should be recalled that incomes are lower in England and prices are higher. A fine o f£30, equivalent to approximately 60 U.S. d o l l a r s , w i l l have a greater impact on the offender i n England than i t may in the United States or Canada. The English Criminal J u s t i c e Act, 1967 enabled attachment of earnings for the c o l l e c t i o n of fines and c u r t a i l e d j a i l i n g forthwith on f i n e s . Now "no time to pay" i s only allowed i f the magistrate: a) f e e l s i t i s unlikely the offender w i l l remain in the country, b) believes the offender has money but i s refusing to pay or, c) imprisons the offender for another offence. Alternative terms of imprisonment upon default can only be fixed at conviction for cases where immediate committal with no time to pay i s enabled. Otherwise the offender must be brought before the court for a means inquiry before f i x i n g the a l t e r n a t i v e . 2. The United States Only one study was located on the use of the fine in the United States. G i l l e s p i e (1980) examined case f i l e s on 4,900 defendants sentenced in Superior Court in Washington, D.C. during 1974. Over half of the cases were assault, burglary, larcency, (theft) or weapons - 50 -related ( G i l l e s p i e , 1980). Of the total sentences, 36% were incarceration, 58% were probation orders, suspended sentences, and other d i s p o s i t i o n s , and only 6% were fi n e s . Dangerous drugs and embezzlement convictions led more often to a fine ( i . e . , 26% and 14% respectively) but for the most part fines were seldom used ( G i l l e s p i e , 1980:25). G i l l e s p i e ' s findings (1980) on the limited use of the fine in the United States i s corroborated by Carter and Cole (1979) and Van Den Haag (1975) who reported that with the exception of t r a f f i c v i o l a t i o n s , fines are used sparingly. Newton also noted: In contrast with the widespread use of fines in many European countries for serious as well as minor offenses, in the United States fines are generally used only for minor offenses...(Newton, 1981:144). Probation i s the more common disposition used in more than 50% of the cases (in contrast to, for example, England which used probation about 7% of the time in 1977). There are a number of speculations as to why the U.S. uses fines so seldom: 1. Community service orders and r e s t i t u t i o n are receiving more attention with the l a t t e r simply a d i f f e r e n t form of a monetary penalty ( G i l l e s p i e , 1980). 2. The U.S. i s reluctant to expand the use of fines because of the 1971 Supreme Court ruling that imprisonment of an indigent because of i n a b i l i t y to pay a fine i s unconstitutional. I t should be noted however that England has a similar ruling which has not precluded the use of the fine there (Carter and Cole, 1979:161). 3. Fines are regarded as unjust, i n e f f e c t i v e , and " t a i n t j u s t i c e with materialism"" (Van Den Haag, 1975). 3. West Germany As a r e s u l t of a major 1969 reform of the German criminal code, fines were to be substituted for offences which previously would have - 51 -resulted in prison sentences of six months or less ( G i l l e s p i e , 1980). In 1968 fines were imposed i n 63% of offences while by 1976 t h i s proportion rose to 83%. Many of these offences were minor and t r a f f i c offences but whereas p r i o r to the reform one could be imprisoned, a f t e r 1969 only in exceptional cases could any offender be j a i l e d for less than six months (Albrecht and Johnson, 1980). Even more serious crimes against the person resulted in fines 66% of the time and 76% of t h e f t and embezzlement convictions resulted in fines ( G i l l e s p i e , 1980). However, only 18% of breaking and entering cases and 5% of robbery cases led to f i n e s , the majority receiving j a i l sentences instead (this response to robbery i s similar to English p r a c t i c e ) . Since the 1969 reform to the German criminal code, the only other s i g n i f i c a n t event was the introduction of the day-fine i n 1975 (Albrecht and Johnson, 1980). The day-fine system w i l l be discussed in the following section on Sweden where the prototype for the day-fine emerged. 4. Sweden In the Swedish Penal Code, 1965 there are three types of fines provided for: the day f i n e , which was introduced i n 1931, the standardized f i n e , and the monetary f i n e . Day fines are the principal sanction for minor drug, t r a f f i c , and property offences and the i r use i s said to be continuing to rise sharply (Newton, 1981; Thornstedt, 1975). Monetary or f i x e d fines of up to 500 kroner (125 U.S. dollars) are used for petty offences such as public drunkenness while standard fines are assessed primarily for tax evasion. - 52 -The application of the day fine and the methods for a r r i v i n g at the amount vary among j u r i s d i c t i o n s who use i t but the underlying p r i n c i p l e i s the same: The fin e i s determined according to a certain number of "days", depending on the severity of the offense; each "day" i s equivalent to a fix e d sum of money assessed in accordance with the offender's f i n a n c i a l position (Newton, 1981:136). In Sweden, the amount of days vary from 1 to 120 and the value from 2 to 500 Swedish kroner or approximately .50 to 110 U.S. Dollars (Thornstedt, 1975). The value i s calculated roughly by assessing l/1000th of the offender's gross income and reducing or increasing this according to rules and guidelines. The highest sum for a single offence i s 60,000 kroner or 15,000 U.S. d o l l a r s and for a dual offence i t can be as high as 180 days times 500 kroner or 22,500 U.S. d o l l a r s . For those with limited incomes (e.g., students and old age pensioners) a fixed f i n e of 3 kroner or 75 cents i s often l e v i e d . Information about an offender's income i s obtained by the police before the t r i a l and confirmed in court. Relying on the accused's confirmation of assets and l i a b i l i t i e s i s considered reasonable because t h i s type of information i s public property and can readily be checked i n the annual r e g i s t e r of income of wage earners or by the tax au t h o r i t i e s (Law Reform Commission, 1974a). As in Germany, the Swedish prosecutor may order a summary fine when the only penalty for the offence i s a fine of up to 50 "day" fines for a single offence and 60 f o r a multiple offence. If the accused agrees with the prosecutor's decision the fine i s equivalent to a court-ordered f i n e ( G i l l e s p i e , 1980; Thornstedt, 1975). - 53 -Approximately 250,000 persons are fined per year in Sweden (Newton, 1981). If the fi n e i s not paid, more time may be given the offender, his or her earnings or property may be attached, or the case i s referred back to the prosecutor who can write-off sums up to an equivalent of 25 U.S. d o l l a r s or convert the fine into a j a i l sentence. The l a t t e r occurs only i f the offender i s deemed manifestly neglectful and has the means to pay. This process may induce payment; otherwise the outstanding sum to be paid i s converted into a maximum of 90 days i n j a i l (one day in j a i l for every "day" fine unpaid). Once admitted to j a i l the offender cannot secure release by paying the f i n e . 5. Other J u r i s d i c t i o n s Fines are said to be the most common type of punishment in Finland, Denmark and the Netherlands (which a l l have day fine schemes) and, New Zealand, A u s t r a l i a and Japan (Newton, 1981). Day fines are also prevalent in Au s t r i a , B o l i v i a , B r a z i l , Costa Rica, Cuba, and Peru (Newton, 1981). The majority of non-indictable offences and indictable offences proceeded with summarily can receive the fine in Finland and Denmark. In other countries such as I t a l y , day release and probation type orders are more prevalent now while previously imprisonment was the major sanction for the control of offenders. Probation i s also popular i n New Zealand, A u s t r a l i a , and Japan. C. THE USE OF THE FINE IN CANADA 1. Canadian Law on the Fine Canadian judges may order fines for summary conviction offences and ind i c t a b l e offences punishable by less than f i v e years imprisonment. - 54 -The fine cannot be levied by the j u d i c i a r y in Canada for indictable offences punishable by more than f i v e years imprisonment except as an additional sentence (Criminal Code, Section 646(1)).l This affects approximately two-thirds of a l l Criminal Code offences (Law Reform Commission, 1974a). Judges may circumvent this provision by sentencing to one day in prison plus the fine and i t appears possible to sentence an offender to a probation term plus a fine for offences punishable by more than f i v e years imprisonment. Where a fine i s imposed, a term of imprisonment may be specified in default of payment of the fine but no term shall exceed: a) two years, i f the term of imprisonment for the offence would be less than f i v e years, or b) f i v e years, i f the term of imprisonment that may be imposed for the offence i s f i v e or more years (Martin's Criminal Code, 1983, Section 646(3)(a)(b)). Other sections of the Criminal Code specify procedural rules such that fines may be ordered paid at once or by installments. Provision for time to pay has been available since the 1960s (Jobson, 1970). Therefore only under special circumstances can a judge demand payment forthwith. Judges can ask the defendant i f time i s needed to pay or the accused can ask for time i f the fine i s to be paid forthwith. There is special provision that before j a i l i n g youths less than 22 years of age Indictable offences are considered the more serious Criminal Code offences which include murder, robbery, theft, arson, forgery, and narcotic and motor vehicle offences (e.g. impaired driving) for which the accused can be t r i e d upon a formal allegation presented to the court. After a preliminary hearing the accused can e l e c t to be t r i e d by a magistrate in the provincial court or by judge or judge and jury in a higher court. Summary conviction offences, on the other hand, include less serious Criminal Code offences such as gaming, betting, offensive weapons, other federal statute offences, provincial statute offences, and municipal by-law and prohibited parking offences. These offences involve an informal allegation and the accused can be t r i e d at a f i r s t hearing or at a future date i n provincial court. - 55 -for default the court must obtain and consider a report on the youth's means (Criminal Code Section 646(10)). Corporations may be fined any amount in li e u of imprisonment for i n d i c t a b l e offences and on summary conviction not exceeding $1,000 which i s double the amount set in the case of i n d i v i d u a l s . The Criminal Code does not specify the maximum amount of fines for i n d i c t a b l e offences with the exception of a $500 l i m i t on the amount of fines for summary conviction and a $2,000 l i m i t on drinking and driving offences. Canada's "no rule" approach to the question of the amount of a fin e leaves the j u d i c i a r y with wide discretion to impose very small and very large fines although the l a t t e r are rare and limited usually to the p r o f i t made by the offence. Manuals are available in some j u r i s d i c t i o n s to provide guidance for appropriate amounts and provincial statutes may specify amounts. In practice this allows fines to vary i n and between courts (Jobson, 1970). 2 Fines and penalties are paid to the treasurer of the province i n which the fine was imposed except when a fine i s imposed in respect of a v i o l a t i o n of a revenue law or other s i m i l a r federal j u r i s d i c t i o n offences or a municipal bylaw such as parking prohibitions. The B i l l C-19 when proclaimed w i l l reform the Criminal Code and s p e c i f i c a l l y the f i n e as follows: a) present r e s t r i c t i o n s on the use of the fine w i l l be removed, b) the maximum fine for summary conviction offences w i l l increase from $500 to $2,000, c) the maximum for indictable offences w i l l remain at the discretion of the court, d) where the offender has not acknowledged a b i l i t y to pay, a mandatory means enquiry w i l l determine the amount and terms of payment, e) procedures to obtain information on the offender's means are l e f t to the court's d i s c r e t i o n , f) f i n e s can be discharged by p a r t i c i p a t i o n in a fine option program approved by the Province, and g) imprisonment for default w i l l be l i m i t e d to those cases where default i s without "reasonable excuse". - 56 -Criminal Code does allow that where a p r o v i n c i a l , municipal, or local authority bears the expense of administering the law under which a f i n e i s imposed the lieutenant governor in council may d i r e c t that the proceeds shall be paid to that authority (Section 651(3)). However, fi n e revenue generated in most provinces as a r e s u l t of criminal convictions i s credited to the provincial government's general revenue rather than to the provincial Ministry that actually administers the sentence. 2. B.C. Law on the Fine Provincial l e g i s l a t i o n allows exclusive powers to the provinces to make laws in r e l a t i o n to matters such as the administration of j u s t i c e including the c o n s t i t u t i o n , maintenance, and organization of p r o v i n c i a l , c i v i l and criminal courts. Federal authority, on the other hand, extends to criminal law including procedures in criminal matters and dispositions upon conviction. Provinces can l e g i s l a t e the use of f i n e s , imprisonment, or other penalties for the enforcement of any provincial statute or law made in r e l a t i o n to any matter of exclusive provincial j u r i s d i c t i o n . In the Offence Act of B.C., section 4 s p e c i f i e s that unless otherwise provided i n an enactment a person convicted of an offence i s l i a b l e to a fine of not more than $2,000 or to imprisonment for not more than 6 months or to both. No l e g i s l a t i o n exists which s p e c i f i e s the number of days an offender may be imprisoned in default of a f i n e . The Offence Act also s p e c i f i e s that the j u d i c i a r y " s h a l l consider the means and a b i l i t y of the defendant to pay the f i n e , and, where the j u s t i c e is of the opinion that the defendant i s unable to pay the amount of the fin e that the j u s t i c e would otherwise impose, the j u s t i c e , - 57 -notwithstanding this or any other Act, may impose a fine in a lesser amount he considers appropriate" (Section 78). If a person f a i l s to pay a fine in accordance with an order to pay at once or in installments notwithstanding any other provision of the Offence Act, any other Act, regulation, municipal bylaw or order, "no j u s t i c e s h a l l , except under the Small Claims Act, order that a person be imprisoned by reason only that he defaults in paying a f i n e " (Section 7 2 ( D ) . In other words, fines imposed under provincial statute offences in B.C., with the recent exception of some motoring offences, are proceeded with through c i v i l enforcement should the fin e not be paid. 3. The Use of the Fine in Canadian Provinces S t a t i s t i c s Canada data on sentencing patterns in Canada were col l e c t e d from 1963 through to 1973. After 1973 a l l provinces opted out of reporting these data with the exception of B.C. and Quebec both of whom reported data only in 1978 and 1980. Since the purpose here is to assess the comparative frequency of the use of the fin e in the provinces of Canada, data from 1963 to 1973 are reported. Table 4 displays the proportion of indictable offences which received f i n e s , i n s t i t u t i o n a l i z a t i o n , and suspended sentences with and without probation between 1963 and 1973. As can be seen the most frequent disposition was imprisonment followed by the fine and probation. While the use of incarceration decreased over the eleven year period by 11%, the use of the fine increased by a comparable s i z e . - 58 -TABLE 4 Sentences for Indictable Offences in Canada, 1963-1973 (%) Suspended Suspended Sentence Sentence Without Year With Probation Probation Fine I n s t i t u t i o n TOTAL 1963 18.0 11.3 23.5 47.2 42,892 1964 18.6 11.6 24.1 45.7 42,097 1965 19.8 10.3 26.4 43.4 41,832 1966 18.7 12.5 28.0 40.8 45,670 1967 18.8 12.7 28.0 40.8 45,703 1968 13.9 15.4 28.1 42.6 38,609 1969 21.6 10.2 28.5 39.7 . 38,008 1970 24.6 7.8 31.6 36.0 45,880 1971 24.6 7.0 32.7 35.7 47,874 1972 24.4 7.6 33.2 34.8 45,614 1973 23.5 5.8 34.3 36.4 39,757 Average 20.3 10.4 28.4 41.0 42,717 DATA SOURCE: S t a t i s t i c s of Criminal and Other Offences, 1963-1973, S t a t i s t i c s Canada. To enable comparisons between provinces and over time, Tables 5 and 6 present the proportion of sentences imposed in eight provinces where data were available during 1963 and ten years l a t e r during 1973. As can be seen, Saskatchewan and B.C. u t i l i z e d imprisonment more frequently than any other province in 1963 and both have low proportions of fines imposed. Prince Edward Island (P.E.I.), however, used the fine l e a s t frequently. New Brunswick had the highest proportion of fines imposed. In 1973, these differences altered f a i r l y dramatically. B.C. and Nova Scotia increased t h e i r use of the fine by 67% and 56% respectively (from 21% to 35% in B.C. and from 25% to 39% i n Nova Scotia). Saskatchewan, P.E.I., and Newfoundland decreased t h e i r use and the remaining provinces increased the use of the fin e somewhat. There are a number of possible explanations for these d i s p a r i t i e s in sentencing across j u r i s d i c t i o n s and over time. The increased use of - 59 -probation as a r e h a b i l i t a t i v e sentence began to be generally accepted and more frequently used during t h i s time period. Whether t h i s was due to the c o s t - e f f i c i e n c y of community-based surveillance or to the perception of probation as more humane i s unclear. S i m i l a r l y , the increased use of the fine and the decreased use of imprisonment may also have resulted from economic considerations or the j u s t i c e systems' perception that the public's demand for harsh sentencing had diminished. Whatever the reasons, i t i s clear that inconsistent sentencing across Canada, for s i m i l a r offences, results from provincial authority to respond to crime as each province sees f i t . This, in no small way, l i k e l y r e f l e c t s the community's mood of punitiveness or leniency as perceived by the respective j u s t i c e systems across Canada and over time. TABLE 5 D i s t r i b u t i o n of Sentences for Indictable Offences by Selected Provinces, 1963 (%)1 Nova Aver-Sentence B.C. Sask. Man. Ont. New Brun. Scotia PEI Nfld. age Suspended Sentence 9 11 19 7 13 13 34 12 15 Probation 15 11 16 24 16 22 0 20 16 Fine 21 22 25 24 30 25 16 28 24 I n s t i t -u t i o n 2 55 56 41 45 40 40 50 40 45 Number of Con-v i c t i o n s ^ 5857 1869 2187 14778 1283 1516 64 872 28426 1. The provinces of Alberta and Quebec have been excluded since they record t h e i r data d i f f e r e n t l y and did not submit i t to S t a t i s t i c s Canada. 2. This category includes provincial j a i l sentences of less than two years and federal penitentiary sentences of two years or more. 3. This number excludes death sentences meted out in 1963. DATA SOURCE: S t a t i s t i c s of Criminal and Other Offences, 1963, S t a t i s t i c s Canada. - 60 -TABLE 6 Di s t r i b u t i o n of Sentences for Indictable Offences by Selected Provinces, 1973 (%) Nova Aver-Sentence B.C. Sask. Man. Ont. New Brun . Scotia PEI N f l d . age Suspended Sentence 5 14 12 5 9 2 9 15 9 Probation 20 26 22 25 19 24 27 14 22 Fine 35 15 29 37 33 39 9 26 28 I n s t i t -ution 40 45 37 33 39 35 54 45 41 Number of Con-vic t i o n s 8491 2225 2789 23408 993 1891 33 527 40357 DATA SOURCE : S t a t i s t i c s of Criminal and Other Offences, 1973, S t a t i s t i c : Canada. 4. The Use of the Fine in B.C. There are two sources of data to examine the use of : the fine in B.C.: S t a t i s t i c s Canada data from 1963 to 1973 on indictable and summary offence convictions and B.C. Court Services data from 1976 to 1984. The B.C. Court data are not s t r i c t l y comparable with the S t a t i s t i c s Canada data since the former do not group by indictable versus summary offences but by offence type. Table 7 shows the percentage breakdown of the various types of sentences imposed for indictable offence convictions from 1963 to 1973. As can be seen, the use of the fine remained r e l a t i v e l y stable from 1963 to 1969 and then increased f a i r l y steadily to constitute 35% of the sentences imposed for indictable offences in 1973. In s t i t u t i o n a l sentences represented approximately 50% of a l l sentences up u n t i l 1970 when this proportion dropped to around 40%. Probation sentences also - 61 -increased in frequency by 1970. It i s l i k e l y that those types of offenders who, previous to 1970, received j a i l sentences began to receive a fine or a probation order subsequently. In Table 8 the fine i s c l e a r l y the most frequent disposition for summary offence convictions even when provincial statute and municipal bylaw and parking offences are excluded from the data. The percentage of fines ranged from 71 to 80% over this eleven year period with l i t t l e f l u c t u a t i o n . TABLE 7 Sentencing Trends in B.C.: Indictable Offence Convictions, 1963-1973 (%) J a i l J a i l -24 Year Sentence Probation Fine 6 mos.) mos.) Pen. 1 TOTAL 1963 9 15 21 23 23 92 5859 1964 11 18 21 21 22 7 6095 1965 12 18 23 20 20 7 5869 1966 14 17 23 21 19 6 6651 1967 17 16 22 19 19 7 7154 1968 18 8 23 23 21 7 6463 1969 14 13 23 27 17 6 7461 1970 5 25 28 23 15 4 9067 1971 2 25 30 24 14 5 9243 1972 3 23 33 22 14 5 9309 1973 5 21 35 19 15 5 8491 1. These figures are misleading since those serious cases "committed for t r i a l " in provincial court are heard in higher court where a large proportion l i k e l y lead to a pententiary sentence. 2. Rows may not equal 100% due to rounding. DATA SOURCE: S t a t i s t i c s of Criminal and Other Offences, 1963-1973, S t a t i s t i c s Canada. - 62 -TABLE 8 Sentencing Trends in B.C.: Summary Offence Convictions, 1963-1973 (%)1 Suspended Year Sentence Probation Fine J a i l Other TOTAL' 1963 7 3 76 14 0.12 14024 1964 9 3 74 14 0.2 14907 1965 9 4 73 14 0.3 15535 1966 10 5 71 14 0.4 17934 1967 8 3 73 15 1.0 18147 1968 9 3 72 14 2.0 18650 1969 6 3 72 15 4.0 21398 1970 6 5 77 11 1.0 26152 1971 2 5 78 11 4.0 29448 1972 3 4 77 11 5.0 26408 1973 no data 7 80 11 2.0 33743 (N) 1. This excludes Provincial Statute, Municipal Bylaw and Prohibited Parking Offences. 2. Rows may not equal 100% due to rounding. DATA SOURCE: S t a t i s t i c s of Criminal and Other Offences, 1963-1973, S t a t i s t i c s Canada. Table 9 displays the proportion of sentences imposed i n Provincial Criminal Courts from 1976-1984. In l i g h t of the trend toward the increased use of the fine in other j u r i s d i c t i o n s , i t i s surprising to note that the proportion of fines has steadily decreased in B.C. by almost 17% from 1976 to 1984. J a i l sentences have increased quite s u b s t a n t i a l l y , p a r t i c u l a r l y in the l a s t three years. Although the fine i s s t i l l the most common disposition the decreased use may be a r e s u l t of increased provincial "get tough", law and order p o l i c i e s prevalent in B.C. Tables 10 and 11 allow comparison of the proportion of sentences imposed by selected Criminal Code offences in 1979 and f i v e years l a t e r , i n 1983. With the exception of theft cases which were fined 5.6% more frequently in 1983 than 1979 a l l the offence categories received less - 63 -fines in 1983 than 1979. Nevertheless the average proportion of fines imposed varied only minimally with 46.1% of a l l Criminal Code convictions fined in 1979 and 45.5% i n 1983. This consistent response to Criminal Code vi o l a t i o n s f a i l s to explain the general decrease in the use of fines in provincial courts. TABLE 9 B.C. Provincial Criminal Court Dispositions, 1976-1984 (%) Year Discharge Prob. Fine J a i l Pen. 3 0ther4 Total(N) 1976 1 5.4 8.5 68.8 12.0 0.2 5.25 73,389 1977 4.4 8.6 68.3 11.0 0.1 7.7 81,564 1978 2 4.5 11.2 65.7 12.0 0.1 6.6 39,298 1979 4.9 9.4 64.3 12.3 0.1 9.1 81,034 1780 3.7 10.3 63.8 11.6 0.1 10.5 89,818 1981 3.6 11.0 61.0 11.6 0.1 12.8 99,662 1982 3.6 11.1 56.3 16.1 0.1 12.9 99,367 1983 2.8 11.8 53.6 18.0 0.1 13.5 97,336 1984 2.8 12.1 52.3 18.8 0.1 13.9 91,175 1. Not a l l provincial courts were reporting to the central system i n 1976 (estimated 96% coverage). By 1977 the reporting system was routinized. 2. Data were missing i n 1978. 3. The penitentiary count i s lower than what i t i s actually since many cases (2,000-3,000 per year) of a very serious nature ele c t to be t r i e d in a higher court and outcome data are not avai l a b l e . 4. This category includes suspension of drivers' licenses and convictions of t r a f f i c v i o l a t i o n s "standing as i s " . 