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Criminal fines are monetary penalties paid to the state by offenders (Hillsman 1992). This sanction has several advantages over other types of penalties (Hillsman 1988; Zender 2004: 206). For one, it incorporates the penal functions of retribution, deterrence, and rehabilitation (Ashworth 2000). In addition, the amount of the fine can be tailored to the seriousness of the particular crime and to the specific individual’s criminal history and resources (Uglow 1995). Furthermore, it allows the offender to remain in the community, maintain economic and social bonds (Radzinowicz and Hood 1996), and avoid secondary effects of incarceration, such as loss of employment and forcing dependents to rely on public assistance (Ruback and Bergstorm 2006). Moreover, the criminal fine is inexpensive to administer and can be enforced by existing criminal agencies (Klein 1998). Finally, criminal fines provide income for the state (Einat 2008).

Accordingly, it shouldn’t be a surprise that the criminal fine has become practically one of the most important and frequently ordered sanction by many Western and non-Western criminal and civil courts. In some cases, it has even been accorded statutory priority over short imprisonment (Grebing 1982).

Curiously, despite the importance and frequent use of the criminal fine, little theoretical, empirical, and critical attention has been paid by modern criminology and sociolegal disciplines to its nature, underlying rationale, characteristics, and historical development (O’Malley 2009). Nonetheless, due to the relatively high number of historical, sociolegal, and criminological variables affecting the development, usage, enforcement, and impact of the criminal fine (Einat 2004 ; O’Malley 2009; Weisburd et al. 2008) as well as their complexity, the current review will incorporate only a few of them. A comprehensive review and analysis of such variables and aspects should, however, be the subject of a separate work.

Historical Development Of The Criminal Fine

Monetary sanctions were known in a basic form to various ancient cultures that had passed through the stage of self-help and of private and blood vengeance while retaining the underlying principles of retaliation (lex talionis; talion). The purely material talion, namely, revenge through harm of equal severity, was restricted in favor of a discharge of the talion through the payment of money and through the performance of services having a monetary value. Such discharge corresponding with the developing notion of equivalence associated with barter and sale. Thus, monetary sanctions became the most common punishments in the early days of many states. Even if the compensatory character of these payments was to some extent still predominant, there were, however, cases of authentic fines.

For example, according to the criminal law of Hammurabi (2250 BC), stealing was punished by payment of five times the value of the stolen object. In the case of theft of domestic animals, the sanction amounted to the tenfold value, and in cases of theft of royal property or temple, the penalty extended to thirty times of the value.

This exponentiation principle frequently characterized other, less ancient, criminal law systems: The laws of Manu in India (1200–500 BC) prescribed numerous fines and also provided for confiscation. Offenders, unable to pay their fines, could have discharged their duties to pay through the performance of services, thus becoming “slaves of their punishment.” In Egypt, fines and confiscation were imposed for a variety of offenses, viewable as “breaches of public order,” often, to the point of abuse. Under Mosaic law, monetary sanctions served the purpose of satisfying and compensating the victim. These penalties were either calculated in accordance with the exponentiation principle and in proportion to the harm caused or fixed by law. Following the exponentiation principle, the amount of monetary penalties was two to five times in cases of fraud, breach of trust, or theft. Additionally, offenses against the person could have been sanctioned by monetary sanctions, thus avoiding vengeance. Under Greek law, monetary sanctions appeared as original punishments and played a significant part in relief from severe punishment. In this manner, maliciousness, disregard of official duties, insult, and rape were punishable per se with monetary payments, either to the state or to the victim. Finally, monetary sanctions were of significant importance in Roman law: The monetary penalty went as Multa into the public pursue and as Poena to the injured party. Monetary sanctions imposed against offenses of property were a multiple or quadruple of the value of the harm caused. Capital punishment was accompanied by full or partial confiscation of property, which, being a source of revenue, later served the state well.

Germanic law exerted a special influence on the genesis of the criminal fine in Europe. It gradually restricted the dispute over the right of revenge in favor of compensation through performance of valuable services. Furthermore, an arrangement system was developed with different types of penalty. With the emergence of state administration of criminal justice, monetary sanctions finally lost their compensatory character and took the form of actual fines in most countries.

The Criminal Fine In The Modern Era

The criminal fine has not followed a stable and continual course in its development down to the present day, but has been subject to two major turning points.

The first crossroad came around the thirteenth century, with the development of severe form of physical punishment, which limited the imposition of fines to the domain of petty offenses and breaches of public order. Nonetheless, relief from such harsh sanctions was possible through the payment of fines.

