To combat the significant number of low level cases being sentenced to short periods of incarceration, Germany increased their use of fines, shortly thereafter adopting day fines to ensure that fines were equally and transparently assessed. Day fines is a sentencing structure in which the fine for an offense is set according to both the person’s financial circumstances –the daily rate or amount the person is able to pay– and the nature of the offense– the number of days a person is required to pay the daily rate. Currently one of the largest countries that uses day fines, Germany relies on day fines as the sole sanction in 84 percent of its criminal sentences. Interviewing over 50 judges and prosecutors in 8 jurisdictions, over the course of one year, the Criminal Justice Policy Program at Harvard Law School studied the use of day fines in practice including, daily rate determinations and the requirement to consider ability to pay at sentencing in every case. Researchers conclude that the effectiveness of day fines depends on the structure of the system and the culture amongst system actors.
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- Germany’s failure to deduct reasonable living expenses results in fines that may not be payable.
- Fines are high in Germany despite decisionmakers’ support for day fines and belief in the necessity of considering ability to pay before sentencing, likely due to a misunderstanding of poverty and disbelief that anyone truly could not afford to pay.
- In Germany, judges rely on self reported financial information on a police intake form or at trial and do not require documentation, accepting small inaccuracies as normal and acceptable.
- In 2018, 42% of all cases sentenced to day fines received less than 30 units and another 49% were sentenced to between 31 and 90 units. (In Germany, most criminal statutes that define an offense provide for broad punishment ranges, measured in units or days, and the option for the court to sentence the offense to either fines or prison.)
- Fare evasion and low level theft, crimes of poverty, accounted for 25% of day fine sentences in 2018.
Using the lessons learned from Germany, the authors recommend the following steps for considering the implementation of day fines in the United States:
- Bring together diverse stakeholders to study day fines and determine whether they are appropriate to resolve the issue the jurisdiction is facing.
- Conduct further analysis to assess whether day fines may keep the jurisdiction reliant on monetary sanctions revenue.
- Convene community groups to assess their opinions of day fines and survey the political climate amongst system actors.
- Identify and address legal barriers to implementing day fines, such as mandatory fines and fees, statutory minimums and maximums for fines and fees, and other barriers.
- Consider other ability to pay reforms options.
- Determine which level of government (state or local) will implement day fines and how widely they will be implemented.
- Create a Sentencing Commission to design day fines and develop strong policies based on the standards.