5. Rows may not equal 100% due to rounding. DATA SOURCE: Court Management Information System, B.C. - 64 -TABLE 10 B.C. Provincial Court Dispositions By Criminal Code Offence, 1979 (%) Offence Type Discharge Prob. Fine J a i l Pen. Other Total(N) Assault 17.4 22.6 42.0 17.3 0.0 0.7 1,873 B & E 2.1 33.7 10.3 53.1 0.5 0.2 1,849 Fraud 9.7 30.8 24.5 35.0 0.1 0.0 2,371 Homicide 0.0 10.0 20.0 60.0 10.0 0.0 10 Motor Veh. 0.4 1.5 71.8 25.4 0.01 9.0 10,214 Poss-SP 10.9 25.9 24.4 38.7 0.2 0.0 1,094 Robbery 0.5 9.7 9.7 72.8 7.2 0.0 195 Sex Off. 16.2 28.8 26.6 27.0 0.7 0.7 278 Theft 20.9 27.7 30.5 20.9 0.01 0.01 6,764 Off. Weapon 11.3 28.0 34.4 26.1 0.2 0.0 582 Other C.C. 11.7 21.0 48.3 11.9 0.0 7.1 4,582 TOTAL 9.4 17.8 46.1 25.1 0.1 1.5 29,812 DATA SOURCE: : Court Management Information System, B.C. TABLE 11 B.C. Provincial Court Dispositions By Criminal Code Offence, 1983 [%) Offence Type Discharge Prob. Fine J a i l Pen. Other Total(N) Assault 10.8 30.1 34.8 22.8 0.5 1.0 2,320 B & E .5 33.8 6.4 58.7 0.6 0.0 2,314 Fraud 4.5 32.0 22.2 41.0 0.3 0.0 2,535 Homicide 0.0 16.7 50.0 16.7 16.7 0.0 6 Motor Veh. 0.1 0.4 70.5 29.0 0.0 0.01 17,469 Poss-SP 7.4 24.5 23.8 43.9 0.5 0.0 1,518 Robbery 0.0 12.6 4.1 81.5 1.9 0.0 271 Sex Off. 8.3 34.7 22.4 32.1 0.4 2.2 277 Theft 11.4 30.2 36.1 22.2 0.03 0.02 10,197 Off. Weapon 7.8 31.1 30.4 30.4 0.1 0.1 740 Other C.C. 5.1 18.3 33.1 36.9 0.1 6.5 8,610 TOTAL 4.7 16.8 45.5 31.7 0.1 1.3 46,257 DATA SOURCE: Court Management Information System, B.C. - 65 -Tables 12 and 13 display the d i s t r i b u t i o n of Provincial Court dispositions i n 1979 and 1983 respectively by major offence groupings: Pr o v i n c i a l Statute and Municipal Bylaw offences which include disputed t r a f f i c offences, Federal Statute offences, drug offences, and Criminal  Code offences. Here we can see that while a l l categories were fined less i n 1983 compared with 1979, with the exception of drug offences, i t i s provincial statute and municipal bylaw offences which demonstrate the largest decrease i n the use of fines from 72% i n 1979 to 59% i n 1983. This variation i s said to resu l t from far more punitive responses to motoring offenders who were j a i l e d , placed on probation or received other dispositions more frequently in 1983. TABLE 12 B.C. Provincial Court Dispositions by Offence Category, 1979 (%) Offence Type Discharge Probation Fine J a i l Peniten. Other Total(N) Prov/Mun. 0.5 Federal Stat. 1.9 Drugs-Federal 17.4 Criminal Code 9.4 4.7 3.7 8.5 17.8 71.8 0.9 89.5 4.9 63.9 10.1 46.1 25.1 0.0 0.0 0.1 0.1 22.2 31,550 0.0 1,982 0.0 5,163 1.5 29,812 DATA SOURCE: Court Management Information System, B.C. TABLE 13 B.C. Provincial Court Dispositions by Offence Category, 1983 (%) Offence Groupings Discharge Probation Fine J a i l Peniten. Other Total(N) Prov/Mun. 0.2 Federal Statute 3.1 Drugs-Federal 6.6 Criminal Code 4.7 6.6 6.3 12.2 16.8 59.4 4.6 83.1 7.5 67.2 13.9 45.5 31.7 0.0 0.0 0.02 0.1 29.2 43,694 0.0 1,709 0.0 5,676 1.3 42,257 DATA SOURCE: Court Management Information, B.C. - 66 -I t should be noted that the foregoing does not provide a f u l l picture of the use of the fin e in B.C. for reasons related to the methods by which the Courts record information. F i r s t , there are a vast number of offenders who are ticketed for t r a f f i c v i o l a t i o n s and no routine system yet exists to monitor the level of this a c t i v i t y nor the payment of these f i n e s . Police records show that for 1984, 325,487 motoring offenders received tickets for t r a f f i c v i o l a t i o n s . Court r e g i s t r i e s throughout the province receive copies of these t i c k e t s and monitor t h e i r payment. Offenders have the right to dispute these t i c k e t s in provincial court or to v o l u n t a r i l y pay the $35.00 penalty. The vast majority (an estimated 89%) pay the fines and therefore having not appeared before the courts are not "counted" by the Courts management information system. The numbers of parking v i o l a t o r s and municipal bylaw v i o l a t o r s also are not reported by any management information system and again the vast majority of the 530,335 parking v i o l a t i o n s and 23,772 municipal bylaw v i o l a t i o n s i n 1984 simply are paid. A further reason why the Court reported volume of fines imposed i s an incomplete picture of the actual number of fines i s due to Court Services' technique of entering only the most serious d i s p o s i t i o n into t h e i r management information system in the following order of seriousness: j a i l , f i n e , probation, and other. The fine may be a secondary disposition and t h i s information i s not generally available. However, a special computer run was undertaken on Provincial Statute, Motor Vehicle Act offences during 1982 which resulted in a j a i l sentence or hybrid sentence. For those 1,623 offenders who received a j a i l sentence, i t was found that 53.1% (N=862) were j a i l e d only, 38.2% - 67 -(N=620) were j a i l e d and also fined, 6.4% (N=104) also received a fine and probation, 0.9% (N=15) were j a i l e d , fined, placed on probation and had t h e i r license suspended, and 1.4% (N=22) were given probation as well as a j a i l sentence. The high proportion of those who were fined as well as incarcerated may be peculiar to this offence category. The most that can be said i s the fine i s used even more extensively than believed. ( i ) The Amount of Fines No central source of information on the amounts of fines levied in B.C. e x i s t s . The only information available i s that provincial statute driving offences can resul t in a $35 f i n e i f the offence i s equipment-related (e.g., no brake l i g h t s ) or i f i t i s a moving v i o l a t i o n (e.g., speeding) and the driver i s a non-resident of the province or cannot produce a v a l i d drivers' license; otherwise points are assigned for moving vi o l a t i o n s to the license record and penalties may be assessed when the driver renews insurance. Recent amendments to the Motor Vehicle Act and the Offence Act, once in force w i l l a l t e r the types of offences subject to fines and the fine l i k e l y w i l l increase to $75. An unpublished survey of impaired d r i v i n g , fine defaulters i s the only other source of information on the amounts of fines imposed ( B r i t i s h Columbia, 1978). This survey revealed that the amount of the fines for those 34 offenders charged with Section 234 of the Criminal  Code (driving while impaired) ranged from $100 to $750 with the average fine equalling $395 and the most frequent $500. Those 33 offenders charged with driving over .08 were fined amounts ranging from $100 to $1,000, the average fine being $441. - 68 -D. THE FINE AS AN ALTERNATIVE TO PRISON Many countries (e.g., Sweden, Finland, Denmark, and West Germany) have begun to consider the use of imprisonment only as a means to protect society from the most serious and dangerous offenders (Newton, 1981). Criminal j u s t i c e systems in these countries introduced as a goal the reduction of the number of inmates i n i n s t i t u t i o n s and the length of th e i r j a i l sentences. There are a number of plausible reasons why reduced inmate populations i s desirable including: 1. the be l i e f that incarceration i s inhumane, 2. the r e a l i z a t i o n that incarceration i s not an appropriate environment for r e h a b i l i t a t i o n , and 3. the cost of housing inmates i s increasingly p r o h i b i t i v e . These are the very reasons why Sweden is seeking to reduce i t s prison population: In Sweden, short term imprisonment i s nowadays considered to be an inappropriate sanction from the s o c i a l , ethical and economic points of view (Thornstedt, 1975:312). Achieving the goal of reduction of prison populations requires thought about alternatives to prison. Although contemporary sentencing theories such as reparation, as expressed through community service orders, are emerging to compete for use in place of prison sentences the t r a d i t i o n a l fine seems more often the preferred a l t e r n a t i v e . In Sweden, "[1 l e g i s l a t i v e l y , a concerted e f f o r t i s being made to replace imprisonment with fines ... (Newton, 1981:134). Imprisonment for careless driving has been abolished in Sweden and the fine substituted, s i m i l a r l e g i s l a t i o n i s being examined for the offence of drinking and driving (Thornstedt, 1975). - 69 -The use of the fine continues to r i s e sharply in Sweden while prison admissions dropped 25.5% from 4,700 i n 1969 to 3,500 i n 1975 (Newton, 1981:135-136). S i m i l a r l y , Finland stresses the use and effectiveness of fines as a substitute for imprisonment (Newton, 1981 •137). In Denmark fines are now used for offences for which j a i l was previously obligatory (Newton, 1981:137). This trend away from the use of prisons i s not so apparent in Canada or the United States. Prison populations in both countries are e i t h e r continuing to increase (by 6% i n the U.S.) or are remaining stable as in B.C. (Criminal J u s t i c e Newsletter, 1984:1). The U.S. i s continuing to experience prison overcrowding which ranges from 2-17% i n state prisons and 5-31% in federal prisons and some states are releasing prisoners outright from local j a i l s as a r e s u l t of this congestion (Criminal J u s t i c e Newsletter, 1984). Nevertheless, state policy on a l t e r n a t i v e s to prison i s n e g l i g i b l e . In the Netherlands j a i l sentences are scorned upon so much that most offences w i l l receive a fine while r e l a t i v e l y minor offences w i l l be dismissed e n t i r e l y . A j a i l sentence i s contingent on the a v a i l a b i l i t y of bed space since no "double c e l l i n g " or overcrowding i s allowed. "Walking convicts" sentenced to j a i l await a bed. In 1975, 14,000 such convicts were granted 14 days amnesty. Of the t o t a l , 6,000 had sentences of 14 days or l e s s and never had to f u l f i l l t h e i r sentences (Newton, 1981). No c i v i l outcry against t h i s amnesty has been recorded. England has used non-custodial sentences since the late nineteenth century. Fines, probation and conditional discharges have a l l been used as alternatives to prison. Community service orders were introduced in - 70 -the Criminal J u s t i c e Act of 1972 (Newton, 1981) and are used also as an a l t e r n a t i v e to prison. Magistrates i n England report they are under pressure from government to prevent overloading the prison and probation services (Carter and Cole, 1979). * In Germany a strong motivating factor to increase the use of fines and substitute them for sentences of l e s s than six months was due to pressure on prison capacity (Albrecht and Johnson, 1980:7). Judges were instructed to use fines in place of short term imprisonment i n Germany (Albrecht and Johnson, 1980). E. IMPEDIMENTS TO THE USE OF THE FINE The increased role of fines has been ignored for the most part in the U.S and Canada (even though the l a t t e r uses the fine quite extensively) due in part at l e a s t to the competing i n t e r e s t i n r e s t i t u t i o n and compensation. Interest in r e s t i t u t i o n and compensation has arisen l a r g e l y because of increased concern over the previously forgotten victim of crime. The argument i s that rather than the victim seeking redress c i v i l l y , the state should ensure that the victim i s compensated either by the j u d i c i a r y ordering: a) r e s t i t u t i o n whereby the offender restores to the victim the goods or money taken, or b) victim compensation whereby the offender compensates the victim in kind for damages. A t h i r d alternative i s state compensation whereby the victim applies and, i f e l i g i b l e , i s paid damages from a state fund. The continued use of the fine i s seen as a threat to court-ordered compensation since the fine diminishes the offender's resources and the p o s s i b i l i t y of victim compensation (Wasik, 1978). Moreover, i t i s questioned whether the state has a p r i o r i t y claim (e.g., through a fine) - 71 -over the individual victim (e.g., through r e s t i t u t i o n ) (Samuels, 1970). To reconcile the desire for r e s t i t u t i o n , as an aid to victims, and the extended use of the f i n e , i t has been suggested that the fines collected be placed within a fund for victims. C a l i f o r n i a began a compensation scheme in 1965 and by 1982, 7,741 victims of v i o l e n t crimes received 18.3 m i l l i o n d o l l a r s (the average settlement equalled $2,400) in one year. The victims' out-of-pocket expenses, missed work, loss of job, job retr a i n i n g and uninsured medical b i l l s are covered to a maximum of $23,000 per victim (Criminal J u s t i c e  Newsletter, 1983). Over t h i r t y - f i v e states in the U.S now have some form of victim compensation. Although the p o l i c i e s d i f f e r somewhat in terms of what costs and victimizations are e l i g i b l e for compensation, and how the funds are subsidized (e.g., from state general revenue, surcharges on a l l offenders, or fines) the main intent so far has been to compensate the victims of viole n t crimes for fi n a n c i a l losses, medical care, and loss of income. Few schemes cover pain and suffering and loss of property. Over 30 m i l l i o n dollars was expended in 1978/79 i n 27 of these 35 U.S. states ( V a l l i e r e s , 1982). In an e f f o r t to reinstate the p r i n c i p l e of victim compensation in England, the issuance of orders was consolidated i n The Criminal J u s t i c e  Act of 1972 (Wasik, 1978). The courts' use of compensation orders subsequently revealed a lack of consistent use of them in England. There i s no evidence magistrates gave p r i o r i t y to victim compensation over other dispositions such as the fine and imprisonment (Wasik, 1978). The use of compensation orders was seen as problematic when offenders lack resources or are imprisoned and deprived of an income and this may - 72 -fr u s t r a t e the magistrates' use of the orders. Wasik recommends therefore that the source of victim compensation be state compensation boards which eliminates sole dependence on the offender to provide compensation. Offenders ordered to pay compensation would see t h e i r funds diverted into a general fund dispensed by these review boards. B.C. currently also has available state-funded compensation to victims. The Workers Compensation Board administers the Criminal Injury Compensation Fund which i s very s i m i l a r to the schemes in the U.S. Here, however, the government funds the scheme e n t i r e l y from general revenue. In Canada while the fine can stand alone as a penalty, r e s t i t u t i o n or compensation currently i s ordered only as part of a probation order. The provisions for r e s t i t u t i o n or compensation are not used frequently and often are considered only to save the victim the expense of a c i v i l s u i t to regain stolen property or receive compensation (Law Reform Commission, 1974a). Once B i l l C-19 i s proclaimed f e d e r a l l y ( i t passed second reading on February 7, 1984) i t w i l l have a major impact on the Criminal Code of Canada including i t s sentencing provisions. Restitution which includes "special" and "punitive" damages for both property damage and bodily injury could then be imposed as a separate sanction. The prescribed maximum for punitive damages is $2,000 for a summary offence and $10,000 for an indictable offence. Special damages could include loss of income a r i s i n g out of the offence. There i s a further provision for r e s t i t u t i o n to be made in the form of unpaid work for the victim. F a i l u r e to pay r e s t i t u t i o n can re s u l t in a garnishment - 73 -order, seizure of property or imprisonment for not more than six months for a summary offence or two years for an indictable offence. Once t h i s B i l l comes into force i t i s expected to overcome the reluctance, on the part of the j u d i c i a r y , to use r e s t i t u t i o n as part of a probation order since i t i s seldom used now (Law Reform Commission, 1974a). However, i f the real reason for the j u d i c i a r y ' s reluctance to use r e s t i t u t i o n i s due to the need to assess claims and incorporate c i v i l procedures into the criminal t r i a l process, as believed by the Law Reform Commission of Canada (1974a), then r e s t i t u t i o n w i l l continue to be an under-utilized sanction. There are s i g n i f i c a n t doubts about the legitimacy of compensation schemes and the state's obligation to victims (Davidson, 1965; Von Hirsh, 1983). It i s argued that the state makes no legal promise to protect everyone, a l l the time, from criminal i n j u r i e s . Rather, i t attempts to keep the peace and crime to a minimum (Law Reform Commission, 1974a:18). At most, the state may be under a moral obligation to provide compensation. Von Hirsh (1983) has argued the i n s t i t u t i o n of the criminal sanction above a l l stresses condemnation of criminal behaviour. Other values such as compensation or r e c o n c i l i a t i o n are not given precedence. He goes on to contend: It i s unfair, once one has the i n s t i t u t i o n of punishment, to s h i f t in an e c l e c t i c fashion between condemnatory and non-condemnatory responses: to compensate when the perpetrator i s capable of paying, or mediate when the parties are prepared to talk to each other, and punish when neither compensation nor mediation is feasible (Von Hirsh, 1983:60). - 74 -Von Hirsh argues either one has a nonpunitive response for the whole universe of behaviour which criminal sanctions now deal with, or such responses are limited to behaviours which are removed from the f i e l d of criminal j u s t i c e . Nevertheless, he believes, f a i l i n g to condemn vic t i m i z i n g scarcely seems a morally adequate response to the "wrongs" committed. A sanction which embodies blame i s a general statement of wrongfulness, of moral disapprobation, and usually i s seen as punishment. Re-introducing compensation into the arena of criminal law affe c t s the general aims of the system as well as the message i t intends to impart to the offender and the community in general. Contrary to what many believe, including the Law Reform Commission of Canada (1974a), i t i s not "obvious and natural" to incorporate compensation into the criminal j u s t i c e sentencing process. To do so requires major re-thinking of the d i s t i n c t i o n which has arisen over the l a s t few centuries between t o r t or c i v i l law and criminal law. The re-introduction of ancient notions of compensation would require compensation to be considered a coercive measure administered by the state, and unless support can be garnered from the j u d i c i a r y , which there i s no ind i c a t i o n i t can be, i t w i l l remain an un-used sanction (Stenning and Ciano, 1975). F. SUMMARY AND CONCLUSIONS As i s apparent the amount of information on the use of the fine in various j u r i s d i c t i o n s ranges from minimal to f a i r l y extensive. Nevertheless, some comparisons can be made on sentencing patterns within and across countries. I t should be noted, f i r s t , however that many factors serve to confound comparisons: - 75 -1. the types of deviant behavior which are criminalized vary, as do legal d e f i n i t i o n s . One can, however, f a i r l y safely compare offence types such as theft and robbery which are criminalized s i m i l a r l y in a l l i n d u s t r i a l democracies ( G i l l e s p i e , 1980), and 2. the existence of prosecutorial screening and plea-bargaining may skew the s t a t i s t i c s . With the exception of the United States, fines are the most common disp o s i t i o n for almost every offence except some crimes of violence in the countries reviewed. Fines are used almost always for t r a f f i c offences in a l l countries, including the United States. The goal of substituting the fine for imprisonment i s evident i n some countries and arguably accomplished in Germany and Sweden ( G i l l e s p i e , 1980; Newton, 1981). The practice of using fines as an al t e r n a t i v e to imprisonment appears to have occurred far more frequently in these countries where there i s both j u s t i c e system support and public support for the reduction of rates of imprisonment. One reason for the lack of o f f i c i a l policy to substitute fines for imprisonment in Canada and the U.S. may be attributable to the support given to the use of community and victim service orders and compensation as sentencing al t e r n a t i v e s and the continued and frequent use of probation. An equally plausible reason i s the North American attitude toward offenders and the responsiveness of the state to these attitudes. As noted, when offenders sentenced to j a i l i n Denmark were given amnesty and did not f u l f i l l t h e i r sentence, no public outcry about the "leniency" of the state was evident. North American society may not feel the revulsion expressed by c i t i z e n s of the Netherlands toward imprisonment. If anything, pressure groups in Canada and the U.S. continue to demand - 76 -harsher responses to offenders, and the criminal j u s t i c e system responds to these demands by imprisoning offenders. Recent s t a t i s t i c s from B.C. demonstrate the increased use of j a i l sentences for the more minor provincial statute offenders, most of whom are convicted of motor vehicle v i o l a t i o n s . This "get tough" approach i s apparent in new p o l i c i e s being developed in B.C. on spouse assault and c h i l d sexual abuse where the emphasis i s on prosecution, incapacitation, and to a far lesser extent, r e h a b i l i t a t i o n . Decarceration and the substitution of fines for prison sentences may diminish the legitimacy of the state i n the eyes of law abiding c i t i z e n s and victims of crime in Canada and the U.S. (Spitzer, 1977). High crime rates and the mood of increased punitiveness create pressure on the state to respond in a heavy-handed manner, or else have the legitimacy of i t s control mechanisms questioned. Costs associated with mounting prison populations, on the other hand, pressure the state to reduce i t s f i s c a l burden by encouraging the use of alternative sentences (Zedlewski, 1984). These problems are exacerbated when lobby groups demand that victims receive high p r i o r i t y by the criminal j u s t i c e system. The solution to date, in B.C. at least, has been to encourage community service, victim service, r e s t i t u t i o n , and compensation as conceivable alternatives to j a i l and to increase the use of j a i l sentences for motoring offenders. What remains to be seen, however, i s the means by which the j u s t i c e system of B.C. can continue to finance the increased costs of incarcerating these offenders in the current economic climate of f i s c a l r e s t r a i n t . - 77 -The rationale behind the use of the fine and i t s expansion in some j u r i s d i c t i o n s and contraction in others over time, can be understood generally within the context of the state's often contradictory functions of legitimation and accumulation and i t s attempt to balance the demands placed upon i t s resources. The following chapter describes the e f f i c i e n c y of the f i n e . From an administrative point of view the concern i s whether bureaucrats f i n d the enforcement of the fine e f f i c i e n t and e f f e c t i v e . The fairness and economy of the fine and hence the legitimacy of the state can be c a l l e d into question should the administration and enforcement of this sanction prove f a u l t y . - 78 -CHAPTER 5 THE EFFICIENCY OF THE FINE: ENFORCEMENT ISSUES The payment of a fine denotes the completion of the sentence and can be considered a measure of the fine's e f f i c i e n c y , and i n d i r e c t l y , i t s effectiveness. An unpaid fine or any incomplete sentence cannot conceivably achieve i t s aim. The question of fine enforcement and default i s addressed separately due to the importance of this aspect of the sentencing process to the fine (Latham, 1973). The f i r s t section of thi s chapter describes the fine enforcement techniques u t i l i z e d in various countries and evidence as to t h e i r effectiveness. This i s followed by a f u l l e r discussion of two major enforcement issues a f f e c t i n g the use of the f i n e , namely, imprisonment in default, and the u t i l i z a t i o n of a fine option scheme. A. ENFORCEMENT METHODS UNDERTAKEN IN SELECTED JURISDICTIONS 1. England There are no national, c e n t r a l l y c o l l e c t e d s t a t i s t i c s in England on the percentage of unpaid fines or the extent and effectiveness of enforcement (Carter and Cole, 1979). The l e t t e r of reminder, a summons to attend a means hearing where the amount of the fine or the terms of payment may be changed, a writ of committal or attachment of earnings orders a l l may be implemented to enforce payment. This l a t t e r technique was introduced in the Criminal J u s t i c e Act, 1967, which r e s t r i c t e d imprisonment on default of a fine and endorsed new methods of enforcement (Morgan and Bowles, 1981). If offenders can prove at the means hearing they have no resources nor have they had the resources to f u l f i l l the sentence, they may not be - 79 -committed to prison in default (Latham, 1973). On the other hand, i f i t was found the defendant did have means, but none at the time of the inquiry, the defendant may be committed to j a i l . If genuinely unable to have paid the f i n e , the court has the power of remission or can order a supervisory payment order. In a sample of 543 male offenders in Birmingham Magistrates Court, Sparks (1973) found that 43 (7.9%) offenders were given no time to pay t h e i r fines and 19 (3.5%) were imprisoned d i r e c t l y on other charges. Of the remaining 481 cases given time to pay, 97 (20.2%) had an alternative j a i l sentence f i x e d at the time of sentence and the remaining 384 (79.8%) did