The second decisive moment came around the beginning of the nineteenth century with a considerable growth in the importance of the fine, due to its appreciation by the authorities as a source of revenue, successive decline in the severity of physical punishment, and the fact that prisons were not generalized institutions for punishment (King 1996). Oddly, and in contrast to the legal discourse, these historical processes brought the fine into complete discredit in all Western European countries. The fine was generally regarded as a mediocre penalty, customarily imposed against misdemeanors, breaching of public order, greediness, and petty offenses (Briggs et al. 1996; Seagle 1948). For example, in seventeenth-century England, the criminal fine was frequent and typically light, usually from a few pence to a few shillings. The reason why fines were so small was that they were imposed on ordinary working people, people whose incomes and resources were minimal (Briggs et al. 1996). Between 1760 and 1820, close to 80 % of convictions in England resulted in the imposition of a fine, most frequently of only small amounts of up to a shilling (King 1996). Simultaneously, the proportion of offenders fined in England for assault drop from nearly 80 % to only 26 % (King 1996: 48–50). Corresponding with this, the proportion imprisoned (mainly for short terms) rose from less than 4 % to over 50 % (Ibid.). In short, between the thirteenth century and the nineteenth century, criminal fines were a default sanction for minor offenses, and short terms of imprisonment temporarily displaced them from their historically ancient dominancy.

Crucial international and national reconsideration of the criminal fine in most modern Western sanctioning systems occurred at the last third of the nineteenth century, mainly due to the strong criticism razed against the ineffectiveness of short-term imprisonment (Grebing 1982). The short prison term was seen to have neither reformative nor deterrent effects and was criticized for having extremely harmful, stigmatizing, and criminogenic effects, especially on first and occasional offenders. Garofalo (1885/1968), for example, argued that imprisonment for first and minor offenders was pointless because “if the occasion has been an exceptional one, if there is little likelihood of its future occurrence, there is no need of employing any means of elimination” (226). Furthermore, short-term imprisonment was perceived as costly to the family and administratively burdening. This criticism was fortitude by additional claim suggesting that short terms of imprisonment convert casual offenders into confirmed criminals (O’Malley 2009). Leading criminologists at that time – Garofalo, Rosenfeld, Walberg, Von Liszt, and Bonnevile De Marsangy – argued strongly for the abolition or, at the very least, general restriction of short-term imprisonment and for the fine’s restitution. Their disapproval of short-term imprisonment and their view that the criminal fine could be used as substitutes for such sanction found ready acceptance in various European and Scandinavian countries. Movements and fights against short-term imprisonment were held in England, Italy, and Austria by leading academic criminal lawyers. In the Netherlands and Belgium, Prins Van Hamel propagated the program of the modern school of criminal law – pushing to the elimination of short-time imprisonment and the extensive use of fine and conditional sentencing. In addition, the problems arising from short imprisonment and the question of its replacement by fines (or other alternatives to imprisonment) appeared repeatedly on the agendas of international congresses. For example, the International Penitentiary Congress, held in London in 1872, in Rome in 1885, and in St. Petersburg in 1890, as well as the meeting of the IKV in Brussels in 1889 and in Oslo in 1891, dealt with the question of avoiding both short imprisonment and imprisonment in default of payment through the imposition of noncustodial forced labor, judicial reprimands, and suspended sentences.

Though the criticism against short terms of imprisonment and the significance of the criminal fine were well understood in principal by academicians, philosophers, lawyers, and several sanctioning systems, fines could not be installed to any degree in all European jurisdictions before the end of the nineteenth century, because of the extent of unemployment and poverty (Rusche and Kirchheimer 1939).

As of the end of the nineteenth century and into the twentieth century, due to increase in employment and real living standards that provided the conditions under which the fine could have become a more generally applied sanction (Rusche and Kirchheimer 1939), many European countries, legally and practically, began restricting the use of short-term imprisonment replacing it by criminal fines and suspended sentences (Grebing 1982). For example, in Germany, between 1882 and 1932, the percentage fined increased steadily from 11 to 47.5 %, having peaked at 50.5 % in 1930 (Rusche and Kirchheimer 1939: 167). Over the same period, the proportions sentenced to terms of over 3 months imprisonment remained stable, indicating that short periods of imprisonment were being substituted by fines (O’Malley 2009: 38). On the basis of rather thin evidence, Rusche and Kirchheimer (1939) concluded that “.. .In general therefore the application of fines in the first half of the nineteenth century was infrequent because the necessity of commuting the punishment into imprisonment would have unduly complicated criminal procedure.. .The decline in unemployment and the rising living standard in the second half of the nineteenth century, however, introduced a fundamental change.. .many of the difficulties lying in the way of a fine system lost their force” (168). Four decades later (1969 and 1975), the Federal Republic of Germany passed the first and second (respectively) criminal law reform acts declaring that short imprisonment under 6 months is to be the last solution and the fine was given statutory priority in this sanctioning area. Similarly, the Austrian and Brazilian legislatures followed this example and passed the rule that the fine must take precedence over a short prison term. Other countries such as Belgium, the Netherlands, Switzerland, Denmark, Norway, Finland, and Sweden pursued the objective of restricting short-term imprisonment – mainly through the imposition of fines and suspended sentences. Nonetheless, these countries have neither enacted a statutory minimum term of imprisonment nor introduced a priority in the selection of penalties in favor of the fine. Consequently, in spite of a noticeably large number of fines imposed, they exhibited (and still exhibit) a vast proportion of short-term imprisonment sentences especially in regard to medium-range crimes.

