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The two main justifications for punishment, and the ones most relevant for pecuniary sanctions are retribution and deterrence. This chapter aim to theoretically assess day fines in light of these two justifications. Whereas day fines seem to fit well the deterrence goal, their legitimacy in light of the proportionality principle (mostly attributed to retribution) is less straight forward. A fine, which accounts not only for the severity of the offence, but also for the income of the offender, has a better potential to deter all criminals irrespective of their income. On the other hand, such fine might not seem to be proportional to the severity of the crime if also income is accounted for, thus not fulfilling the retribution goal. However, if looking more broadly on the principle of proportionality, one can see day fines are more proportional than fixed fines. The number of days is the element which needs to be proportionate to the severity of the offence. The daily unit, on the other hand, assures that the imposed punitive bite of the sanction is similar for all offenders irrespective of their income. In addition to this analysis, this chapter discusses the theoretically optimal model of day fines.
A pecuniary sanction is a widespread criminal penalty and it is hard to think of a jurisdiction that does not have some form of such punishment. The most common pecuniary penalty is undoubtedly the fine. However, when we think about fines, we normally think about the most standard model where the size of the fine mainly depends on the severity of the offence. We refer to those fines as fixed fines, even though they might have other names in different criminal justice systems (for example summary fines, lump sum fines). A common feature of this type of fines is that the financial state of the offender does not play a systematic role in its calculation. This is not to say that the financial information is completely irrelevant. Some jurisdictions require accounting for the offender’s income or wealth and more particularly his or her capacity to pay the fine when deciding on its size. However, there is no requirement to account for it systematically and usually there are no guidelines on how the financial capacity should be considered.
This chapter, based on the reviewed countries’ experiences, provides a comparative analysis of the day fines system in Europe. It seems that making the sentencing system more equal, and reducing short-term imprisonment, are common goals for countries to adopt day fines. Some countries can be rendered as a success in terms of the extent of implementing day fines and the ability to meet the desired goals. Nevertheless, as the experience of many other countries shows, there can be major challenges for day fines to be properly implemented. The main two challenges identified in this chapter are the complexity of calculating the fine, exacerbated by the frequent lack of guidelines, and a negative perception, derived mainly from lack of understanding of the system (by the public) and lack of support from the sentencers. In this chapter, we provide policy recommendations how to address these two specific challenges, as well as more general recommendations to expand the use of day fines. Given the multiple advantages day fines offer, it seems worth investing in its proper implementation. These recommendations may assist jurisdictions who already implement day fines, well as those interested in introducing this model into their criminal justice system
Day fines, as a pecuniary sanction, have a great potential to reduce inequality in the criminal sentencing system, as they impose the same relative punishment on all offenders irrespective of their income. Furthermore, with correct implementation, they can constitute an alternative sanction to the more repressive and not always efficient short-term prison sentences. Finally, by independently expressing in the sentence the severity and the income of the offender, day fines can increase uniformity and transparency of sentencing. Having this in mind, almost half of the European Union countries have adopted day fines in their criminal justice system. For the first time, this book makes their findings accessible to a wider international audience. Aimed at scholars, policy makers and criminal law practitioners, it provides an opportunity to learn about the theoretical advantages, the practical challenges, the successes and failures, and ways to improve.
Abstract: In recent decades, a new approach to regulations and compliance was developed to complement the traditional instruments, such as command-and-control and economic instruments. This approach is termed ‘nudging’ or ‘choice architecture’ as it proposes to design the environment in which individuals make choices, in order to promote welfare enhancing behaviour. By utilising insights from behavioural sciences, nudges direct people’s behaviour without limiting their choices. In this chapter, we explain the concept of ‘choice architecture’ and review specific ‘compliance nudges’ in both the public and the private spheres. These include – amongst others – nudges that promote tax compliance, guideline-compliant drugs prescribing, and timely loan and fee repayments. The reviewed nudges include salience nudges, which emphasise certain aspects of a choice to make people focus on it; moral suasion nudges, which make more visible the moral consequences of people’s decisions; and descriptive or injunctive social norms nudges, informing people what others are doing or believe should be done. Furthermore, we discuss the empirical literature demonstrating the effectiveness (or lack of it) of compliance nudges. Whilst it is not easy to compare the effectiveness and cost-effectiveness of these nudges across different fields of application, some conclusions are reached regarding the effectiveness of compliance nudges in general. Finally, we point out the limitations of nudging compliance, compared to the traditional tools, and present some thoughts on possible future developments. The area of nudging compliance has the potential to develop rapidly as technological advancements make compliance monitoring, and automated nudging, possible. Whilst nudging is a promising way forward in compliance, ethical questions remain about the proper extent of its use, and further research is required into the long-term effectiveness of this technique.
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