not. Of the 97 who had an alternative j a i l sentence, 14 (14.4%) paid, 26 (26.8%) absconded, 10 (10.3%) paid af t e r a warrant of committal was issued and 47 (48.5%) were eventually committed to prison. Of the total group who had fi x e d j a i l sentences in the event of default, only 24.7% paid the i r fine at some stage of the enforcement process. Of the 384 offenders in Sparks (1973) sample who had no fixed j a i l a l t e r n a t i v e , 222 (57.8%) paid t h e i r fine with no enforcement taken, 55 (14.3%) absconded, 8 (2.1%) paid af t e r receiving a reminder l e t t e r , 23 (6.0%) paid af t e r a show cause summons was issued, 37 (9.6%) paid a f t e r a warrant was issued to return to court, 6 (1.6%) paid at or after a means inquiry, 10 (2.6%) paid af t e r a warrant of committal was issued, and 23 (6.0%) were committed to j a i l . Thus 79.7% of this group of fined offenders paid t h e i r fines with or without some form of enforcement short of imprisonment. - 80 -Sparks found that the highest rate of committal in default was for breaking and entering and larceny offences. He also found that the more pri o r offences, the more l i k e l y the offender would abscond or be committed to j a i l . The worst r i s k s , as i s evident, were those with a fixed j a i l sentence al t e r n a t i v e . There was no tendency for offenders with larger fines to have higher rates of committal or of absconding. Motoring offenders and those convicted of v i o l e n t offences had lower f a i l u r e rates and tended to have fewer p r i o r offences on thei r records while property offenders and alcohol related offenders had higher f a i l u r e rates depending on t h e i r number of p r i o r convictions. In Manchester, enforcement o f f i c e r s are employed s p e c i f i c a l l y to execute warrants in the fine default process. Latham (1973) found most fines are paid without the need for any enforcement or for only preliminary enforcement measures such as l e t t e r s of warning. About 80% of a l l fines are paid "volunt a r i l y " more or less within the time allowed. At le a s t half of those who receive a f i n a l warning pay at that stage with a similar proportion paying once a warrant i s issued. Of 7800 warrants executed in Manchester during 1972 for defaulters to attend court, 4800 (61.5%) resulted in forthwith payment. Latham (1973) speculated that the remaining 3000 required to attend court probably either could not or would not pay. Latham (1973) found in an examination of 243 cases of committal upon default that the process secured payment in a l l 243 cases either immediately or within two to three days aft e r a r r i v a l in prison. In t h i s instance, Latham concluded that committal as an enforcement - 81 -technique in securing payment i s e f f e c t i v e . Latham also found evidence that e f f o r t s are made by court s t a f f in Manchester to a s s i s t those who cannot pay at a l l or in time. Therefore, he argues, firm action in the small number of cases where i t i s j u s t i f i e d i s an e f f e c t i v e way of ensuring the fine's payment. Softley (1973) examined the eff e c t s of sections of the Criminal  J u s t i c e Act, 1967 which r e s t r i c t e d the use of imprisonment of fine defaulters, endorsed new methods of enforcement by attachment of earnings and assets orders, and raised the maximum fine from 100 to £400 (since then i t has been raised to£l000) in Magistrates Courts. By comparing a sample of offenders fined before the Act came into e f f e c t (11=1171) with a sample fined afterwards (N=1097), Softley found: a) that the amounts of fines were very s l i g h t l y larger than those imposed pr i o r to the Act (48.5% were s t i l l fined up to £5 i n 1968 compared with 53% i n 1967) , b) the prison in default rate was reduced by one-third from 1.0% p r i o r to the Act to 0.7% a f t e r the Act, and c) the f u l l promise of attachment of earnings orders was yet unknown (only 1 of a sample of 1097 offenders was subject to this measure i n early 1968) . Beyond t h i s , Softley's study showed that 10.3% of the fines levied i n 1967 and 11.3% i n 1968 remained unpaid nine months afte r the sentence was imposed. The highest proportion of offences for which no payment was made was for drunkenness, and the larger the fine the higher the proportion of defaulters. (This finding i s contrary to Sparks' (1973) finding of no relationship between the amount of the fine and default rates.) - 82 -In both the year prior to the introduction of the Act and the year afterwards, the means warrant was the most frequently used measure of enforcement, followed by reminder l e t t e r s . Fewer warrants of committal were granted as an enforcement technique i n 1968 and there were less warrants of committal upon sentencing in the same year (1.1% versus 3.4% in 1967). Warrants of committal issued at sentence were a l l for offenders of no fixed abode in 1968, whereas prior to the Act there was a broader range of reasons used for immediate committal. Softley (1973) found no order to the methods used by the courts, some began with a l e t t e r of warning and others began with means summonses or warrants. Letters and means warrants were the most successful methods of enforcing f u l l payment i n 1968, while means summonses and means warrants were most successful in 1967. In a l a t e r study, Softley (1978) examined once again the effectiveness of enforcement techniques. He found that only 39 (1.5%) of his sample of 2596 offenders were refused time to pay while the remaining 2557 were to pay by installments or in a sp e c i f i e d time period. (Carter and Cole (1979) confirmed i n a l a t e r study that fewer than 2% of a l l defendants fined are refused time to pay.) Warrants of committal for the group refused time to pay were suspended f o r 23 of the 39. Sixty-two (2.4%) had an alternative of imprisonment fixed at sentencing, most often due to the offender being of no fixed abode (although not a l l transients were given such an a l t e r n a t i v e ) . The en t i r e sample were due to have completed payment within eighteen months, although the majority (71%) had due dates ranging from seven days to one - 83 -month. Seventy-seven per cent had paid t h e i r fines within eighteen months. Of those who paid, over half had t e c h n i c a l l y defaulted i n payment at some stage. Of the remaining 23%, 14% had not finished t h e i r payments and 9% had paid nothing. Similar to Softley's previous study in 1973, the factors having the highest c o r r e l a t i o n with non-payment were the number of p r i o r convictions and the sum of the f i n e . Of those offenders with no prior convictions, 89% completed payment, 77.4% of the offenders with one or two prior convictions paid, and 54.2% of those with three or more convictions paid. In terms of the sum of the f i n e and payment, 84.6% of those fined up to£25 paid, 79.3% of those with fines of "£25 to £50 paid, 67.8% of those fined£50 to £ 100, and 45.0% of those with fines of overJtlOO paid. The employment status and income of offenders at the time of conviction was not closely related to the probability of default. This may be due, as Softley (1978) speculates, to the courts a n t i c i p a t i n g problems of c o l l e c t i o n for unemployed and low income groups and either not f i n i n g them or setting a small sum. Enforcement action of some kind was taken once or more often against 47.9% of the 2596 offenders. The most frequent measures were reminder l e t t e r s issued to 34.6% of this group and means warrants served to 64.8% of the sample. A warrant of committal which fixed an a l t e r n a t i v e j a i l sentence was granted f o r 341 or 27.4% of these defaulters, while 194 (15.6%) were issued warrants of committal. The effectiveness of the major enforcement actions taken, in some instances more than once, were as follows: - 84 -Action Number of Number of Percent Paid Offenders Actions Reminder l e t t e r 431 525 50.7 Means summon 236 246 38.6 Means warrant 806 955 39.0 Adjourned hearing 218 358 65.1 Warrant of committal granted 341 341 63.6 Warrant of committal issued 194 194 54.6 Money payment supervision order 84 84 52.4 Attachment of earnings 22 25 92.0 (Softley, 1978:23). S l i g h t l y less than 5% (119) of the offenders eventually served a j a i l sentence for the default of t h e i r f i n e . The offender's compliance with the payment of a fine rests in large part on the decisions and resources of court s t a f f in administering and enforcing payment (Morgan and Bowles, 1981:213). Softley and Moxon (1982) found i n a study of 125 fined offenders during 1981 that the key to e f f e c t i v e enforcement was the speed of action taken with defaulters. The longer one waited before i n i t i a t i n g enforcement action, the more d i f f i c u l t i t was to locate the defaulter, l e t alone enforce payment. Softley (1973; 1978) and Sparks (1973) found that although offenders on low incomes or unemployed are less l i k e l y to be fined or receive only small f i n e s , there i s evidence, nevertheless, that default i s associated with real f i n a n c i a l hardship. Softley (1978) mailed a questionnaire to 83% of his sample of 2596 fined offenders, seven to eight months after t h e i r sentence to determine how they had paid t h e i r f i n e s . Seventeen per cent (368) of the sample responded. Three-quarters of these respondents said they had paid the f i n e , wholly or in part, from t h e i r current income, while 1% who had made f u l l payment - 85 -received the money from someone else. T h i r t y - f i v e per cent of the non-defaulters versus 8% of the defaulters paid some or a l l of the fine out of t h e i r savings. Seventy-eight per cent of the respondents said they had to reduce spending on certain items in order to pay the fine (e.g., shoes, clothing, food and entertainment) and of this group, 8% mentioned using money which would have paid rent and other b i l l s . Of the defaulters, 78% said they put off payment of the fine to buy, in order of frequency, shoes, clothing, food, housekeeping needs, rent, b i l l s , l i g h t , heat, and public transportation. In short, Softley (1978) concludes: Defaulters were more l i k e l y than others to have economised on such items as food, housekeeping, rent and rates, whereas those who had paid on time were more l i k e l y to have used savings or economised on entertainment (p.29). Caution should be exercised, however, when int e r p r e t i n g S o f t l e y 1 s findings since his response rate was extremely low. If offenders are not paying t h e i r fines for reasons other than poverty, one would expect payment, by a l l but a few, once the offender was committed to j a i l . This hypothesis was v e r i f i e d by Latham (1973) who found that of his entire sample of 243 offenders committed to j a i l for default a l l paid t h e i r fine either immediately, or within two to three days after admission to j a i l . Dell (1974) did not, however, find t h i s to be the case in her examination of fine defaulters i n 1972. More than 60% of 10,000 imprisoned defaulters served over half of the i r sentences p r i o r to paying t h e i r fines and being released while 38% served a l l t h e i r sentence. Dell found that many of these offenders - 86 -had been refused time to pay and were without immediate means to s a t i s f y t h e i r sentence. This type of situation was to be addressed with the enactment of the Criminal J u s t i c e Act, 1967 which hindered the j a i l i n g of indigent offenders by compelling the courts to give offenders time to pay. Even pr i o r to t h i s Act, i n 1914 the B r i t i s h parliament enacted a statute against the automatic imprisonment of fine defaulters and began the practice of payments by installments, time to pay, and consideration of the f i n a n c i a l circumstances of the offender (Hickey and Rubin, 1971). Over time the number of people j a i l e d for non-payment of fines decreased from 79,538 in 1913 to 12,497 in 1930 (Hickey and Rubin, 1971:419). Again, i n 1935 magistrates were instructed to r e f r a i n from imposing prison terms in the event of default unless special circumstances such as the gravity of the offence warranted i t . This change made i t necessary for the offender to appear before the court a second time, upon default, i f the prosecution desired to recommend imprisonment. The intention of these l e g i s l a t i v e changes and procedural guidelines was to reduce the number of imprisoned fine defaulters. S i m i l a r l y , the introduction of payment supervision orders in 1952 whereby the offender i s placed under the supervision of a probation o f f i c e r u n t i l the fine i s paid was to address concerns about the imprisonment of defaulters. Unfortunately a l l these measures have not eliminated the j a i l i n g of fin e defaulters and the exceptions s t i l l s p e c i f i e d , i . e . , transients with no fi x e d abode who may immediately be j a i l e d when fined, are often the very group who require time to pay even though they are seen as the worst r i s k s by the courts. - 87 -Softley (1978) and Sparks (1973) both found that the committals to prison for f i n e default d i f f e r dramatically from one area of England to another. The estimated national committal rate for fine defaulters between the years 1950 and 1968 was 5% (Sparks, 1973). Following the introduction of the Criminal J u s t i c e Act, 1967 t h i s rate decreased and was estimated at 0.6% during 1973 (Morgan and Bowles, 1981). There i s evidence, however, that the rate has risen again to 1.0% or seventeen thousand admissions per year. Evidence that fine defaulting i s a growing problem at a l l stages of the enforcement process and the desire to substitute the fine for more serious penalties for increasing numbers of offences suggest that the problem of defaulting w i l l continue to grow (Morgan and Bowles, 1981). In an attempt to address this problem the adoption of some variation of the Swedish day-fine was considered in England. This was thought to be a radical proposal which the Home O f f i c e f e l t would present pract i c a l problems of obtaining accurate "means" information. Morgan and Bowles (1981) argue that English l e g i s l a t o r s and policy makers did not do j u s t i c e to the concept of the day-fine p r i o r to discarding i t and focussing on administrative economy as t h e i r foremost concern. 2. Scandinavian Countries In Sweden and other Scandinavian countries, an administrative agency c o l l e c t s fines and i s able to extend payments and allow for payment by installments. "Fines which are not paid can be converted to imprisonment" (Thornstedt, 1975:311, author's own emphasis). This - 88 -usually amounts to one day in j a i l for every day-fine not paid. However, a number of conditions must be met p r i o r to such conversions. Evidence must be available that the day-fine has been adapted to the offender's a b i l i t y to pay and the use of extensions of time and payment in installments has been exhausted. Even after conversion, the j a i l sentence may be suspended, but should offenders be committed, they are not able to buy thei r way out of prison (Thornstedt, 1975). In 1967, 13.8% of 29,000 cases were referred back to the prosecutor for non-payment, of which 100 to 200 (0.3-0.7%) were admitted to prison (Law Reform Commission, 1974a). The r a t i o of fines to imprisonment i s even lower now. Of 250,000 fine s imposed in one year in the early 1970's, 130 cases (0.05%) resulted in imprisonment (Thornstedt, 1975). Further, Sweden claims the day-fine led to a 50% reduction in the number of f i n e defaulters imprisoned (Law Reform Commission, 1974a). 3. The Netherlands In the Netherlands, time to pay and payment by installments i s the normal means by which fines are paid (Steenhuis, 1979). If payment is in arrears a l e t t e r of warning i s issued and the fine i s increased by the equivalent of 10 to 12 U.S. d o l l a r s . If the i n i t i a l l e t t e r i s ignored, a second notice t h i r t y days l a t e r i s issued and the amount of the fine i s increased by 20% of the or i g i n a l amount. Imprisonment i s the l a s t and most coercive measure to force payment with each£6 i n default equalling one day in j a i l to a maximum of six months (Steenhuis, 1979). - 89 -4. West Germany Enforcement procedures i n Germany may involve the following steps: 1) a warning l e t t e r from the court clerk; 2) a c i v i l court order requesting to seize and s e l l property; 3) garnishee of wages; and, 4) an order for imprisonment signed by the sentencing judge (Albrecht and Johnson, 1980). When the sentencing judge s p e c i f i e s the value of the f i n e , the number of days to be served in prison in default i s also noted and for t h i s reason a re-appearance of the offender before the court i s not necessary. Payment of part of the fine reduces the length of the prison term and f u l l payment means immediate release. In almost 50% of the cases Albrecht and Johnson (1980) reviewed, the fine was paid in the sp e c i f i e d time, a further 16% paid a f t e r receiving a l e t t e r of warning, 16% more required installment payments which they then completed, 2% were subject to compulsory c o l l e c t i o n (e.g., garnishee of wages), 11% paid when the order of imprisonment was issued, 4% went to j a i l , and a remaining 1% had not s a t i s f i e d t h e i r f i n e f i v e years aft e r i t was imposed. In other words, 95% paid one way or another short of being imprisoned. Albrecht and Johnson (1980) found that court clerks would not press strongly for the payment of the f i n e s . Rather, the clerks responded favorably to pleas for extensions and the authors speculate i t i s l i k e l y that those penalized were ignorant of t h e i r rights and incapable of managing this system. The authors go on to suggest that those people - 90 -who ultimately experience the harsher forms of enforcement, because of t h e i r incapacity to understand the system, are of low social status, u n s k i l l e d , poor, and uneducated. In practice, imprisonment of defaulters i s rarely used in Germany. Of a l l admissions to j a i l , fine defaulters account for between 2.7 to 4.0% ( G i l l e s p i e , 1980). 5. United States Two studies show that 47 to 60% of offenders fined serve j a i l sentences in default in the United States (Columbia Law Review, 1971:1288). It i s believed also that 40 to 60% of a l l offenders i n county j a i l s in the U.S. were fine defaulters in 1969 (Hickey and Rubin, 1971). These proportions are extremely high p a r t i c u l a r l y in l i g h t of the infrequency of the use of the fine for offences other than motor vehicle v i o l a t i o n s . A further reason why i t i s surprising that the number of defaulters j a i l e d i s so high is that constitutional challenges have arisen over the l e g a l i t y of incarcerating defaulters ( t h i s i s discussed in more detail in Chapter 8 ) . L i t t l e information i s available about the enforcement of fines i n the U.S. with the exception of the frequent use of imprisonment in default. T h i r t y - f i v e states in the U.S. have "money-time exchange equations" to determine the number of days an offender w i l l spend in j a i l i f the f i n e i s defaulted. This varies extensively, ranging from $1 to $20 per day and has changed very l i t t l e over time (Reynolds and Rock, 1976). - 91 -6. Canada If an offender f a i l s to pay a fine i n the time a l l o t t e d , the court s t a f f who monitor payments and administer enforcement t y p i c a l l y have few options at t h e i r disposal. With the exception of B.C., which w i l l be discussed l a t e r , no l e t t e r s reminding the offender of the overdue fine or summonses to attend "show cause" hearings and explain why the f i n e has not been paid are used. Warrants of arrest and committal are the only options. An offender charged under a section of the Criminal Code  of Canada or under most provincial statutes throughout the country w i l l have s p e c i f i e d an alternative j a i l sentence should the fine not be paid. I t is also the practice of the courts to order some fines paid immediately and i f t h i s i s not possible the offender may be j a i l e d at once. As well, Section 646 (9) of the Criminal Code allows the accused to s i g n i f y i n writing that he or she prefers to be committed to j a i l rather than await the expiration of the time allowed to pay a f i n e . On such a request, the judge w i l l issue a warrant of committal. It i s recognized that a major problem with the use of the fine in Canada i s the l e g i s l a t e d default provisions whereby a d o l l a r amount for the fine i s s p e c i f i e d along with the number of days to be served in j a i l should the f i n e not be paid. As a r e s u l t of this provision i t i s estimated that "... between one-quarter and one-half of short prison terms are handed out for fine defaults" (Liaison, 1983:30). In Saskatchewan during f i s c a l year 1970/71, 48.2% of a l l admissions to provincial j a i l consisted of defaulters (Law Reform Commission, 1974a:32). - 92 -In H a lifax, Jobson (1970) found that 92% of the persons fined pay t h e i r fines and of the remaining 8%, approximately 25% are never located, 69% pay when the police serve the warrant, and 6% go to j a i l for fines often less than $50 in value. The Law Reform Commission (1974a) reported on 830 fine s imposed for Criminal Code offences in 1971. They found that 76% of the fines were paid in time. Of the 199 offenders who did not pay their f i n e s , 158 (79%) were issued warrants but only 81 (51%) of the warrants were executed. Of those executed, 73 (90%) resulted in payment and the remaining 8 (10%) defaulters were committed to j a i l . Thus, 118 or 14% of the o r i g i n a l 830 offenders avoided enforcement, 85% paid immediately or afte r some enforcement and one per cent of the sample went to j a i l , ( i ) B r i t i s h Columbia In 1974, B.C. set a precedent in Canada by amending i t s Summary  Conviction Act to disallow the imprisonment of persons convicted summarily by reason only that an offender had defaulted on a f i n e . C i v i l enforcement proceedings including l e t t e r s of reminder and show cause hearings were to replace warrants of committal. No information i s available on the e f f i c i e n c y of these measures in enforcing payment of fines imposed as a re s u l t of findings of g u i l t under provincial statute offences. I t was generally believed, however, that the rate of sentenced admissions for fine defaulters which dropped to 21.7% of a l l admissions in 1976 compared with 31.5% the year p r i o r to the amendment was a d i r e c t r e s u l t of the amendment. - 93 -The proportion of fine defaulters within provincial j a i l s continued to decrease from 1976 up u n t i l 1980/81 when fine defaulters represented 16.4% of the total admissions to provincial j a i l s . Table 14 which shows the number and percentage of default admissions to sentenced admissions between f i s c a l years 1979/80 and 1983/84 demonstrates, however, that the proportion of fine defaulters once again increased a f t e r 1980/81 for the following two years and then decreased substantially to i t s lowest level i n 1983/84. TABLE 14 Sentenced and Default Admissions in B.C. I n s t i t u t i o n s , 1979-1984 Year Total Sentenced Admissions Total Default Admissions (%) 79/80 7,032 1,153 (16.4%) 80/81 6,856 1,124 (16.4%) 81/82 8,401 1,579 (18.8%) 82/83 11,702 2,105 (18.0%) 83/84 12,470 1,616 (13.0%) If one examines the default admissions separately, the actual number of default admissions rose by 40.5% from 1980/81 to 1981/82 and then again by 33% from 1981/82 to 1982/83 and has almost doubled (82.6%) between 1979/80 and 1982/83. The 23.2% decrease i n 1983/84 over the year p r i o r i s considered encouraging by j u s t i c e system administrators concerned about prison congestion and i t s associated costs in general and the imprisonment of defaulters in p a r t i c u l a r . Of the 2,105 people imprisoned i n 1982/83 for default, 211 (10%) paid t h e i r fines and were subsequently released while in 1983/84, of the 1,616 persons imprisoned, 225 (14%) were released upon payment of t h e i r - 94 -f i n e s . This can be taken to mean that the remaining 1894 offenders in 1982/83 and the 1391 offenders i n 1983/84 were either indigent or w i l l f u l l y refused to pay their f i n e s . The only other sources of fine enforcement information available i n B.C. are unpublished reports of two surveys conducted in 1978 and 1979 of fine defaulters on Vancouver Island. The 1978 survey found that of the 633 sentenced admissions recorded over a f i v e and one-half month period, 130 or 20.5% were fine defaulters. Upon release, 18 (14%) had paid t h e i r f i n e , 3 (2%) were s t i l l considered active cases, and 109 (84.0%) were released when th e i r sentence expired. Of the 18 who had paid, 15 had served some time and therefore paid a pro-rated balance, and the remaining 3 paid the entire fine j u s t p r i o r to serving any of th e i r time. These findings p a r a l l e l closely the provincial proportions of f i n e defaulters and the percentage who pay t h e i r fines to secure release. The 1978 survey examined in more det a i l f i l e s on 34 j a i l e d defaulters who had been charged with impaired dr i v i n g . The amount of the fines ranged from $100 to $750 (x=$395) and the number of days to be served in default varied