In contrast to the legislative and sanctioning policies mentioned above, the criminal fine was perceived negatively by several East European jurisdictions during the post-revolutionary years (Grebing 1982). It was regarded as inferior to reformative sanctions and, thus, almost completely neglected from many East European criminal codes. In this manner, the criminal fine was omitted from the leading principles of the 1919 Soviet Union criminal legislation, displaced by short periods of “correctional labor.”

During the 1920s, the criminal fine tiptoed back only for a few trivial and financial-oriented offenses. This remained true until the late 1980s (O’Malley 2009) where fines seen as incompatible with some of the basic ideological premises of socialism. It was maintained that the fine was a criminal measure typical of the capitalist system in which everything, even the criminal justice system, was profit oriented. Consequently, fines made up only about 3–4 % of sanctions in the USSR, about 5 % in Czechoslovakia, about 10% in Bulgaria, and 18 % in Poland (Frankowski and Zelinska 1983: 39).

While in most East European socialistic jurisdictions the fine “was held in considerably bad scent” (O’Malley 2009: 35), it could have been logically presumed that the United States, one of the most capitalist and wealthiest of nations that glorifies market processes, would be devoted to imposing fines for criminal offenses (Ibid.). In practice, this assumption appears to be and to have been solely true as regards to punishment against businesses and corporations. Individual offenders were hardly punished by criminal fines, and the few who had were usually fined due to petty financial-oriented crimes. For example, in the 1950s, over 90 % of antitrust violations and offenses against labor standards legislation, and almost the same proportion of offenses against food and drug legislation, were sanctioned by fines at the federal level. Nonetheless, when the focus shifted to assault, the proportion sanctioned by fines dropped dramatically to 10 %; in the case of theft dropped to only 4 %; and with juvenile delinquency dropped to a less than a 1/3 % (The University of Pennsylvania Law Review 1953). Furthermore, a broad repertoire of offenses attracting criminal fines more than half the time in Britain and more than three quarters of the time in Germany attracted sentences of fines in only 5 % of cases in USA at the federal level (Gillespie 1981). Even by the mid-2000s, at the federal US level, only 4 % of all offenders were ordered to pay a criminal fine (only 3.5 % received a sole fine), and this was true for only 1 % of those convicted of felonies. In addition, the proportion fined for misdemeanors was 29 %. In comparison, criminal fines were imposed in the same years against nearly 25 % of all criminal offenses in England and Wales (Home Office 2002) and against 70 % of offenders accused for misdemeanors. Lastly, at the state level, the criminal fine has hardly been used as the sole sentence in relation to felonies but was employed as an additional sanction in about 25 % of all cases – most frequently as an add-on to a sentence of imprisonment (Bureau of Justice Statistics 2004). Some states (e.g., Philadelphia) and federal guidelines explicitly limit the criminal fine to a supplemental role, something to be imposed in addition to the real sentence.

The practice of fines in America, both in federal and in state levels, thus suggests that the criminal fine has been losing ground over the past decade. In contrast to Europe where criminal fines increased in proportion and in money value precisely at the time they came to be regarded as a replacement for short periods of imprisonment, short terms of imprisonment did not decline in the United States in the same way (O’Malley 2009). Fines in the United States were not seen as comparable to short periods of incarceration and, consequently, did not attract significant penalties in dollar value. Hypothetically, this existing pattern stems either from the United States high commitment to the “Toughon-Crime” punitive agenda and low commitment to reform – leading approximately 75 % of all sentenced offenders at the federal level to imprisonment (Bureau of Justice Statistics 2004) – or from doubts as to the correctional and/or rehabilitative value of the fine (American Bar Association 1971; The National Commission on Reform of Federal Criminal Laws 1971).

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