from 6 to 47 days with the average number equalling 23 days. The do l l a r value per day served ranged from $3.33 to $50.00 per day (x=$22.70). The value of the total fines for these offenders was $13,430 and the total number of days to be served i n default was 765. Taking into account one-third remission of the j a i l sentences for good behavior, 535 days would be served by these defaulters. A further sub-sample of 32 of the total f i l e s surveyed in - 95 -1978 revealed that only one person was ordered to pay forthwith and and was subsequently imprisoned. Of the 25 offenders who were under 22 years of age or younger and who were to have mandatory means in q u i r i e s p r i o r to imprisonment for default as per Section 646(10) of the Criminal  Code, there was no evidence that such inqu i r i e s were conducted although probation o f f i c e r s indicated they usually are undertaken. The unpublished 1979 survey of offenders fined between January and December of 1979 i n V i c t o r i a , B.C., found that of 1,658 offenders fined, 65% were charged with alcohol related and/or driving offences. Ninety per cent of the fines were for $500 or less and 90% received 30 days or less as an alternative j a i l sentence in the event of default. Of a smaller sub-sample of 855 fined offenders, 21.4% were found to have paid t h e i r fine immediately prior to departing the court, a further 37.9% paid more or less on time, 29.2% were s t i l l in the process of paying o f f the f i n e , and 6% had defaulted completely. A p r o f i l e of fine defaulters in provincial i n s t i t u t i o n s during 1983/84 was made available by the Corrections Branch of B.C. Of the 1,616 defaulters i n prison that year, the majority (57.4%) were between 22 and 34 years of age. The remaining defaulters, less than 22 years of age and 35 or older, were evenly d i s t r i b u t e d . The vast majority of these defaulters were male (94.9%). While the majority of offenders were non-Native (81.7%), Native offenders nevertheless appear to over-represent the 5% of Native persons believed to reside in the province of B.C. Only 34.3% of the defaulters had no previous formal contact with - 96 -the j u s t i c e system. The remaining defaulters had either been in j a i l previously (59.7%) or had been on probation, or some other form of community based supervision. Fifty-seven per cent of the defaulters were sentenced to between 1 and 14 days in j a i l , 34% had sentences ranging from 15 to 30 days and the remaining 9% were to serve between 31 and 720 days. Between 1 to 10 actual days were served by 70.3% of the defaulters, 24.3% served 11 to 30 days, and the remaining 9.4% served between 31 and 270 days. The offences for which the defaulters o r i g i n a l l y were fined and subequently committed to j a i l ranged from breaches of probation and s h o p l i f t i n g to serious sexual and viole n t offences. The percentage breakdown (which does not equal 100% due to rounding) i s as follows: Close to half the defaulters were convicted of motoring offences. Of t h i s group, almost 90% were drinking and driving related offenders. The discovery that a large proportion of j a i l e d fine defaulters in B r i t i s h Columbia have been charged with impaired driving i s not unusual as t h i s type of offender continues to comprise the majority of j a i l e d defaulters. Since 1974 there has been a "get tough" policy on Offence Percentage (N=1616) Administrative (includes matters related to Family Relations Act, Maintenance, Customs, etc.) Breach of Probation Drugs Motor Vehicle Related V i o l e n t Offences Against Others Property and Theft Offences Public Order 3.0 2.3 12.0 49.3 5.5 18.8 8.9 - 97 -drinking and driv ing in B.C. As a resu l t of th is po l i cy , law enforcement has been stepped up and the typ ica l sentence for a f i r s t offence i s a f a i r l y large f i ne . Thus i t i s not surpris ing that as more offenders are charged with th i s offence and f ined they would eventually make up a large portion of the default admissions to provincial i n s t i t u t i o n s . B. ENFORCEMENT ISSUES 1. Imprisonment in Default of a Fine As evident in the preceding discussion, every j u r i s d i c t i o n has some provision for the imprisonment of f ine defaulters. I t may be used as a l a s t resort in some countries and a routine in others. There are differences in the manner by which judges may specify the number of days to be served i f the f ine is defaulted. In England, magistrates have the choice of specifying the days at the same time the f ine i s imposed or l a te r at a default hearing. In Canada and West Germany the days are almost always spec i f ied. With the exception of Sweden and the Netherlands^ no countries have c lear guidelines on the do l la r value of each day served. In fac t , in some countries, Canada being no exception, the default time appears to bear no re lat ionship to the value of time when, on average, one day can be served for every three to seventy dol lars owed. Specifying the number of j a i l days to be served i f the f ine i s defaulted appears to confuse sentencing philosophy with administrative expediency. The f ine supposedly i s considered the appropriate penalty and the days in default are just one of a number of co l lec t ion measures - 98 -available (Davidson, 1965). In practice, however, the courts are imposing what often amounts to an alternative sentence of imprisonment for the orig i n a l fine (Hickey and Rubin, 1971). Continued confusion about the role of imprisonment when a fined offender defaults on payment is exacerbated when some j u r i s d i c t i o n s , but not a l l , allow the offender to buy his or her way out of prison which i s in essence treating imprisonment as a c o l l e c t i o n procedure, while other j u r i s d i c t i o n s deem the fine paid at the expiry of the j a i l term, and yet others, such as Sweden, do not release offenders regardless of whether they have the means to pay once committed to prison. Imprisonment therefore i s seen to be both an alternative penalty to be chosen by the offender as in Canada, a c o l l e c t i o n t o o l , and an equivalent exchange of fine dollars for j a i l days (Columbia Law Review, 1971:1290). A concern, expressed by those who administer fine enforcement, i s that without any threat of imprisonment, even people who can afford to pay would not do so. I t i s postulated that i f the threat of imprisonment is removed, the number of defaulters would increase since there i s evidence that many only pay once the threat i s wielded and the offender i s on the way to j a i l (Justice of the Peace, 1979). The v a l i d i t y and g e n e r a l i z a b i l i t y of this concern i s suspect. Information i s lacking on why people feel obliged to pay fines or t h e i r attitudes toward payment with or without the threat of imprisonment. In B.C., where imprisonment for non-payment of most provincial statute offences i s not enabled by l e g i s l a t i o n , i t i s estimated conservatively by criminal j u s t i c e system o f f i c i a l s that at least 70% of fines are paid - 99 -with JTO enforcement of any kind required and an additional 20% with enforcement measures undertaken, the remaining unpaid fines are either outstanding or written o f f . These fines may be f a i r l y small in size (e.g., on average $35), but these findings are suggestive of the d i s t i n c t p o s s i b i l i t y that payment of a substantial proportion of the fines imposed w i l l be forthcoming in the absence of the threat of imprisonment. The payment rate w i l l vary, of course, depending in part on the type of offence for which the fine was o r i g i n a l l y imposed and the type of offender fined. When fine defaulters are j a i l e d , the argument that fines avoid imprisonment becomes questionable, p a r t i c u l a r l y in j u r i s d i c t i o n s where some 12 to 60% of the imprisoned are fine defaulters. J a i l becomes an equivalent to the fine when in fa c t this equation was not intended. Both serve deterrent purposes, but the s i m i l a r i t y i s to end there. For those who t r u l y cannot pay under any scheme the state's deterrent i n t e r e s t can be upheld by other sanctions (e.g., the supended sentence, see Bottoms, 1981). Accordingly, i t is suggested that t r i a l judges should "... be encouraged to be f a i r and sensible in t h e i r use of fines so that indigents can avoid imprisonment whenever a moneyed individual would be able to do so" (Columbia Law Review, 1971:1308). It i s argued further that: The state has more to gain than to lose i f i t cannot, or does not, imprison on default of f i n e . It accomplishes neither deterrence nor any other legitimate penal goal by imprisonment, and gains only the additional expense of maintaining the man in prison, and perhaps the s a t i s f a c t i o n of having penalized the man in some way, whether or not i t does any good (Hickey and Rubin, 1971:427-428). - 100 -As a r e s u l t of the many problems associated with imprisonment for non-payment of f i n e s , Wilkins (1979) recommends this be replaced by a criminal offence for p e r s i s t e n t l y refusing or neglecting to pay a fine when one has the means to do so. I t has also been suggested that the e f f e c t of non-payment should be determined only after the fine i s in default (Hickey and Rubin, 1971). In this way the sanction i s treated l i k e any other sanction, i f the fine i s not f u l f i l l e d , the breach comes before the courts again and a new sentence i s imposed. This approach which would prohibit the j u d i c i a r y from specifying default days has been recommended in Canada as a simple means of reducing the rate of imprisonment for fine defaulters (Law Reform Commission, 1974a). Imprisonment becomes relegated to i t s proper role in the case of the fin e - as the l a s t of a number of enforcement measures invoked i f the defendant has the means to pay, but w i l f u l l y disobeys the o r i g i n a l sanction - the f i n e . Another suggestion intended to a l l e v i a t e c r i t i c i s m of the f i n e when the poor are imprisoned in default i s the implementation of a fine option scheme. 2. Fine Options The fine option program has become of increasing i n t e r e s t to j u s t i c e system administrators. The option i s made available to persons unable or unwilling to pay t h e i r fines and may be offered at the post-default/pre- or post-incarceration stage or less often at the pre-default/post-disposition stage. Fine option programs are seen as a means to prevent disruption in the l i v e s of defaulters, a l l e v i a t e s t r a i n on correctional f a c i l i t i e s , and generally are seen as a step towards - 101 -equal j u s t i c e . Defaulters are able to perform work for a minimum wage which they receive in the form of cash payments turned over to the courts or a voucher submitted to the court clerk as proof of payment of the f i n e . Saskatchewan and Alberta, two provinces of Canada, are the only known j u r i s d i c t i o n s which have introduced such a scheme. Alberta implemented a fine option program i n 1976 which i s offered at the pre- and post-incarceration phase to fine defaulters. These programs were introduced after i t was found that 40% of admissions to Alberta i n s t i t u t i o n s were for non-payment of fines ranging from $10 to $3,600 and averaging $172. Sentences in default ranged from two days to two years with an average of 23 days served in default (Alberta S o l i c i t o r General, 1977). The options available include paid employment and cash payments of fines; community work and c r e d i t vouchers; treatment to a s s i s t drug, and alcohol related offenders; or a combination of the three. In Calgary, Alberta, a fine option program for incarcerated defaulters i s offered to those meeting the following e l i g i b i l i t y c r i t e r i a : 1. expressed int e r e s t in the program, 2. default time exceeds f i v e days, 3. no outstanding warrants for arrest, 4. no security r i s k , and 5. no history of violent offences (Weber, 1977). The offenders are given temporary absences from prison and are able to work off thei r fines at a minimum wage rate doing community service work or at t h e i r own job, or a combination of the two. - 102 -In a study of 351 defaulters who expressed i n t e r e s t in the Calgary program, 235 (67%) were accepted and 218 (92%) of those accepted successfully completed the program. It was estimated that the cost of administering the program was minimal (although no actual estimate was provided) while i t would have cost $85,000 to contain these defaulters in j a i l . The program generated 4,609 hours of community work and was responsible for $9,490 of fines being paid by offenders (Weber, 1977). These findings are taken as evidence that not only i s the fine option program c o s t - e f f e c t i v e but more in keeping with the aim of the fine - to avoid imprisonment of offenders. The Saskatchewan court system found the incidence of default, at between'1 to 2% of a l l the fines imposed, n e g l i g i b l e (Heath, 1979). The corrections system in this province, on the other hand, were reporting that 50% or more of a l l t h e i r admissions to i n s t i t u t i o n s i n some years were comprised of fine defaulters. It was found also that up to 75% of the j a i l e d male defaulters were of Native Indian descent and 98% of the female, fine default population were Native Indians. Moreover, the majority of a l l defaulters were serving less than 15 days for r e l a t i v e l y small f i n e s . This situation was considered unacceptable and i t was f e l t the best way to deal with defaulters unable or unwilling to pay t h e i r fines was through a fine option program. The program began in 1975 and by 1979 had been extended to eight c i t i e s , 37 towns, and 44 Indian Reserves. The work performed i s to be of actual benefit to the community without competing with unions or e x i s t i n g employees in the community. Credit for community service work - 103 -i s equivalent to the minimum wage regardless of the s k i l l s of the offender or the nature of the work performed. I t i s estimated that a $50 f i n e that might carry with i t two weeks in j a i l for non-payment would require about 20 hours of community work at a minimum wage of $2.50 in 1979. P a r t i c i p a t i o n in the program i s voluntary and i t i s not used as a vehicle to impose treatment. Community organizations administer the programs and receive a fee-for-service for each placement (Heath, 1979). The program o r i g i n a l l y was i n i t i a t e d at the default stage s p e c i f i c a l l y so as not to a f f e c t fine revenue. Before a warrant of committal was issued, a form l e t t e r advised the offender that he or she was e l i g i b l e for the program. This was seen as a cumbersome process by the court s t a f f who had to refer defaulters to the agency. Therefore the a v a i l a b i l i t y of the fine option i s now communicated, at the time of sentence, to a l l fined offenders given time to pay t h e i r f i n e . ( I t should be noted that the proportion of fined offenders not given time to pay t h e i r fines i s quite high in Saskatchewan. In 1978, 34% of the defaulters incarcerated had no time to pay the fine and therefore would not have been e l i g i b l e for the fine option.) I t i s the offender's r e s p o n s i b i l i t y to choose the method for s e t t l i n g the fine and they must present the "Notice of Fine" to an agent by the default date. The court i s then advised of t h i s and the expected date of completion of the fine option becomes the new default date. This a l t e r a t i o n in the administration of the program has not changed the overall p r o f i l e of participants which includes a small proportion who - 104 -could afford to pay but may even have served the j a i l term i f they f e l t a p r i n c i p l e was involved in t h e i r refusal to pay (Heath, 1979). There i s s t i l l some concern over loss of fine revenue although Heath (1979) noted i t i s not clear whether i t i s a v a l i d concern. In 1977/78, 11 m i l l i o n dollars in fine revenues was collected while $400,000 or 3.5% of the t o t al revenues were se t t l e d by the Fine Option Program and $24,000 worth of fines were written o f f . Heath also points out that some defaulters are s t i l l being j a i l e d and the fine option program i s obviously only a p a r t i a l solution to this problem. A fine option project was i n t i t a t e d on Vancouver Island, B.C., during 1979 and 1980. There were, however, problems which stymied the support and use of the option, not the least of which was j u d i c i a l opinion that the program interfered with the sentence of the court and had no basis in l e g i s l a t i o n . In the proposed amendments to the Criminal  Code of Canada ( B i l l C-19), section 650 of the Code w i l l provide for a fi n e option a l t e r n a t i v e which w i l l e f f e c t i v e l y remove this type of opposition. C. SUMMARY AND CONCLUSIONS The majority of offenders w i l l pay thei r fines either on time, or more or less on time, with the use of c i v i l enforcement procedures which f a l l short of imprisonment. This i s as l i k e l y to be due to the j u d i c i a r y s e l e c t i n g offenders who are the best r i s k s for a fine as due to the e f f i c i e n c y of the fine per se. Vagrancy or drunkenness continue to be the types of offences for which a fine ultimately leads to - 105 -imprisonment as does the offender who has a history of prior convictions ( D e l l , 1974; Law Reform Commission, 1974a; Heath, 1979). At the same time, i t i s generally known that those alcoholic offenders committed to prison for non-payment of fines present a special social problem that no f i n e or similar sanction can respond to in the f i r s t place (Softley, 1973). Payment demanded forthwith i s s t i l l a practice of the courts in many j u r i s d i c t i o n s and i t i s often imposed on the very people with no funds, e.g., transients of no fixed address, who then end up in j a i l ( Softley, 1978; Sparks, 1973). Fine defaulters who eventually are imprisoned can be categorized as follows: 1. the p r i n c i p l e d defaulter who w i l f u l l y refuses to pay on the grounds of conscience, 2. the c a l c u l a t i n g defaulter who w i l f u l l y refuses to pay because deprivation of l i b e r t y i s preferable to payment of the f i n e , 3. the negligent defaulter who had the means to pay but i s a poor money manager or i s as reluctant to pay a fine as to pay taxes or hydro b i l l s , and 4. the indigent defaulter who simply i s unable to pay (Justice of the Peace, 1979; Morgan and Bowles, 1981). It i s the l a s t group in p a r t i c u l a r who, when imprisoned, c a l l into question the e f f i c i e n c y of the fine and the fairness and j u s t i c e of the system. The legitimacy of the state's control function i s at issue when i t i s seen to be perpetuating "debtors prisons", a concept discarded in c i v i l law as unjust, but not so in criminal law (see Chapter 8). The costs associated with the enforcement of fines increase as enforcement increases. This becomes a f i n a n c i a l problem to the j u s t i c e system professionals who have limited resources to administer the system. The more vigorous the enforcement, the less c o s t - e f f i c i e n t the - 106 -f i n e . It i s for this reason that outstanding fines w i l l eventually be written off or f i n e option schemes w i l l be supported. Since the cost of enforcing payment l i k e l y w i l l exceed the revenue co l l e c t e d , p a r t i c u l a r l y i f offenders are j a i l e d , and since non-enforcement may diminish the c r e d i b i l i t y of the fine and the system which imposes i t , the enforcement of fines c l e a r l y i s a pressing problem i n the administration of criminal j u s t i c e . The effectiveness of a sanction can be measured i n d i r e c t l y by whether i t was f u l f i l l e d . This i s p a r t i c u l a r l y the case with a monetary penalty and far less so with custodial and community-based surveillance sentences where s u f f i c i e n t control i s exercised over offenders to minimize the rate of escapes and breaches of probation. For the f i n e , however, the material evidence of i t s f u l f i l l m e n t in the form of money i s a r e q u i s i t e and i t i s t h i s which presents problems to the indigent and to the j u s t i c e system. In this sense only a c o l l e c t e d fine can be regarded as an e f f e c t i v e sanction (Carter and Cole, 1979). Effectiveness i s assessed more d i r e c t l y , however, by determining whether the sanction deters offenders and the general public from committing offences either again, or in the f i r s t instance. This broader topic of the effectiveness of the fine i s addressed in the next chapter. - 107 -CHAPTER 6 THE EFFECTIVENESS OF THE FINE The effectiveness of a penal sanction i s usually measured by the following: 1. recidivism: the percentage of offenders who re-offend a f t e r they have been apprehended and sentenced for an offence. Indirect measures of recidivism include enhanced self-image, vocational placement, and improved inter-personal re l a t i o n s ; the argument being that these types of improvements lead to non-criminal behavior (Martinson, 1974). 2. offender attitudes: l i k e the i n d i r e c t measures of recidivism, the attitudes held by offenders about the sentence they receive are considered a means of assessing future behavior (Martinson, 1974). 3. public attitudes: the public's perception of the sa t i s f a c t o r i n e s s of a sanction assures acceptance of the j u s t i c e system's actions. A balancing of demands for law and order with humane and f a i r sentences i s necessary to achieve the community's consensus (Blumstein, 1982). There are other means to assess the effectiveness of a sanction. The e f f i c i e n c y and economy with which a sanction can be administered are c r i t i c a l measures of the sanction's u t i l i t y to the bureaucracy and to the government in general. A sentence which i s d i f f i c u l t or costly to implement detracts from i t s p o t e n t i a l . This chapter, however, deals only with the effectiveness of the fine in terms of available research l i t e r a t u r e on recidivism and offenders' attitudes. No published research has been conducted on public attitudes, although a discussion of t h i s measure w i l l be presented u t i l i z i n g a recent survey's unpublished results on the attitudes of the public toward drinking and driving offences in B r i t i s h Columbia. The preceding chapter was devoted - 108 -to the issue of the e f f i c i e n c y of the fine in terms of completion rates and enforcement and the next chapter w i l l examine the economy of the f i n e as a social control technique. A. RECIDIVISM Probably the greatest controversy over the effectiveness of the fine compared with other sanctions in reducing or preventing recidivism centered around a Home O f f i c e study conducted in England which concluded, on the basis of a controlled, quasi-experiment, that imprisonment was the least e f f e c t i v e sanction and fines the most e f f e c t i v e in preventing recidivism. Those that supported the conclusions of The Sentence of the Court study, completed in the late 1960's, argued that "hard" evidence was provided to warrant the conclusions. Others, such as Bottoms (1973), c r i t i c i z e d the methods employed and the claims made about the effectiveness of the f i n e . Bottoms (1973) argued that caution ought to be exercised in accepting the study's conclusions for the following reasons: 1. Those j a i l e d may be worse risks than those discharged or fined, thus the l a t t e r sanctions are more successful because of t h e i r better intake. The type of person most l i k e l y fined i s worth f i n i n g , i . e . , they have jobs and fixed addresses, while those least l i k e l y to be fined are most l i k e l y to re-offend. 2. Even though one can control and match subjects to ensure comparable populations are subject to d i f f e r e n t sanctions, whether the variables matched are appropriate and exhaustive i s questionable. The usual factors i d e n t i f i e d for matching include the age of the offender, the type of current offence, and the number of previous convictions, but there may be more subtle factors which a f f e c t recidivism which are not controlled for, e.g., family background, employment history, and gravity of offence. - 109 -Bottoms concluded that these c r i t i c i s m s of the fine's effectiveness in terms of recidivism need not imply that the f i n e cannot be advocated on the basis of other grounds, such as economy and humaneness. After c r i t i c i s m of The Sentence of the Court's findings that the f i n e does not prevent recidivism any more or less than other sanctions, l a t e r work by Softley (1978) and Albrecht and Johnson (1980) neverthe-less has demonstrated that fines may s t i l l be more e f f e c t i v e than Bottoms (1973) and others believe (Carter and Cole, 1979). Softley's (1978) analysis of a national sample of 3,240 offenders convicted summarily for burglarly, theft, criminal damage, wounding and assault revealed that 34.2% of the sample were reconvicted within two years. Of those discharged, 31.8% were reconvicted, of those placed on probation, 47.2% were reconvicted, and of those who received suspended sentences, 49.5% recidivated. The lowest reconviction rate was associated with fines -only 29 per cent of the offenders who were fined were reconvicted within 2 years - and the highest reconvic-tion rate (65 per cent) was associated with imprisonment (Softley, 1978:7). On the face of i t t h i s would imply the f i n e i s the most e f f e c t i v e deterrent. However, as Softley noted, the question i s whether offenders sentenced to d i f f e r e n t dispositions are otherwise comparable. Softley was able to assess the relationship of the number of previous convictions and the age of the offender to reconviction rates. He found reconviction to be highly correlated with the number of prior convictions (the percentage of f i r s t offenders reconvicted was 17%; 32% for those with one or two prior convictions; and 60% f o r those with three or more pr i o r convictions). He also found that f i r s t offenders and those with one or two prior convictions who were 17 to 20 years of - 110 -age were s i g n i f i c a n t l y more l i k e l y to be reconvicted than those 21 years of age or older. Due to the small sample s i z e , Softley then compared the reconviction rate of those fined versus those who received any other sanction c o n t r o l l i n g for the e f f e c t s of p r i o r convictions and age, and concluded that offenders fined, regardless of t h e i r age or prior criminal history, had a lower, a l b e i t not s t a t i s t i c a l l y s i g n i f i c a n t (pCOl), rate of reconviction than the group sentenced to alternative di s p o s i t i o n s , with the exception of fined offenders between 17 and 20 years of age with three or more prior convictions. It was not possible i n Softley's (1978) study to control for other f a c t o r s , such as the employment status of offenders. Softley noted, however, that in the total sample unemployed offenders were more l i k e l y to be reconvicted than employed offenders (41% versus 30%), and suggests that although inconclusive due to the small sample s i z e , reconviction rates were lower even for unemployed offenders who were fined. Softley concluded by cautioning: However, i t i s by no means certain whether the apparent superiority of the fine in terms of reconviction i s an e f f e c t of the fine i t s e l f or of unknown factors (Softley, 1978:9). The fact that unemployed offenders and those with several previous convictions were less likely- to be fined in the f i r s t place suggests that the j u d i c i a r y are able to select for f i n i n g the better r i s k s . Albrecht and Johnson (1980) analysed 1972 data on 1,883 cases heard before the courts in Germany to compare the effectiveness of f i n e s , probation, and short term j a i l sentences over a f i v e year period. They found that the amount of the fine was not i n f l u e n t i a l in determining reconviction rates. T r a f f i c offenders who received day - I l l -f i n e s were not superior to short term j a i l sentences, but no less e f f e c t i v e in terms of preventing recidivism. F i r s t offenders fined were less l i k e l y to re-offend than those j a i l e d . The group of offenders fined for petty property and theft offences had lower reconviction rates than those who received other sanctions when co n t r o l l i n g for previous offence and type of offence. The authors concluded that fines were by no means the least e f f e c t i v e sanction. G i l l e s p i e (1980) reviewed Albrecht's and Johnson's study of reconviction rates of f i r s t offenders who were fined (16%) versus those imprisoned (50%) and concluded i t provides some support for f i n i n g although only tentative since no further information was gathered on other c h a r a c t e r i s t i c s of the offenders which may have affected the reconviction rates. In a three-year, controlled study of t r a f f i c offenders in the United States i t was found that educational dispositions such as having to attend drivers' school were more e f f e c t i v e than the fine in c o n t r o l l i n g the rate of recidivism (Hickey and Rubin, 1971:424). This finding i s not completely surprising and supports the contention that sentences should f i t the offence. In a study of public drunkenness i n a skid row d i s t r i c t in the United States i t was found that the fine was a more e f f e c t i v e deterrent than workhouse sentences. This study speculated that the threat of f i n a n c i a l loss was more i n f l u e n t i a l than that of incarceration in preventing reconviction. However, s i m i l a r to the conclusion that drivers' education may be more f i t t i n g for some t r a f f i c offenders, i t i s - 112 -likewise suggested that fines are an i r r e l e v a n t sanction for offenders with alcohol problems who instead should be diverted into medical treatment programs (Hickey and Rubin, 1971:424). Kraus (1974) conducted a f i v e year follow-up of the criminal careers of 65 male juveniles given fines and 65 given probation matching the offenders on age, offence history, and current offence. He found that f i r s t offenders on probation had s i g n i f i c a n t l y higher rates of recidivism than those fined. C r i t e l l i and Crawford (1980) examined 65 court records in 1977 i n a small community i n Texas and found that fines were r e l a t i v e l y i n e f f e c t i v e in c o n t r o l l i n g subsequent crimes for f i r s t offenders compared with other dispositions such as probation, j a i l or a discharge. However, this finding about the effectiveness of the fine should only have been compared with the outcome of no court ordered sanction ( i . e . , a discharge) since the small sample size of those who received a j a i l sentence or a probation order rendered the findings u n r e l i a b l e . Further, there was no means to determine i f those who received fines were comparable to those with no d i s p o s i t i o n . These authors overstate the case against f i n i n g , as the i r research i s inadequate. Studies which compare the rates of recidivism of various sanctions are o f t e r flawed methodologically. In some instances the experimental and control or comparison groups are not comparable having been matched on some, but not a l l of the appropriate c h a r a c t e r i s t i c s which account for variance. Some studies do not have an adequate follow-up time frame - 113 -or sample si z e , others are more process oriented and as a r e s u l t do not meet rigorous methodological c r i t e r i a . Of the available studies, studies which compare recidivism among fi n e s , imprisonment, probation, and suspended sentences, the results are mixed. Some studies report fin e s are no more e f f e c t i v e than other sentences. Other studies report the f i n e i s e f f e c t i v e , p a r t i c u l a r l y for the f i r s t - t i m e offender. B. ATTITUDINAL MEASURES There are two means by which the a t t i t u d i n a l measure of effectiveness can be assessed: 1) the deterrent value of the f i n e , and 2) the attitudes of fined offenders. I t has been argued that the threat of monetary deprivation has limited capacity to deter, depending in part on the nature of the crime. The fine alone may be an e f f e c t i v e deterrent when the prime motive for crime i s monetary and the fine exceeds the gain. We are nevertheless unable to assess i t s general deterrent value, i . e . , the extent to which a fine prevents the commission of offences. The same i s true of imprisonment and indeed of any sanction which aims in part to deter (Davidson, 1965). As a rule, however, a fine i s most e f f i c a c i o u s where the offense i s minor, the offender i s r a t i o n a l , and monetary gain i s at best a secondary motive (Columbia Law Review, 1971:1285). Others argue that the fine can be used more extensively since i t s message i s clear to the general population and to a large component of the offender population with the possible exception of violent, sexual, or drug addicted offenders: - 114 -In s o c i e t i e s as obsessed with money as modern developed countries, where nine out of every ten crimes are crimes against property, surely the neatest most economical penalty consists i n taking money away (Radzinowicz and King, 1979:314). The argument goes that the fine can be considered to have a good deterrent function for the rational offender who wants to maintain his or her standard of l i v i n g and not be deprived of income for the consumption of goods (Thornstedt, 1975). Hickey and Rubin (1971) put forth a s i m i l a r suggestion: ... economic sanctions can have a great e f f e c t in a m a t e r i a l i s t i c culture characterized by property crime and t r a f f i c offences (Hickey and Rubin, 1971:418). On the face of i t , these arguments have some merit. One's daily experience demonstrates the potent deterrent e f f e c t of fines on everyday l i f e . Most people do not park in proscribed places because of the fear of a f i n e . S i m i l a r l y , experience in B.C. with regard to recent seatbelt l e g i s l a t i o n which imposed $25 fines for not wearing a seatbelt, attests to the effectiveness of such sanctions on the motoring habits of the public. Whether or not consensus exists on the need for such l e g i s l a t i o n , vast numbers of drivers and passengers began to "buckle-up" to avoid apprehension and the f i n e . I t i s desirable, but not necessary to require surveys to confirm these facts of daily l i f e . The following describes the limited available l i t e r a t u r e on the impact of a fine on offenders' attitudes and the attitudes of the public in general. 1. Offender Attitudes Some c r i t i c s suggest, since i t only takes a few seconds of an offender's time to write a cheque, that the exchange of "money" i s hypothetical, i . e . , a transfer of numbers from one side of a ledger to - 115 -the other and the loss i s not d i r e c t l y f e l t , therefore i t does l i t t l e i n the way of punishing or deterring an offender ( C r i t e l l i and Crawford, 1980:469). Whether this i s the general perception held by fined offenders i s simply unknown since there i s limited information on the attitudes of fined offenders toward t h e i r sentence. As mentioned, Softley (1978) mailed questionnaires to 83% of his sample of 2,596 fined offenders and received back only 368 completed forms. Although t h i s i s a very poor response rate some of Softley's results are suggestive. When responding to the question of whether they f e l t the amounts of the fines they were levied were f a i r , 59% of the respondents f e l t they had to pay too much, 38% f e l t i t was f a i r , 2% thought i t was too l i t t l e , and 2% had no opinion. Two thirds of the returns from defaulters f e l t the f i n e , not s u r p r i s i n g l y , was too high. These results indicate only that over a half of the respondents were d i s s a t i s f i e d with the amount of the sanction, not necessarily with the f i n e , and given the small response rate (17%) the findings should be treated with caution. In a study which examined the attitudes of offenders toward community service orders in England, Thorvaldson (1978) compared these offenders with others who received a fine or a probation sentence. His purpose was to examine the offenders' perceptions toward t h e i r sentences in l i g h t of the sentence's major theoretical aim, e.g., deterrent or punitive (the f i n e ) , r e h a b i l i t a t i v e (probation), and reparative (community s e r v i c e ) . Thorvaldson conducted a quasi-experiment on a - 116 -sample of males, between 17 and 40 years of age, sentenced for the most part i n Magistrates Court. The fined offenders were selected out of those who were fined£25 or more to avoid cases which involved t r i v i a l offences. This l i m i t a t i o n i n the selection of fined offenders undoubtedly biased his sample since i t i s known that the majority of offenders fined for even more serious cases received fines of under £30 (Softley, 1978), while the average fine in Thorvaldson 1s sample equalled £68.9 (N=42). Thorvaldson 1s results showed, not s u r p r i s i n g l y , given his selection c r i t e r i a , that the fined group was d i f f e r e n t from the other two on the basis of the types of offences for which they were sentenced and the frequency with which fined offenders were sentenced in Crown Court (where cases of a more serious nature are heard). Nevertheless, he goes on to conclude that the fined subjects ranked lowest overall in terms of t h e i r attitudes toward the i r sentence and ... showed a good deal of resentment and sometimes even cynicism, bitterness or anger in t h e i r responses to the sentence (1978:226). I t would appear, that Thorvaldson was predisposed to disfavor the fine i n l i g h t of his suggestion that f i n i n g offenders i s " l i k e treading in a mine-field" (1978:136). This perception that somehow fi n i n g can lead to an explosive s i t u a t i o n among offenders makes l i t t l e sense in l i g h t of the vast numbers of offenders who are fined on a day-to-day basis and who comply by paying t h e i r f i n e s . - 117 -Thorvaldson also believed fined offenders would be more intimidated than those on probation or f u l f i l l i n g a community service order and would feel forced to conform to t h e i r sentence. It i s argued, however, that the payment or non-payment of the f i n e , since i t i s independent of supervisory control, would enable fined offenders to exercise more actual autonomy than, for example, probationers, who are more subject to the control exercised by t h e i r supervisors (Giddens, 1981). Indeed, Thorvaldson provides evidence of this when he reported that more fined offenders refused to cooperate with the study. Although he suggests t h i s implies negativity on the part of fined offenders toward t h e i r sentence, there are alternative explanations which were not explored. The fined offenders were selected from court records with no assistance or mediation by j u s t i c e system s t a f f during the selection process. On the other hand, the probation sample was selected from current f i l e s and the o f f i c e r approached the offenders to inquire whether they would p a r t i c i p a t e . The community service group appears to have been selected from a l i s t of current f i l e s and approached by the author or a supervisor either at the home of the offender, or at the worksite. In both the l a t t e r instances, these groups were s t i l l under court orders and some degree of surveillance was being exercised over t h e i r a c t i v i t i e s while the fined offenders (who may or may not have f u l f i l l e d t h e i r sentence) had much more freedom to refuse to cooperate. This can imply less negativity than the a b i l i t y to chose f r e e l y whether to p a r t i c i p a t e or not; the fined offenders were not a captive group of potential respondents. - 118 -The most that can be said about the attitudes of fined offenders i s that they l i k e l y perceive t h e i r sentence as a form of punishment and may not have " l i k e d " the punishment imposed. This could mean one of two things: either these offenders would avoid further conduct which would expose them to similar unsavory treatment, or the behavior for which they were punished i f not perceived by them as unacceptable, enables them to continue to run into c o n f l i c t with the law. 2. Public Attitudes Public attitudes toward sentences of the courts can be assessed from two perspectives: 1) i s the sanction an acceptable response to offenders as perceived by the law-abiding, and 2) does the sanction deter the general population from engaging in unlawful behavior? Knowledge of the severity of penalties i s a necessary, but not a s u f f i c i e n t condition for the deterrence of crime and the same can be said for the certainty of apprehension (Williams and Gibbs, 1981). However, a p a r t i c u l a r punishment does not necessarily have the same meaning to a l l people. Williams and Gibbs (1981) found that in a sample of respondents in Tucson, Arizona, many residents perceive a $10,000 fi n e as less severe than one year in j a i l , while others find i t more severe. Grasmick and Green (1980) corroborated t h i s finding and stated there i s no reason to believe that individuals assume a penalty i s of equal severity - a $100 fine i s d i f f e r e n t to d i f f e r e n t people for various reasons and people w i l l assess this potential cost against the gains of an i l l e g a l act d i f f e r e n t l y . In other words, determining the deterrent value of a fine depends on more than the impact of the fine on - 119 -the finances of the potential offender. It i s not simply a case of suggesting that a fine may not be a deterrent to those with wealth and a crushing burden to the poor. The only other source of information available on public attitudes toward the fine comes for an unpublished, randomized opinion poll conducted in February of 1984 on public attitudes toward drinking and driving in B.C. This poll found that 75% of the respondents f e l t "harsher" penalties should be imposed on drinking dr i v e r s . For a f i r s t or second offence of drinking and driving, two-thirds of the respondents suggested that the appropriate sentence would be a licence suspension in a l l but the most serious cases where an accident occurred involving injury or death. Over a t h i r d also f e l t fines were an appropriate sanction in most cases of drinking and driving although this proportion decreased to 25% in cases involving an accident and 10% in cases causing injury or death. J a i l terms were not frequently mentioned for f i r s t offenders (less than 10%) or second offenders (24%), when in f a c t current l e g i s l a t i o n provides for t h i s , but increased to 55% i n the case of an injury or death causing accident. When asked what the amount of a fine should be, the average for a f i r s t offence was $850, a second offence was $1,200, and in cases involving injury or death, the fine was suggested to be set at $2,800. These fines are f a r higher than the average fines (estimated at $400) ac t u a l l y levied on drinking drivers in B.C. although they correspond somewhat to the l e g i s l a t e d maximum of $2,000. - 120 -The results of this survey indicate that the public i s not completely aware of existing penalties for drinking and dr i v i n g . This i s evident when i t i s suggested "harsher" penalties ought to be imposed and the penalties recommended are in f a c t less severe than those currently available in existing l e g i s l a t i o n . There i s support for the continued use of the fine except, as suspected, in cases causing injury or death where monetary penalties are not perceived as an appropriate response to crimes of violence. The d o l l a r value of the fine i s the one instance where public opinion d i f f e r s from the practice of the courts. The average fine currently imposed for a l l drinking and driving offences i s less than half what the public suggests i t should be set at for f i r s t offenders only. C. SUMMARY AND CONCLUSIONS The methodological weaknesses of the available studies on the effectiveness of sanctions render inconclusive the evidence on whether the fine i s as or more e f f e c t i v e then other sanctions in reducing recidivism. In some instances (e.g., drug and alcohol abusers and career criminals) the fine i s inappropriate i f the aim i s to reduce recidivism, but so too are the al t e r n a t i v e s . In other cases, reconviction rates of fined offenders are lower than those of offenders who were on probation or in j a i l , p a r t i c u l a r l y i f the offender had no p r i o r convictions. The success of one sanction over another may simply be the r e s u l t of better r i s k s receiving sanctions such as the f i n e . It i s for this reason that Bottoms concluded: - 121 -I t i s now well known that in general the penalty which i s applied to a p a r t i c u l a r offender appears to make l i t t l e or no difference to the subsequent l i k e l i h o o d of reconviction of that offender (Bottoms, 1981:18). This pessimism may not be e n t i r e l y founded since there i s some evidence that the l e a s t intervention ( i . e . , a fine versus probation or j a i l ) may be more appropriate for offenders not committed to a criminal career and may in f a c t prevent future offences (Albrecht and Johnson, 1980; Kraus, 1974; Softley, 1978). L i t t l e i s known of offenders' attitudes toward the f i n e . They appear not to think highly of the fine but since the aim of the fine i s to punish and deter, this i s not necessarily a negative e f f e c t . Public attitudes toward the fine are generally unknown as well. Common sense dictates that the l i k e l i h o o d of a fine for minor transgressions such as parking in prohibited places i n h i b i t s the vast majority of the public, most of the time. There i s also evidence that the fine i s perceived by at least one-third of the public in B.C. as an acceptable sanction for more serious offences such as drinking and d r i v i n g . However, t h i s acceptance appears to be t i e d to the size of the fine which must be large enough to be seen as a harsh response. The j u s t i c e system c l e a r l y has an interest in the effectiveness of i t s sanctions. If i t i s generally perceived that the "criminal element" i s not deterred by the threat of apprehension and punishment the system can be c a l l e d into question by the law-abiding. This serves to threaten the legitimacy of the state and i t s a b i l i t y to perform i t s control function. The r e s u l t i s pressure from lobby groups to "get tough" and - 122 -"crack down" on crime. Whether the fine would be perceived as a "tough" enough measure would then depend not only on i t s size but the type of crime of concern to the public and, hence, to the system. The f i n e may, of course, be superior to existing sentencing alternatives for reasons other than effectiveness or harshness: Sceptical as I am of the apparent r e d u c t i v i s t e f f i c a c y of the f i n e , I would on humanitarian grounds l i k e to see i t used more often in place of short sentences of imprisonment (Bottoms, 1973:549). In a s i m i l a r vein, the following conclusion about sentencing practices was reached by the Law Reform Commission of Canada: If effectiveness cannot be demonstrated, then at l e a s t j u s t i c e and fairness should be our goals (Law Reform Commission, 1974b:62). The topic of the fairness and j u s t i c e of the fine i s addressed further in Chapter 8. F i r s t , however, an examination of an ad d i t i o n a l , equally important, reason why the fine may be considered superior to other sanctions - the economy of the f i n e - i s presented in the following chapter. - 123 -CHAPTER 7 THE ECONOMY AND LEGITIMACY OF SOCIAL CONTROL A. SOCIAL CONTROL AND LEGITIMACY The most e f f e c t i v e social control in any society i s s e l f -regulation, derived from cultural t r a d i t i o n s and moral values imparted through the family, the community, and the church. With the fragmentation and weakening of these t r a d i t i o n a l methods of control and ass i m i l a t i o n , the state increases i t s role in the regulation and management of deviant populations and the care of dependents (Cohen, 1979; Spitzer, 1977). These e f f o r t s on the part of state i n s t i t u t i o n s to minimize behavior defined as disruptive and costly to society, and to maximize behavior consistent with the value system of society, can be defined as the social control functions of the state. Black (1976) defines the social control functions which have been transferred from the organs of c i v i l society to the organs of p o l i t i c a l society as: ... the normative aspect of social l i f e , or the d e f i n i t i o n of deviant behavior and the response to i t , such as prohibitions, accusations, punishment, and compensation (1976:2). Black goes on to i d e n t i f y the dominant styles of social control exercised by p o l i t i c a l society: 1. penal social control: the state i n i t i a t e s action against behavior which i s prohibited; g u i l t i s assessed and the deviant, as offender, i s punished, 2. compensatory social control: the victim i n i t i a t e s action due to behavior which i s non-obligatory; debts are assessed and the deviant, as debtor, compensates the victim, - 124 -3. therapeutic social control: due to behavior which does not conform to standards of normality, the deviant or others i n i t i a t e action to assess the deviant's needs, the deviant, as a victim i s provided with help, and 4. c o n c i l i a t o r y social control: when disharmony occurs disputants i n i t i a t e action to assess the c o n f l i c t and reach a resolution. Black's "penal social control" typology i s of most concern here. It i s the state as represented by the police and criminal j u s t i c e system which has a monopoly of the legitimate means of penal social control and coercion in society. Compensatory social control, as defined by Black (1976) i s of i n d i r e c t relevance since i t encompasses forms of c i v i l dispute resolution such as compensation to victims of crime. Only the state has the r i g h t to r e s t r i c t l i b e r t y . To retain some level of freedom in society, however, the state's authority to intervene has i t s e l f to be li m i t e d . In the case of criminal deviance, a l i m i t a t i o n i s that the system comes into play only af t e r a criminal act that offends against a law occurs. A second l i m i t a t i o n i s due process (legal procedural rules and practices) which ensures that an individual accused of committing a crime and subject to state-imposed sanctions w i l l be treated without prejudice. The adherence to these li m i t a t i o n s to the exercise of power by the state are essential means of ensuring the legitimacy of the state. Law as exercised by the state must display some independence from gross manipulation and appear j u s t . Law or the legal form as defined by Balbus (1977) and others cannot do this without "... upholding i t s own l o g i c and c r i t e r i a of equity; indeed, on occasion, by actually being just" (Thompson, 1975:263, author's own emphasis). As Thompson explains: - 125 -I f the law i s evidently p a r t i a l and unjust, then i t w i l l mask nothing, l e g i t i m i z e nothing, contribute nothing to any class's hegemony (1975:263). Thus when the state attempts to control undesirable, criminal behavior i t must not only ensure public disapproval of the behavior defined as criminal but choose a sanction to be imposed and an agent to enforce i t in keeping with what the public would perceive as acceptable responses to such behavior (Polinsky, 1980). What distinguishes c i v i l from criminal law i s the conviction of the defendant - the judgment of g u i l t and the community's condemnation of the behavior. Sanctions must support and supplement this conviction. It i s this d i s t i n c t i o n which Offe (1972) and to a lesser degree, Balbus (1977) overlook in t h e i r analyses of the legal form as a p a r a l l e l of the commodity form. The following section discusses an important, but too often unaddressed aspect of state social control, surveillance and the sanctioning process (Giddens, 1981). 1. Surveillance The systematic monitoring of a person's whereabouts, a c t i v i t i e s , and personal data is defined as surveillance and the purpose of surveillance i s social control (Piven and Cloward, 1971). Surveillance can be coercive and intrusive and to t h i s extent i t can be defined as a form of penal social control. Surveillance can also be subtle. The main intent of surveillance is to monitor compliance with standards of behavior. Thus i t occurs i n , for example, the work place and - 126 -educational settings as much as in and by the j u s t i c e system through ordinary and extraordinary legal process. Surveillance b a s i c a l l y involves two a c t i v i t i e s "... the c o l l a t i o n of information relevant to state control of the conduct of i t s subject population, and the d i r e c t supervision of that conduct" (Giddens, 1981:5). The degree of surveillance exercised by a j a i l sentence i s both coercive and i n t r u s i v e . For a certain length of time an offender i s wholly under the control of the state. A parole or probation order may be considered less intrusive to the extent that the offender only reports to a supervisor, on a weekly or a monthly basis, those a c t i v i t i e s that have or have not been undertaken in the absence of actual s u r v e i l l a n c e . However, probation orders and parole, which disperse social control into the community, often are of longer duration; the conditions (e.g., no alcohol, and r e s t r i c t e d hours and movements in geographical locations) t y p i c a l l y are d i f f i c u l t to abide by in l i g h t of what one "normally" does in society; and, for these reasons, some offenders interviewed in the past have expressed a preference for j a i l sentences to mandatory supervision in the community. Considering the degree of control exercised over offenders' movements and to some extent even over t h e i r thought processes when they are subject to sanctions such as j a i l and probation, the f i n e , e s p e c i a l l y i f paid forthwith, exercises the least control over the offender's behavior and attitudes. Upon payment of the f i n e , the sanction i s s a t i s f i e d and coercive social control ends. Those given time to pay l i k e l y feel subject to the exercise of control, but i t i s - 127 -less over t h e i r behavior or attitudes than i t i s over t h e i r monetary state of a f f a i r s and how t h i s affects t h e i r behavior or attitudes. Thus, for those who can manage to pay on time in the absence of l e t t e r s of reminder and warnings, the degree of control i s limited. However, i t i s that group of fined offenders who cannot pay the fine who ultimately w i l l experience the equivalent amount of control as those imprisoned at the outset. For those w i l l f u l l y refusing to pay, the relationship between the c o n t r o l l e r and the controlled i s even more apparent (Giddens, 1981). Refusal to pay the f i n e , as a means of asserting one's power of non-compliance with state authority, and of challenging the e f f i c i e n c y of the control mechanisms, i s far more feas i b l e for the fined offender. 2. Legitimacy Jus t i c e system professionals are under pressure from members of the public to e s t a b l i s h responses to offenders which are acceptable to a wide variety of i n t e r e s t s . Accordingly, one real deterrent to the increased use of fines may be the public's attitude that a lack of surveillance or of r e h a b i l i t a t i o n i s unacceptable. Jobson (1970) argues that the extension of fines rather than a r e s t r i c t i o n of t h e i r use would be appropriate in Canada. However, he recognizes that the community's sense of j u s t i c e dictates, in no small part, whether the fine w i l l be used or whether i t depreciates the seriousness of the offence. Public opinion i s elusive. Nevertheless, policy makers and l e g i s l a t o r s must be aligned with public opinion. To meet i t s objectives - 128 -the criminal j u s t i c e system and the law must enjoy public respect and support. There are two aspects to the continuance of the state's legitimacy in terms of penal social control: 1) whether the public condones the sanctions imposed by the system, and 2) the cost of supporting penal social control and the degree to which state expenditure in t h i s area i s seen to d i v e r t funds from other state subsidized functions such as social welfare and unemployment benefits. B. THE ECONOMY OF SOCIAL CONTROL The f i s c a l aspect of criminal j u s t i c e policy i s as important a consideration from the perspective of government o f f i c i a l s as concerns about the effectiveness of crime control and the s a t i s f a c t i o n of the public toward the state's capacity to control deviant behavior. F i s c a l l i m i t a t i o n s which are more evident in the 1980's than ever before, have resulted i n a re-assessment of the t r a d i t i o n a l methods of social control exercised by the criminal j u s t i c e system. The rationale i s that "crime control p o l i c i e s should be "cost conscious" - defining social cost in as wide a sense as possible" ( A n t i l l a and Tornudd, 1980:49). Spitzer (1977) goes even further by arguing the state must search for economical control operations which w i l l not jeopardize capital accumulation. The cost of i n s t i t u t i o n a l i z a t i o n - a standard form of control by segregation - i s high, and continuing reliance on t h i s sanction has become p r o h i b i t i v e . Available, less expensive, alternatives are decarceration, the release of offenders to community based f a c i l i t i e s , and the increased use of probation. These alternatives can reduce the - 129 -f i s c a l burden without the danger of complete release. Public outcries against government for not protecting society can serve to threaten the legitimacy of the state. Other non-custodial sentences such as the fine and the suspended sentence exercise the least social control, and would appear to be the le a s t expensive. The fine has the added a t t r a c t i o n of being f a m i l i a r to the general public as a long standing approach to i l l e g a l conduct. Most authors who discuss the fine c e r t a i n l y argue the point that the fine i s the least costly penal sanction ( G i l l e s p i e , 1980; Hickey and Rubin, 1971; Kraus, 1974; Radzinowicz and King, 1979). None, however, ac t u a l l y evaluate the costs of a fine in comparison with other sanctions. 1. The Cost of Fining An hypothetical example of the cost of imprisonment, probation, and a fin e for an impaired driving offence i l l u s t r a t e s the cost difference. An impaired driver in B.C. may receive on a f i r s t offence up to six months in j a i l or a fine of up to $2,000 and not less than $50 or both. In some cases, a probation order may be imposed which could range from twelve to twenty-four months in duration. It would, however, be unusual for a f i r s t offender to receive the maximum j a i l sentence, f i n e , or probation order. Based on conversations with j u s t i c e system personnel i t i s estimated that the average fine i n 1984 would be $500, the j a i l sentence one month in duration and the probation order, one year in duration. These estimates are used for the sake of comparison of costs. - 130 -The criminal j u s t i c e system costs associated with the detection, apprehension, and court processing of impaired drivers are s i m i l a r . The costs of administering the various sentences d i f f e r . The offender who receives a one month j a i l sentence with one-third of the time off in remission w i l l serve approximately 20 days at a cost of $77 per day (1983/84 per diem costs which include the cost of f a c i l i t i e s , s t a f f and overhead) f o r a total cost of $1,540. The cost of a one year probation order w i l l vary widely depending on the degree of supervision (e.g., weekly or monthly sessions) and whether additional program attendance i s required (e.g., alcohol counselling). I t i s estimated that at a bare minimum i t costs $1.30 per day for each day a probationer i s on an o f f i c e r ' s caseload for a total cost of $475 per year. The cost of a f i n e involves court s t a f f time expended in administering the fine's payment. If the fi n e i s paid on time the cost i s less than $10. If the f i n e i s not paid on time the continued cost of enforcement measures, up to and including the police serving a warrant of committal and the offender serving, for example, two weeks in j a i l i s estimated at $900 ($130 to .process paper and serve the offender with the warrant of committal and $770 or 10 days in j a i l at $77 per day). It i s clear from the above that the cost of a fine paid in f u l l i s far less than the cost of a j a i l sentence or a probation order. J a i l , not s u r p r i s i n g l y , i s the most costly and may also include other hidden costs such as the support of the offender's family, although t h i s cost may be assumed in advance by the state through social welfare. The cost of probation i s one-third the cost of j a i l i f the supervision and - 131 -additional programming i s limited. The cost of a f i n e i s minimal only i f the c a l c u l a t i o n f a l l s short of imprisonment for default. If i t does not, the cost can be almost twice as much as probation and two-thirds the cost of a d i r e c t j a i l sentence of one month. Due to the high volume of fines and the f a c t that at least 70% of the offenders w i l l pay t h e i r fines without enforcement of any kind, the total cost of administering fines i s far less than would be the cost of administering j a i l or probation sentences for these offences. The only sentence which may be even less costly to administer i s the suspended sentence (Bottoms, 1981). Beyond the f a c t that the f i n e i s an inexpensive sanction, i t s capacity to generate state revenue distinguishes the fine from a l l other sanctions. 2. Fine Revenue In 1977/78, 114.7 m i l l i o n dollars was received in fine revenue throughout Canada (National Task Force, 1978). This sum excludes fines paid d i r e c t l y to the federal or municipal governments. In the same year, in England 35 m i l l i o n pounds in fines were ordered (Carter and Cole, 1979). Morgan and Bowles (1981) argue, as a r e s u l t of the revenue generating nature of the f i n e , that there are manifest economic benefits to the f i n e . It can produce a net p r o f i t for the criminal j u s t i c e system while a l l other sanctions produce a net cost. They suggest that in England: The receipt of fines and fees in the current year i s expected to exceed the day to day running costs of magistrates courts (Morgan and Bowles, 1981:203-204). - 132 -Although fine revenue i s a t t r a c t i v e to government o f f i c i a l s in B.C., i t cannot be said to cover or exceed the cost of administering j u s t i c e in t h i s province. During 1977/78, the province of B.C. c o l l e c t e d $10,376,000 in fines and an additional $319,000 in fines was collected by court s t a f f and paid d i r e c t l y to the municipalities throughout the province. M u n i c i p a l i t i e s throughout the province also c o l l e c t m i l l i o n s of dollars of f i n e revenue for parking v i o l a t i o n s (the City of Vancouver receives three to f i v e m i l l i o n dollars a year in f i n e s ) . In 1982/83 the sum of money col l e c t e d by the provincial government i s estimated to have increased to $20,000,000. The money generated by these fines and penalties goes, however, into general government revenue rather than d i r e c t l y to the Ministry of Attorney General which administers the provincial j u s t i c e system and cost-shares provincial policing with the federal government. The process of directing any revenues generated by any of the provincial government's agencies into a general fund rather than as a means to o f f s e t the agency's budget i s a standard practice in B.C. It i s clear also that the value of the fines received would not go fa r in covering the 314.9 m i l l i o n d o l l a r budget expended in 1982/83 by the j u s t i c e system in B.C. Nevertheless, instead of burdening the public purse l i k e other sanctions do, the fine does generate some revenue. I t i s argued that the levying of fines should not necessarily imply the state's attempt to recoup i t s costs (Albrecht and Johnson, 1980). Instead, i t i s suggested that fines are set, not to enrich the treasury, - 133 -but to be a deterrent and punishment to the offender (Carter and Cole, 1979:161). Most authors agree: Before taxation was used extensively, the fine used to be one of the main methods of financing the Crown and the State (Davidson, 1965:90). Davidson, however, would not want to see t h i s practice resurrected since "... j u s t i c e ought to be done regardless of the cost to the community" (1965:91). He goes on to express a hope that "... revenue i s neither a conscious nor unconscious motive for the imposition of fines" (1965:91). This sentiment i s supported by the suggestion that the state has no right to reimburse i t s e l f for the expense of administering j u s t i c e - a social necessity - and t h i s practice i s seen as even more deplorable i f i t serves to enrich the state at the expense of the actual victim of crime (University of Pennsylvania, 1953:1027). If the structural and legal mechanisms are in place to enable j u r i s d i c t i o n s to u t i l i z e revenues from fines to o f f s e t costs or act as a substitute for higher taxes, no matter how v a l i d the above arguments against such practices, fine revenue w i l l be put to these purposes. Small U.S. counties which control t h e i r own budgets find the potential for revenue from fines extremely a t t r a c t i v e (University of Pennsylvania, 1953:1027). On the other hand, the structure of Canadian government, the substance of l e g i s l a t i o n , the administration of general revenue, and the attitudes of the bureaucracy (at least in B.C.) ensure no such obvious attempt to reimburse the cost of the j u s t i c e system through the practice of f i n i n g . - 134 -3. The Bureaucracy in B r i t i s h Columbia It i s the bureaucracy's role to develop p o l i c i e s of crime control in B r i t i s h Columbia (B.C.) which bridge p o l i t i c a l and legal concerns, public opinion, and f i s c a l r e s p o n s i b i l i t y . With few exceptions, however, the individuals or groups of individuals employed by the B.C. government to administer the j u s t i c e system seldom or never a r t i c u l a t e t h e i r roles in this manner. There i s acknowledgement that j u s t i c e system p r a c t i t i o n e r s are in the business of punishment and r e h a b i l i t a t i o n , or the "softer" term, corrections; that crime control and i t s prevention i s the aim of the system, and these functions have to be provided within the constraints of the p r o v i n c i a l , f i s c a l r e s t r a i n t program. Beyond t h i s , i t i s the exception rather than the rule to f i n d j u s t i c e system personnel discussing questions about the legitimacy of the state or i t s role in the accumulation of c a p i t a l . During informal interviews and committee meetings on the approach the j u s t i c e system of B.C. should take in responding to motoring offenders, i t became quite apparent that no two representatives on the committee could agree on the basic theoretical aims of the system, l e t alone the role of the fine and the need for fine revenue. The orig i n a l intent of the proposed l e g i s l a t i o n was to "get tough" with motoring offenders by mandatory court appearances, steep f i n e s , and for the worst d r i v e r s , j a i l sentences. By the time the l e g i s l a t i o n was to be implemented, however, the r e a l i t i e s of the government's r e s t r a i n t program necessitated the re-assessment of the l e g i s l a t i o n . To implement the entire package was deemed far too costly to the j u s t i c e system, even - 135 -though the fine revenue generated could o f f s e t these costs. The concerns of the bureaucrats were r e s t r i c t e d to t h e i r own branch in t e r e s t s (e.g., p o l i c e , courts or corrections) and the certainty that t h e i r respective branches would not be burdened f i n a n c i a l l y with procedures the committee as a whole might endorse. The central f i n a n c i a l c i v i l servants, with no f i e l d i n t e r e s t s , were the only ones concerned in some fashion with fine revenue while planning analysts were aware, whether or not they condoned the p r i n c i p l e , of the p o l i t i c a l concerns of appearing to "get tough" with the motoring offender. As Marenin (1981) found in his study of poli c e , employees in the j u s t i c e system in B.C. also adhere to a d i v e r s i t y of p o l i t i c a l and social values with no shared p o l i t i c a l agenda amongst them. P o l i t i c a l decisions, when they are made in provincial government agencies, are removed for the most part from the decision-making functions of bureaucrats. This i s not to say that bureaucrats are unconcerned with the p o l i t i c a l repercussions of th e i r p o l i c i e s and practices; a great deal of time and e f f o r t i s spent avoiding public and negative sentiment and by so doing ensuring the system's legitimacy and continuation. There i s ce r t a i n l y no preoccupation amongst j u s t i c e system bureaucrats with the preservation of capitalism per se. Rather, there i s concern by top bureaucrats that they maintain current levels of funding, expand t h e i r budgets i f possible, and i f need be, at the expense of competing components of the j u s t i c e system. This may be done by recommending expenditures in areas which are p o l i t i c a l l y f easible or where legal or statutory obligations to perform the service are clear. - 136 -The i n s t i t u t i o n a l separation of the state and the economy in B.C. and the fragmentation of the accumulation and legitimation functions performed by state agents lead to intense f i s c a l stress, to the incremental ism of budgets, to the lack of assessment and the f a i l u r e to eliminate obsolete programs, and to such general economic i n e f f i c i e n c i e s as were described by Friedland, Piven and A l f o r d (1978). Government agencies in B.C., l i k e the private sector, constantly need to manoeuver for p o l i t i c a l and bureaucratic a l l i e s to survive without the necessity of major cutbacks. The difference between government agencies and the private sector i s that the former are excluded for the most part from p r o f i t a b l e a c t i v i t y and representatives must vie with one another for funds to support t h e i r unprofitable forms of service delivery. The bureaucracy in B.C. i s dependent upon the taxes drawn from the incomes or p r o f i t s generated in the private sector or through public debt to fi n a n c i a l i n s t i t u t i o n s and in a small way from revenue sources such as the f i n e . For the most part, however, no government agency in B.C. i s concerned expressly with the source of the funds available for i t s budgetary purposes. Financial or treasury board analysts in B.C. may be interested in revenue-generating a c t i v i t i e s , but the j u s t i c e system i t s e l f has l i m i t e d i n t e r e s t in t h i s type of a c t i v i t y . There i s a perception among bureaucrats in the j u s t i c e system of B.C. that additional costs associated with new l e g i s l a t i o n or alternate sentencing practices must be covered by existing budgets, p a r t i c u l a r l y in times of f i s c a l r e s t r a i n t . Therefore the concern is to somehow balance the intent of - 137 -government (e.g., to harshly respond to motoring offenders) with f i s c a l r e a l i t i e s . There i s l i t t l e incentive to increase costs by, for example, 10% which in turn could increase revenue by 50% or more since the " p r o f i t s " are not returned in whole or in part to the agent which generates the revenue. Bureaucratic concerns with economic advantage are limited to questions of whether there are easier or more e f f i c i e n t ways to administer the f i n e . As one government o f f i c i a l in B.C. mentioned: "we don't go out and create offenders so we can fine them and thus generate revenue for government". Thus the economic a t t r a c t i o n of the f i n e for the j u s t i c e system bureaucracy i s that i t i s c o s t - e f f i c i e n t and i t s potential l i e s in the speedy processing of large volumes of offences. It i s for this reason that "... c o l l e c t i n g the fine becomes the primary problem [when] economic advantages for government ... are emphasized" (Albrecht and Johnson, 1980:5). C. SUMMARY AND CONCLUSIONS The fine exercises the least control over offenders who can pay immediately or on time. J a i l deprives completely the offender of his or her l i b e r t y , while probation, although not a form of total surveillance, i s of the longest duration and places the offender in constant threat of committing a technical breach of the order. The fine does deprive the offender of economic l i b e r t y and the perception of the severity of t h i s deprivation w i l l vary among the offender population. As G i l l e s p i e (1980) notes, humanitarian motives ( i . e . , reducing the i n t e n s i t y and duration of control) need not be the primary a t t r a c t i o n of the f i n e : - 138 -From an economic perspective, fines o f f e r society a far less costly form of punishment than incarceration. Any evaluation of a greater use of fines in [e.g.,] the United States policy should consider both aspects (p.25). Kraus (1974) adheres to a similar position when he writes: From the social point of view [the fine] i s the only penal measure which not only does not burden the community but is f i s c a l l y advantageous (p.231). However, both G i l l e s p i e (1980) and Kraus (1974) overstate and oversimplify the economic case for the fine when they argue the fine can also take the form of d i r e c t compensation (or r e s t i t u t i o n ) to the victim. G i l l e s p i e (1980) states: In an economic sense, fines and r e s t i t u t i o n are simply d i f f e r e n t forms of monetary penalties; f i n e s are paid in cash and r e s t i t u t i o n may be in cash or kind (p.25). This i s a s i m p l i s t i c p a r a l l e l i s m of the aims of the fine and compensation and r e s t i t u t i o n which does not take into account the legal or h i s t o r i c a l development of these sanctions. It also diminishes the real difference regarding the beneficiaries of these monetary penalties. G i l l e s p i e (1980) argues that whether the fine should represent a gain to the state (and a l l taxpayers) or to the victim of the crime i s an e t h i c a l , not an economic question. In fac t i t i s both an e t h i c a l and an economic question - i s the state obligated to insure c i t i z e n s against i t s f a i l u r e s to achieve f u l l y the protection of society and should the state divert i t s fine revenue back to the victims of crime and consequently increase taxes, i t s debt, or the burden on other sources of revenue. Beyond t h i s , favoring compensation over the fine - 139 -i s a redirection of the h i s t o r i c a l development of sentencing patterns and practices and would require major l e g i s l a t i v e , programming, and procedural changes before i t can be seriously considered. A case can be made for the economy of the f i n e . Fine revenue, however, w i l l not go far in resolving a state's f i s c a l problems even though without such revenue other sources would have to be tapped further. The fine cannot be seen simply as a response to economic problems. The fine's continued use rests as well on i t s a b i l i t y to s a t i s f y the respective concerns of l e g i s l a t o r s , judges, the p o l i c e , bureaucrats and the public at large. While the bureaucracy focuses on the e f f i c i e n c y of the administration of the f i n e , the j u d i c i a r y and to a lesser degree the pol i c e , and l e g i s l a t o r s focus on the effectiveness of the sanction as a deterrent. The p o l i t i c i a n s are concerned, on the other hand, with t h e i r continued legitimacy and thus with the public's response to the use of f i n e s . If the public demands harsher punishment for wrongdoing, the f i n e , as a punitive sanction, can express this sentiment. This does not mean, however, that the public w i l l condone the use of fines for offences which they consider more serious and warrant even harsher treatment. Attitudes about what constitutes "harshness" in sentencing change over time and vary across j u r i s d i c t i o n s and among general and offender populations. It i s the task of the p o l i t i c a l machinery attached to the j u s t i c e system to assess and respond to changing public opinion. It i s evident that the analyses provided by Panitch (1980), Miliband (1983) and Marenin (1981), reviewed in Chapter 3, can enhance - 140 -an understanding of the dynamics of state bureaucracies. Rather than dismiss the d ivers i ty of values and roles at play in any one state bureaucracy these authors acknowledge th i s d i ve r s i t y . Such analyses a s s i s t in furthering one's understanding of the role and structure of the ju s t i ce system in B r i t i s h Columbia. Other theoret ic ians ' analyses of the often contradictory state functions of cont ro l , leg i t imat ion, and accumulation, and the fragmentation of these functions across state i n s t i t u t i on s , were found to apply generally to the dynamics of the B.C. system as wel1. Concerns over the social ju s t i ce of the f ine have been implied and discussed piecemeal in preceding chapters which examined the issue of f ine default ing and the imprisonment of defaulters. The fol lowing chapter addresses the relat ionship between jus t i ce and the f ine more d i r e c t l y . - 141 -CHAPTER 8 SOCIAL JUSTICE AND THE FINE There are three basic and competing conceptions of social j u s t i c e : 1) j u s t i c e as the protection of acknowledged rights i s a conservative view which sets out to preserve the established d i s t r i b u t i o n of wealth and prestige in a s t r u c t u r a l l y f i x e d , hierarchical society, 2) j u s t i c e as the d i s t r i b u t i o n of wealth according to deserts, view deserts as derived from one's own actions, q u a l i t i e s , moral virtues, e f f o r t s , and achievements within a society where competition, mobility and individualism p r e v a i l , 3) j u s t i c e as d i s t r i b u t i o n according to need stresses economic equality, altruism, and a cooperative c o l l e c t i v e community ( M i l l e r , 1974). In many s o c i e t i e s , a l l three conceptions of social j u s t i c e are practiced. Inheritance and property rights are protected, at the same time that social and economic mobility i s f e a s i b l e , even encouraged, and social welfare and progressive taxation d i s t r i b u t e some goods to those in need. The composite meaning of "social j u s t i c e " obviously refers to many other i n s t i t u t i o n s aside from the criminal j u s t i c e system (Van Den Haag, 1975). Formal j u s t i c e exercised by the state and upheld by the laws of the country e n t a i l s the equal treatment of those in the same category. External standards and the legal rules of j u s t i c e adopted emphasize due process and equality before the law. In the sentencing process, the standard i s uniformity; s i m i l a r sentences are distributed to similar - 142 -offences and offenders (Law Reform Commission, 1974b:33). In moral terms, these p r i n c i p l e s are expressed as fairness and humanity. Although Balbus (1977) argued that the legal form tends to obscure the real differences between people by virtue of i t s "blindness" to i n e q u a l i t i e s , others argue that the p r i n c i p l e of j u s t i c e does not turn a blind eye to the d i v e r s i t y of cases heard in courts of j u s t i c e . As Reynolds and Rock (1976) note, j u s t i c e occurs when equals are treated equally while ... i n j u s t i c e arises when equals are treated unequally and also when unequals are treated equally (p.136). This concern with j u s t i c e within the context of f i n i n g arises in two instances: 1) when the amount of the fine i s fixed and i s t r i v i a l to the wealthy offender and a burden to the poor offender, and 2) when a fine imposed on the poor leads almost inevitably to default and the imprisonment of the poor. A. SENTENCING DISPARITY There i s an abundance of case law in the United States on imprisonment in default of a f i n e . I t i s argued that i f a fine i s considered the appropriate sanction for an offence, and a j a i l term res u l t s from an offender's indigent status, the practice of fi n i n g i s discriminatory. The constitutional v a l i d i t y of a default sentence for indigent offenders was challenged in the United States under the 14th Amendment ( i . e . , equal protection under the law). In 1970 the Supreme Court of the United States held that i f a sentencing judge knows a defendant cannot pay a fine and therefore i s incarcerated to work off the fine - 143 -(which results in imprisonment beyond the period authorized for the crime), the sentence i s excessive and violates due process of the law (Hickey and Rubin, 1971:426). The William v. I l l i n o i s (1970) case also addressed the practice of incarcerating offenders for f a i l u r e to pay immediately the f u l l amount of the fine (Columbia Law Review, 1971). I t was ruled that denying a f a i r opportunity to someone too poor to pay a fine immediately was contrary to the legal goal of equal treatment and was economically • discriminatory. The decision meant the fine should be made a meaningful sanction for the poor rather than an alternative way to impose incarceration. A 1971 case, Tate v. Short extended the 1970 rul i n g by prohibiting default imprisonment of indigents i f the fine was the only authorized penalty for the offence because any imprisonment therefore exceeded the maximum. This decision dealt only with equal treatment in the c o l l e c t i o n and enforcement of fines not whether the fine was a useful sanction for the poor defendant (Columbia Law Review, 1971). In the state of New York, a county court ruled that even i f a j a i l sentence does not exceed the statutory maximum for the offence i t must set aside a commitment of an offender for 150 days for default of a $150 fin e since: a) those who have funds would be freed immediately and this f l o u t s the p r i n c i p l e of equal treatment under the law, and b) no "150 j a i l days equals $150" equation exists in law (Hickey and Rubin, 1971). In 1970 the Supreme Court of C a l i f o r n i a declared i t unconsti-tutional to substitute j a i l for a fine when the defendant was unable to - 144 -pay a fine since t h i s implied a choice where none existed, or, at the lea s t , i t was a real choice for the ri c h and a hollow one for the poor. The ruling went on to declare discrimination on the basis of wealth vi o l a t e d the 14th Amendment (Hickey and Rubin, 1971). It has been suggested that i t is due to the nature of th i s case law in the United States that the practice of f i n i n g has not increased in use ( C r i t e l l i and Crawford, 1980). Nevertheless, i t was found that an estimated 40 to 60% of county court j a i l s in the U.S. are comprised of fi n e defaulters, which suggests that this discriminatory practice s t i l l e x i s t s . Outside of legal c i r c l e s , i t i s argued that the a v a i l a b i l i t y of legal aid for indigents accused of an offence and the establishment of small claims courts where complainants can plead t h e i r own c i v i l cases were both meant to improve the position of the poor in terms of equal access to j u s t i c e . Less attention, however, has been given to the issues of disparate sentencing as a "back end" problem of the j u s t i c e system. Not the least of the reasons for a lack of improvements in th i s area i s due to the ju d i c i a r y ' s independence. There i s evidence that d i f f e r e n t judges apply d i f f e r e n t p r i o r i t i e s among the objectives of punishment, r e h a b i l i t a t i o n , deterrence, and the protection of the public (Hogarth, 1971). Judges can be wholly consistent within t h e i r own set of objectives but the objectives vary between judges leading to d i f f e r i n g sentencing patterns regardless of how much the public or the state bureaucracy might wish for consistency (Hogarth, 1971; Jackson, 1982). - 145 -J u d i c i a l independence and discretionary practices serve to exacerbate the concern that unless fines are related to the offender's means to pay, the fine can be considered unfair or unjust since i t has a d i f f e r e n t i a l e f f e c t on those who can pay and those who cannot. This concern has been addressed in part at least in Canadian and English l e g i s l a t i o n which instructs the j u d i c i a r y to determine the means of offenders prior to imposing a fine (Canadian Criminal Code, Section 646; Radzinowicz and King, 1979:315). The extent to which t h i s occurs w i l l vary among the j u d i c i a r y since the means inqui r i e s are nevertheless discretionary. Dell (1974) reported that in a survey of fine defaulters in Birmingham, England i t was found that one in seven defaulters had no income at the time they committed the offence for which they were fined. This leads Dell to conclude that no determination of the means of offenders was arrived at prior to the imposition of the f i n e . Jobson (1970) found what he took to be evidence of sentencing d i s p a r i t y in Nova Scotia when minimum and maximum fines for assault cases varied from a low of $2 to a high of $500 among six courts as did assault causing bodily harm fi n e s . In an unpublished report of a survey of f i n e defaulters in B r i t i s h Columbia, the data showed major d i s p a r i t i e s in the amounts of the fines and the default days s p e c i f i e d . One impaired driver with seven known pr i o r convictions was fined $100 or 30 days in j a i l while another impaired driver with no prior convictions was f i n e d $600 or 45 days in j a i l . Two offenders, both charged with driving over a blood alcohol count of .08 and both having two prior - 146 -convictions were each fined $500 but, the days in default for one was seven days and the other sixty-one days. Yet another offender with no p r i o r convictions was fined $600 or 184 days in j a i l while one with no pri o r convictions was fined $1,000 or 14 days in default. One could speculate that the amounts of the fines varied because the j u d i c i a r y took into consideration the means of the offenders. For example, where small fines were exchanged for larger numbers of days in default, had the offender the means to pay the fine i t might have been larger in amount and the do l l a r value of the j a i l days closer to the average. Unfortunately there i s no information available to judge the accuracy of t h i s speculation. Concern over the variations in the amount of the fines levied and the number of default days specified remains v a l i d since i t i s simply not known whether these types of variations are ju s t , i . e , the economic means of the offenders were taken into consideration and there exists some rationale for the conversion of the value of the fine into j a i l days. As the Law Reform Commission noted ... equality of punishment i s not achieved by uniformity in the do l l a r amount of fines (1974a:33). The same can be said for the number of days s p e c i f i e d to be served i n default of a f i n e . The practice as i t now exists has an appearance of i n j u s t i c e and in r e a l i t y w i l l continue to be unjust and u n j u s t i f i a b l e as long as f i n a n c i a l hardships imposed on law-breakers mean that the poorer members of society bear the greater burden. This d i f f e r e n t i a l e f f e c t of l i k e fines on d i f f e r e n t offenders distinguishes the fine from other - 147 -sanctions, and i t was due in no small part to t h i s , that a d i f f e r e n t scheme for achieving t h i s uniformity, the day-fine system, has been established in many countries. B. THE DAY-FINE The day-fine system in Sweden, Finland, Denmark, and other j u r i s d i c t i o n s i s a t t r a c t i v e because i t addresses concern about the inequity of f i n i n g . By calculating the amount of each day fine in proportion to the offender's income and enabling the gravity of the offence to be r e f l e c t e d in the number of "day" fines for which the sum has to be paid, a step i s taken toward equal punishment for unequal offenders (Radzinowicz and King, 1979:316). There i s a low minimum established and usually levied against students, old age pensioners, and national servicemen. The amount of the day-fine may be abated to ensure that a very wealthy offender does not pay heavily for a minor offence. Recently, however, such petty offences (e.g., parking violations) have been converted into a fixed penalty and therefore the number of abatements are very small (Thornstedt, 1975:311). West Germany also introduced a day-fine system taking into account the offender's income, assets, and maintenance r e s p o n s i b i l i t i e s , because of similar perceived i n e q u i t i e s (Hickey and Rubin, 1971; G i l l e s p i e , 1980). There are, however, some c r i t i c i s m s of the day-fine system. Concern has been expressed that the separate c a l c u l a t i o n of the seriousness measure of crime from the economic status of the offender i s not always observed. Instead, the practice of some judges has been to es t a b l i s h the amount of the fine and then to calculate the number of day-fines and the unit - 148 -value ( G i l l e s p i e , 1980; Thornstedt, 1980). This apparently occurred most often in cases of a minor nature frequently before the courts. In response to t h i s , as mentioned, the Scandinavian countries and Germany recognized that for high volume, minor offences i t was wasteful to expend resources on the determination of an offender's net income and these offences would be dealt with by f l a t , f ixed f i n e s . An additional c r i t i c i s m of the day-fine in Germany was i t s potential to impose very high fines on offenders ( G i l l e s p i e , 1980). In pr a c t i c e , however, G i l l e s p i e considers that the fines imposed in Germany are, i f anything, too low. Only \% of a l l day-fines have a unit value of more than 50 DeutschMarks (DM) or 25 U.S. d o l l a r s and of this no fine appears to have exceeded 9,000 U.S. d o l l a r s . The potential value range i s from 2 to 10,000 DM (or 1 to 5,000 U.S. dollars) and the number of days i s 5 to 360 for a maximum fine of 1.8 m i l l i o n U.S. 1980 d o l l a r s ( G i l l e s p i e , 1980). Other studies (Albrecht, 1978) have shown increases in the amounts of fines imposed in Germany between 1972 and 1975 and G i l l e s p i e (1980) takes this to mean greater equity in the use of fines by having higher income offenders pay larger f i n e s . Arguments against introducing the day-fine system in Canada e f f e c t i v e l y halted further discussion in the mid 1970's (Law Reform Commission, 1974a). It was argued that while i t was not a complex procedure to a r r i v e at the income, taxes, expenses, and f i n a n c i a l l i a b i l i t i e s of offenders in countries such as Sweden where income i s a matter of public record, in Canada privacy of information extends to income tax returns and any other personal data which might serve to - 149 -assess the f i n a n c i a l circumstances of an offender. As a r e s u l t , the c a l c u l a t i o n of day-fines was seen to be a costly and cumbersome procedure and by basing the calculation on verbal rather than material evidence i t would remain inaccurate. However, in Germany, as noted, day-fines were introduced in 1975 without a l t e r i n g l e g i s l a t i o n to obtain income tax information and no known problems have arisen as a r e s u l t of relying on the offender's statement and i n d i r e c t evidence of economic status to determine the day-fine. C. SUMMARY AND CONCLUSIONS As has been mentioned, f i x i n g a fine and a j a i l term to be served in default may be administratively expedient but remains, in practice, unjust. There i s no choice for the poor and in fa c t the two sanctions are not or should not be intended as a choice contrary to Section 646 (9) of the Canadian Criminal Code which in e f f e c t allows the offender to waive the time allowed to pay the fine and opt for immediate committal. The j a i l term, as an enforcement technique, i s ineffectual when an offender has no funds and no hope of buying his or her freedom (Jobson, 1970). This leads to the arbitrary imprisonment of a class of persons and i s punishment that would not be imposed but for one's economic condition (Jobson, 1970). People who have the funds to pay a fine w i l l do so rather than go to j a i l . There i s no evidence that "... people ... go to j a i l out of choice" (Jobson, 1970:644). Even i f a j a i l sentence for the indigent has more u t i l i t y than d i s u t i l i t y and accordingly i s chosen because shelter and food has more value than l e i s u r e , allowing such a choice places the j u s t i c e system in disrepute (Reynolds and Rock, 1976). - 150 -To achieve the p r i n c i p l e of equal j u s t i c e , the d i s u t i l i t y of a given fin e must be the same for a l l . Where there i s inequality of income t h i s i s unlikely to occur. The marginal u t i l i t y of time, however, i s more evenly d i s t r i b u t e d and i t i s for th i s reason the day-fine as a form of "time-equivalent-money" fine i s a more feasible approach to the establishment of equitable j u s t i c e in the practice of f i n i n g . This type of fine also i s less susceptible to the d i s t o r t i n g e f f e c t s of the monetary market (Reynolds and Rock, 1976). The real and potential abuse of the system of fixed f i n i n g ensures the attractiveness of the day-fine system or i t s equivalent. D i f f e r e n t offenders are punished equally for equal offences. They incur the same d i s u t i l i t y for the same offence. This may not go far enough for authors such as Balbus (1977) who argue that to achieve true social j u s t i c e and to demystify the legal form which i s blind to inequivalence, the state should treat the rich more harshly than the poor for committing a comparable crime. Nevertheless, attaining equal d i s u t i l i t y for unequals before courts of law moves toward the upholding of existing notions of formal j u s t i c e . The r e s u l t i s a fine system which seeks to punish equally offences of sim i l a r gravity but at the same time, given the penalty i s monetary, to achieve equity across offenders of disparate f i n a n c i a l means ( G i l l e s p i e , 1980:22). It has been concluded by others and reit e r a t e d here that as a r e s u l t : ... the day-fine system ... was found to s a t i s f y social j u s t i c e more than any other sanction does ... (Newton, 1981:135). - 151 -I t i s not surprising that the fine i s used so extensively, e s p e c i a l l y in countries which have the day-fine compared with those which do not have such a scheme. The j u s t i c e (or i n j u s t i c e ) of the fine i s related to the more general issue of legitimation. As noted in Chapters 3 and 7, the penal social control function of the state may be c a l l e d into question i f the cost of sanctioning offenders diminishes the resources required for other social services provided by the state or jeopardizes the ca p i t a l accumulation function. This w i l l threaten the legitimacy of the state. In addition, the state seeks legitimacy through i t s capacity to uphold notions of fairness and humanity and to appear, j u s t , and on occasion to be j u s t , in i t s treatment of deviant populations. The j u s t i c e systems of contemporary democratic states emphasize due process, equality before the law, and equal sentencing for equal offenders to legitimate t h e i r operations. When the j u s t i c e system i s obviously at odds with these p r i n c i p l e s , as i t i s when fined indigents are treated more harshly than t h e i r wealthy counterparts, the legitimacy of the system i s threatened. - 152 -CHAPTER 9 SUMMARY AND CONCLUSIONS 1 The purpose of this thesis was to provide a f u l l description of the use of the f i n e . To t h i s end, a review of the l i t e r a t u r e and the c o l l e c t i o n and presentation of o f f i c i a l Canadian and B.C. s t a t i s t i c s were undertaken. The available l i t e r a t u r e on the f i n e addressed in a piecemeal manner the s a l i e n t features of the f i n e . Claims as to the fine's superiority as humane, cheap, and e f f e c t i v e , and contrary positions which saw the fine as discriminatory with insurmountable c o l l e c t i o n problems, lacked substance and comprehensiveness. This thesis attempted, therefore, to draw together in as comprehensive and complete a way as possible information and opinions on the f i n e . To t h i s extent, the thesis was descriptive. In some instances, i t confirmed both the s u p e r i o r i t i e s and the i n f e r i o r i t i e s of the fine but i n a l l instances i t attempted to provide a f u l l accounting of the issues. A concerted e f f o r t was made, as well, to analyse the f i n e within i t s broader context as a control measure imposed by an i n s t i t u t i o n of the state. A conceptual model of the state which encompasses the functions of control, legitimation, and accumulation, provided the opportunity to move beyond a description of the fine as a sentence of the court within the j u s t i c e system to situate the f i n e within the i n s t i t u t i o n s of the contemporary state. The fine was assessed in terms of i t s e f f i c i e n c y and effectiveness, i t s economy as a social control measure, and the degree to which i t - 153 -demonstrates p r i n c i p l e s of formal j u s t i c e . This chapter summarizes the most s i g n i f i c a n t findings of t h i s thesis and provides a further analysis of the implications of these findings in terms of the structural mechanisms and functions of the state in society. A. CONCLUDING REMARKS ON THE FINE 1. The Use of the Fine During the course of this investigation i t became readily apparent that there i s not a great deal of l i t e r a t u r e on the fine as a sentence of the court. Often the fine i s studied for comparative purposes by authors whose focus i s on the use of incarceration or probation. This lack of emphasis on the fine i s partly due to the lack of available o f f i c i a l , s t a t i s t i c a l information, and in no small part to the d i s i n t e r e s t in studying such a commonplace sanction which generates seemingly l i t t l e controversy. On the basis of available information, the fine was found to be the most common di s p o s i t i o n of the courts p a r t i c u l a r l y for minor and motoring offenders but even for more serious offences against property and persons. Fines are most t y p i c a l l y used for the v i o l a t i o n of laws which proscribe a form of conduct considered to create a risk of harm to others (e.g., speeding in a motor vehicle) and to a lesser, but s t i l l substantial degree for offences which cause the immediate i n f l i c t i o n of harm (e.g., a s s a u l t ) . While there i s evidence that the use of the fine i s increasing in England and Western European countries and i t s use as a substitute for short term j a i l sentences i s encouraged, the same - 154 -cannot be said for North American countries. G i l l e s p i e (1980) summarizes the s i t u a t i o n in the United States: The continuing commitment to incarceration as the primary means of social control in the United States for crime stands in sharp contrast to contemporary penal reform in European countries, where a major focus of penal reform involves reducing the use of incarceration, i n large part, by more extensive and innovative use of fi n e s (p.20). In B r i t i s h Columbia the fine i s used extensively; nevertheless, i n recent years the use of the fine has decreased somewhat in favor of short j a i l sentences for provincial statute, minor offenders. It i s speculated that this practice results from a "get tough" policy prevalent in the province in response to motoring offenders. The fine w i l l continue to increase in use as the state continues to regulate the day-to-day behavior of c i t i z e n s . The addition of minor offences and technical v i o l a t i o n s to the legal statutes ensures the future of the f i n e . The continued use of the fine i s not, however, completely assured. In large part due to the organization and support of victims of crime i n North America, compensation and r e s t i t u t i o n are being considered as sentencing alternatives in criminal law. If victim redress i s emphasized i t w i l l be, at least in part, at the expense of f i n i n g offenders. 2. The E f f i c i e n c y , Effectiveness, and Economy of The Fine There are wide variations in the u t i l i z a t i o n of enforcement measures to demand payment of the f i n e . England, in p a r t i c u l a r , has a number of options available including l e t t e r s of reminder, means - 155 -summonses and warrants, payment supervision orders, and ultimately imprisonment. In Canada, there are limited measures to enforce payment, i . e . , warrants of arrest and committal to j a i l . In B.C., however, c i v i l procedures are available i f the offence i s against a provincial statute since these offenders cannot be imprisoned in default. In a l l cases, time to pay or payment by installments i s possible although the practice of immediate committal i f the fine i s not paid at the end of the court hearing s t i l l occurs in many countries. In e f f e c t , t h i s procedure imprisons the poor. For this reason one of the most pressing problems associated with the f i n e , i s the use of imprisonment for defaulters which tends to ensure that the insolvent are penalized more harshly than the solvent and diminishes the claim of the humaneness and inexpensiveness of the f i n e . Many j u r i s d i c t i o n s (e.g., Canada and West Germany) always specify the number of days to be served in default should the fine not be paid. This cannot be taken as a choice by the offender of one sanction over another. In practice i t may be a choice to the r i c h but no choice to the poor. If imprisonment i s to represent an enforcement measure wielded as a l a s t resort and i f i t i s administratively expedient only to specify t h i s measure at the time of sentencing, cancelling the fine once the j a i l term has been served or pro-rating the value of the fine based on the number of days served p r i o r to buying one's way out of j a i l i s contrary to the meaning of enforcement. It i s clear that the use of imprisonment as i t relates to f i n i n g i s confused: i s i t an enforcement measure, an exchange of equivalence ( i . e . , j a i l days for d o l l a r s ) , or a d i f f e r e n t sentence for the f a i l u r e to f u l f i l l the o r i g i n a l sanction? - 156 -I t i s estimated that up to 70% or more of offenders fined w i l l pay t h e i r fines without any enforcement or with minimal enforcement short of the threat of imprisonment. There i s also limited evidence that in the absence of the threat of imprisonment the majority of offenders w i l l s t i l l pay t h e i r f i n e s . This i s due in large part to the f i n i n g of "good r i s k s " , that i s , offenders with no or l i t t l e criminal history and with the means to pay fi n e s , the values of which are f i t t e d to t h e i r f i n a n c i a l circumstances. Findings on the effectiveness of the fine in reducing recidivism are mixed. The fine i s as e f f e c t i v e or more e f f e c t i v e than probation or prison for f i r s t - t i m e offenders charged with almost any offence for which there i s no need for corrective treatment. Since up to 80% of f i r s t offenders do not re c i d i v a t e , i t can be argued that fines should be used even more for these offenders (Bottoms, 1981). Alcohol and drug related offenders and some t r a f f i c offenders w i l l continue to recommit offences regardless of the sanction imposed, as w i l l career criminals. I t i s for this reason that more innovative approaches to sentencing such as the use of mandatory drivers' courses and drug therapy are required. Some evidence i s available that offenders may not think highly of the f i n e . They may not l i k e the punishment i t e n t a i l s . Whether th i s w i l l deter them from re-offending i s not clear nor i s i t clear that they would prefer other available sanctions. The general public i s not adverse to the use of the fine for offences they consider somewhat serious. Although the public's response in B r i t i s h Columbia to the sentencing of impaired drivers tends to be more in keeping with f i t t i n g - 157 -the sentence to the offence (e.g., licence suspensions), they acknowledge a role for the f i n e . At the same time, the public has the expectation that where death or injury occurs as a r e s u l t of the offence of impaired d r i v i n g , the response should be harsher, even for f i r s t time offenders. The j u d i c i a r y in B.C. at least appear to be responsive to these public attitudes in the sentencing of such offenders to terms of imprisonment. The p r a c t i c a l and economic u t i l i t y of the fine i s the avoidance of prison and supervisory orders. If f i n i n g does not lead to imprisonment, i t i s by f a r the l e a s t expensive measure when compared with probation or j a i l . As soon as offenders are imprisoned in default, the economy of the fin e diminishes. A unique aspect of the fine i s that i t costs the offender, rather than the state, money. The revenue generating function of the f i n e , in the m i l l i o n s of dollars in B.C. alone, i s a t t r a c t i v e to state f i n a n c i e r s , but seems to be of limited concern to the actual administrators of j u s t i c e . 3. Social Control, Social J u s t i c e , and The Fine Penal social control i s exercised through: a) the c o l l e c t i o n and u t i l i z a t i o n of information on offenders and to this extent a l l sanctions are comparable, and b) the degree of surveillance and control exercised over the behavior and i n d i r e c t l y the attitudes of offenders. Except for placing l i m i t s on the economic l i b e r t y of the offender, the f i n e , i f i t does not lead to imprisonment in default, exercises the least social control of a l l sanctions. The use of fines i n a sense acknowledges the l i m i t a t i o n of what the state can achieve through i t s formal agencies of - 158 -s o c i a l control. It recognizes that "... the law i s not a proper social instrument for solving most of the problems i t attempts to solve" (Morgan, 1979:19). Rehabilitative sentences in p a r t i c u l a r obscured this reasoning and r e s t r a i n t by wielding far greater control over the l i v e s of offenders. The f i n e , on the other hand, l i m i t s the degree of control exercised by the state, ensures that the casual offender does not have the opportunity to intermingle with career criminals, and does not withdraw the offender from his or her l i v e l i h o o d and l i f e s i t u a t i o n . Fines as a form of r e c i p r o c i t y , of paying one's dues to society as a r e s u l t of wrongdoing on the part of the offender, minimize social loss i f the fine represents equal punishment or d i s u t i l i t y for equal offences. If punishment i s unequal, the loss of social j u s t i c e i s evident and costly in terms of the legitimacy of the system as a whole. Fines are arguably inappropriate where the harm done i s well beyond a monetary value, where i t can be seen as a license to commit the offence (although any sanction can be considered the price paid for the offence), and where fixed fines are levied independent of the economic position of the offender. At the base of unequal j u s t i c e i s the unequal d i s t r i b u t i o n of wealth and income. A j u s t system of criminal j u s t i c e in an unjust society i s a contradiction in terms. Nevertheless, for the system to operate i t must appear just and indeed at times, be j u s t . For the f i n e to be just i t must take into consideration the unequal d i s t r i b u t i o n of wealth, and f i n e the poor and the r i c h equally by imposing d i f f e r e n t i a l monetary values on the f i n e . Equality before the law when determining the innocence or g u i l t of an offender must extend to equality in the - 159 -determination of the sentence imposed on offenders before the courts. To accomplish t h i s the sentencing measures of penal social control must overtake the formal r a t i o n a l i t y of the criminal law which precludes the consideration of social class when determining g u i l t and enable the re-emergence of the content and quality, the real differences among men and women, which the legal form in i t s "blindness" o r i g i n a l l y abstracts. This is not only possible but currently occurs in j u r i s d i c t i o n s using the day-fine system. The practice of imprisoning defaulters, on the other hand, i s certain evidence that the j u s t i c e system remains unjust. B. THE THEORETICAL IMPLICATIONS OF THE FINE The f i n e , as an everyday transaction represents one of the many ways in which the j u s t i c e system responds to wrongdoing in society. In turn, the j u s t i c e system represents one of the many i n s t i t u t i o n s of the state. The f i n e can therefore be understood within the broad framework of the structural mechanisms, functions, and finances of the state. I t i s argued that theoretical analyses of the state which would l i m i t the role of crime control to the preservation of the existing socio-economic order provide l i t t l e assistance in understanding the role of the j u s t i c e system, l e t alone the role of f i n i n g . Such analyses are c i r c u l a r in reasoning; whatever control mechanism employed, by d e f i n i t i o n f i t s the needs of the ruling c l a s s . S i m i l a r l y , i t i s f e l t that the "integration-consensus" perspective of the state as a set of i n s t i t u t i o n s which maintains s t a b i l i t y in c i v i l society oversimplifies the role of the state by f a i l i n g to account for the r e a l i t y of c o n f l i c t and inequality. Authors such as Offe (1972), Block (1977), Balbus (1977), and O'Connor (1973), on the other hand, re j e c t both the narrow instrumentalist view of the state and the consensus t r a d i t i o n and by so - 160 -doing provide analyses of the state which arguably can be applied to concrete events in everyday l i f e . These authors, at f i r s t glance, may appear to have l i t t l e to say about the issues surrounding the fine including i t s e f f i c i e n c y and effectiveness, i t s continued use, or the competition i t faces from sanctions such as compensation, or r e s t i t u t i o n . It was found, however, that a conceptual model of the state which encompasses the often contradictory functions of accumulation, legitimation, and control i s relevant to a general discussion of how and why the state would resort to the use of f i n e s . To be f u l l y useful, however, the means by which the state finances i t s operations and the role of the bureaucracy in f u l f i l l i n g the functions of the state must also be understood. O'Connor's analysis of how the state finances i t s e l f , and his d i s t i n c t i o n between social expenses and social c a p i t a l a s s i s t in understanding the mechanisms by which the state incurs debts and generates revenue. Friedland, Piven, and Alford (1978) acknowledge the variable manifestations of f i s c a l stress and how the separation of state agencies and functions enable the state to diffuse popular d i s a f f e c t i o n . Panitch (1980), Miliband (1983), and Block (1977) also recognize the structural d i v e r s i t y and complexity of the state's range of powers and the v a r i a b i l i t y of the bureaucracy. Marenin (1981) car r i e d t h i s understanding further in his analysis of the r e l a t i v e autonomy of the police who bring with them a history of learning, values, and b e l i e f s which a f f e c t t h e i r individual interpretations of t h e i r work. These analyses a s s i s t in interpreting findings on the financing of the j u s t i c e system, the economy of the f i n e , and the role of the bureaucracy. - 161 -None of the analyses were considered to have distinguished adequately among the types of law in society. Balbus and Pashukanis make suggestive comments on the correspondence between the commodity form and the legal form, but t h i s could only be applied very generally to aspects of the criminal j u s t i c e system. The legal form, l i k e the commodity form, i s said to mask class differences and social i n e q u a l i t i e s . This i s a r e s t r i c t i v e view of law, operational!'zed through the concept of due process. When viewed within the context of the sentencing process, however, i t was found that differences submerged during the legal process of determining g u i l t or innocence can and do re-emerge in the sentencing process: the "blindness" of j u s t i c e i s not an all-encompassing concept. The analyses reviewed, regardless of the i r shortcomings, in combination, a s s i s t in understanding the data and l i t e r a t u r e reviewed on the use, e f f i c i e n c y , and effectiveness of the fine as a measure of penal social control administered by j u s t i c e system bureaucrats in confronting problem populations. The demands on the state for order, f i s c a l r e s t r a i n t , and legitimation provide a general framework for an understanding of the broader interests at play when an event as everyday as a fin e i s imposed on an offender. The control function of the state, as administered by the j u s t i c e system must reconcile i t s need for legitimacy by balancing the severity of i t s sentencing practices with the associated costs of implementing such sentences. The system w i l l be in jeopardy i f i t s fairn e s s , costs, or effectiveness are questioned. Indeed, the legitimacy of the state as - 162 -a whole can be threatened i f i t appears to treat organized groups p r e j u d i c i a l l y , i f i t s costs far exceed i t s obvious benefits, or i f the state simply i s not seen as doing i t s job well. Thus, the general problems the contemporary state must address can be understood in the p a r t i c u l a r case of f i n i n g . The issue of legitimacy i s also related to the j u s t i c e of f i n i n g . When fi n i n g leads to the imprisonment of a class of persons, the system can be condemned as unjust, which threatens i t s legitimacy. S i m i l a r l y , the public must be receptive to the use of the fine to j u s t i f y i t s continuance or expansion. Public support for alternative sentences such as victim-compensation can inspire the j u s t i c e system to resort to the use of these sanctions rather than the f i n e . The f a c t that the fine intends to punish rather than to treat or forgive, coupled with i t s lengthy and f a m i l i a r usage, can be taken, however, as limited evidence of the public's acceptance of this type of sentence. The effectiveness of the fine in preventing recidivism and the ease of administering the fine are associated with the costs of fi n i n g which in turn i s of concern to state bureaucrats attempting to resolve f i s c a l problems. Issues of effectiveness also are relevant to the public's perception of how well the state undertakes i t s control function. Evidence that f i n i n g offenders works can serve to diffuse c r i t i c i s m s of the system's shortcomings. F i n a l l y , the revenue-generating function of f i n i n g can resolve some of the state's f i s c a l problems. Fine revenue may not be s u f f i c i e n t to completely fund the state's control function but in i t s absence, other sources of revenue would have to be tapped - 163 -further or the state's debt to f i n a n c i a l i n s t i t u t i o n s would have to increase. The f i n e can, therefore, be understood more f u l l y when situated within these broader concerns. As a sentence of the court, any sanction including the f i n e , i s one aspect of the state's social control function. This function incurs social expenses which must compete for state financing with other social expenses incurred by the state, as well as with d i r e c t and i n d i r e c t expenditures made by the state to support the process of accumulation. State resources are limited, however, and p o l i t i c a l decisions must be made as to where to d i r e c t state revenues, which demands are to be met and which can be withheld without jeopardizing the legitimacy of the state in the eyes of the business community and the public in general. These decisions r e s u l t almost always, in times of f i s c a l r e s t r a i n t , in a balancing of social service expenditures with capital accumulation expenditures which may be perceived as unsatisfactory by the business community or social service i n t e r e s t groups or both. The control function of the state may receive resources at the expense of social welfare functions and both may face f i n a n c i a l r e s t r a i n t at the expense of the accumulation function. The withholding of support to unproductive social services in order to maintain the accumulation of c a p i t a l , without at the same time s a c r i f i c i n g the state's legitimacy, i s far more e a s i l y achieved when the structure of the state's functions are fragmented across the bureaucracy, when no one state i n s t i t u t i o n i s c l e a r l y responsible for the accumulation, l e g i t i m a t i o n , and control functions. The operations of the j u s t i c e - 164 -system in B r i t i s h Columbia can be explained within t h i s context. The accumulation function appears to be removed, for the most part, from t h i s j u s t i c e system's concerns, as they relate to f i n i n g . The system nevertheless i s involved in ensuring i t s legitimacy, and thus the state's legitimacy in general. At the "front end" of the system legitimacy i s ensured by the appearance of equal treatment before the law and by po l i c i n g the community in an evenhanded manner; and at the "back-end", by sentencing offenders equally for equal wrongdoing and by imposing sentences perceived as appropriate by the public at large. It has been argued by Blumstein (1982) that "toughness" in sentencing offenders ensures the continuance of the j u s t i c e system's popular support. What "toughness" e n t a i l s , however, i s not altogether c l e a r . In some countries, capital punishment and dismembering are forms of ultimate "toughness"; in others, a j a i l sentence of long duration denotes maximum heavy-handedness. Moreover, there i s evidence that the public's perception of the severity of sanctions varies within the populace and over time. Simply arguing, therefore, that the public demands harsh sentencing practices and that the j u d i c i a r y respond accordingly, i s an incomplete analysis of the basis upon which the public w i l l favor or disfavor the j u s t i c e system's response to wrongdoing. It might be expected that the potential revenue of the fine would encourage i t s further use by the j u s t i c e system. This occurs in j u r i s d i c t i o n s where fine revenue d i r e c t l y finances the operations of small U.S. counties, but l i t t l e evidence was found that the revenue-producing nature of the fine was of concern to the bureaucracy which - 165 -administers j u s t i c e in B r i t i s h Columbia. Theorists would argue fine revenue should not be of concern since the task of the j u s t i c e system i s to protect society no matter at what costs. Bureaucrats in B.C., however, express other reasons for not focusing on fine revenue. Issues of the effectiveness and e f f i c i e n c y of the control measures as well as public sentiment toward sentencing practices are of varying degrees of concern to j u s t i c e system professionals. Beyond t h i s , maintaining current levels of funding i s often of primary concern to top level bureaucrats. These factors, combined with the fac t that provincial revenue generated by fines goes into a general fund rather than to the agency which generates or c o l l e c t s i t , create l i t t l e incentive to develop sentencing policy s p e c i f i c a l l y to embellish the state's c o f f e r s . This i s not to imply, however, that the state has no inte r e s t in fine revenue or in increasing the volume of fines or the amounts of fines to resolve some of i t s f i s c a l problems. Instead, t h i s may demonstrate, in B r i t i s h Columbia at lea s t , how the various components of the j u s t i c e system do not represent a united front on many of the issues facing the operations and financing of the j u s t i c e system, l e t alone the state as a whole. The f i s c a l concerns of the ju s t i c e system, in this instance, appear to be seen by i t s administrators as removed from the f i s c a l problems of the state as a whole. C. RECOMMENDATIONS FOR FURTHER RESEARCH' It was believed that by being sensitive to the broader socio-economic context of f i n i n g , a more comprehensive understanding of the f i n e , outside of the narrow confines of penological l i t e r a t u r e , would - 166 -r e s u l t . To t h i s extent the use, e f f i c i e n c y , economy, and effectiveness of the fin e can be understood as not simply of limited technocratic concern to the j u s t i c e system but as i n t e r r e l a t e d with broader state concerns about legitimation, accumulation, and control. I t i s recognized that a number of theoretical models of the state e x i s t and actual practices vary among contemporary c a p i t a l i s t states. For the purposes at hand, however, i t was assumed that the models developed by the authors reviewed in this thesis provided the most relevant conceptualizations of the state. This attempt at linking descriptive data on the fine to a conceptual model of the state, as presented in t h i s thesis, i s arguably a useful exercise and one which can be r e p l i c a t e d in many studies which seek to f u l l y describe everyday events which involve transactions between the state and i t s c i t i z e n s . Other conceptual models of the state which were rejected here could, of course, be employed to link the data related to fi n i n g to broader state concerns. It was maintained, however, that such attempts would be of li m i t e d value. It appeared reasonable to tentatively conclude that, within the context of f i n i n g , the j u s t i c e system did not have an obvious role in the accumulation function of the state. Such a conclusion may not have occurred had this thesis focussed on law enforcement p o l i c i e s , or why certain types of offenders or crimes were not being policed and ultimately fined. Instrumentalist conceptions of state a c t i v i t y , therefore, might focus s p e c i f i c a l l y on the possible role of the criminal j u s t i c e system in r e l a t i o n to the accumulation function of the state by examining, for example, the j u s t i c e system's response (or lack of response) to corporate, and environmental crime. - 167 -Penological l i t e r a t u r e on sentencing theories and the aims of the j u s t i c e system provide an incomplete framework for the analysis of the f i n e . Distinguishing among the aims or objectives of sentencing at a theoretical level i s far easier than making such d i s t i n c t i o n s among the actual types of sentences imposed. Regardless of the incapacitative intent of a prison sentence i t may be intended also to deter or to r e h a b i l i t a t e or to do a l l three. Retributive sentences may intend to deter, and to the degree that the reparative sentence takes into consideration the gravity of the offence i t too can have a r e t r i b u t i v e element. This ambiguity of the aims of a sentence i s exacerbated further by the j u d i c i a r y who are under no legal obligation to specify the end or ends sought when imposing a sentence. I t i s also unlikely that convicted offenders w i l l consistently i d e n t i f y and appreciate the theoretical aims of the sentence imposed; the same can be said for j u s t i c e system professionals who administer or supervise the completion of the sentence. I t i s considered more useful, therefore, to examine and describe f u l l y the actual practice entailed i n , for example, f i n i n g according to the major factors i d e n t i f i e d as relevant to any sentence of the court ( i . e . , use, e f f i c i e n c y , effectiveness, economy, and justice) rather than to define and study the sentence s t r i c t l y on the basis of what i s said to be i t s theoretical intention or objective. A number of outstanding research questions on the practice of f i n i n g remain: 1. The reluctance in B r i t a i n , Canada, and the United States to u t i l i z e the day-fine i s apparently based on the argument of privacy of information and the d i f f i c u l t y of obtaining accurate means information. This reluctance - 168 -i s puzzling in l i g h t of the experience in West Germany where the same obstacles occur but the day-fine nevertheless i s used. Further investigation of the reasons for the rejection of the day-fine i s encouraged. The r e l a t i v e popularity of the fine in European countries, i n contrast to the continued use of incarceration as the preferred method of penal social control in North America, needs to be understood more f u l l y . This may be pursued within the context of an investigation of the source(s) of public attitudes which give apparent support to "get tough" l e g i s l a t i o n and p o l i c i e s . This thesis examined f i n i n g within the criminal j u s t i c e system. The extensive recourse to the use of fines outside the criminal j u s t i c e system, e.g., by l i b r a r i e s and social clubs, may be of potential s i g n i f i c a n c e . Although i t did not appear that f i n i n g , as a sentencing strategy, was a deliberate adoption of a form of state-generated revenue in B r i t i s h Columbia, the p o s s i b i l i t y s t i l l e xists that the increased use of the fine may s i g n i f y such an intent. 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