Law in Contemporary Society

Government Levied Fines Should Be Earmarked to Foreign Aid

-- By AlexAsen - 23 Feb 2010


"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Eighth Amendment, U.S. Constitution.

The Eighth Amendment contains a clearer prohibition on excessive fines, including civil and criminal forfeitures, than it does on excessive prison. Prison is expensive and this expense acts as a natural check on a cash-poor government. The founders understood fines, on the other hand, or a way to generate revenue -- the lifeblood of government -- and thus an unchecked government would be tempted to abuse its power to fine.

Do you have the slightest evidence for this proposition? I'd be very interested, because I think I know this literature well—as it is on the professional beat I walked as a legal historian for some decades—and I haven't. The Eighth Amendment is drawn directly from the English Bill of Rights of 1689, as you no doubt discovered in your researches. In this context, the prohibition of excessive fines had nothing to do with using fines to raise revenue; it concerned the use of what we might call "punitive damages" to destroy the fortunes of rich men, like Devonshire, who could be forced to compound with government for political support in return for remission of fines, and to secure the imprisonment of poor men—including thousands of Dissenters—by imposing civil damages too large for them to pay and imprisoning them on the resulting debt. These were the unconstitutional excesses of the reign of Charles II and James II that the Convention Parliament was making fundamental law to prevent future sovereigns from undertaking. As you no doubt found all this out, I'm surprised that even if you found someone who said somewhere that monies could be raised by fines to enrich the government, you decided that was the primary justification of a provision that you knew meant something else entirely in a context that remained plausible to the legislature that adopted the provision you're explaining.

Today, this fear of abuse has materialized despite the Eight Amendment.

Mistakes like this are a sign of using spell-check instead of proofreading. Everything you publish or distribute as a lawyer must be proofread. Start now.

Eliminating fines altogether would eliminate the perverse incentives they create, but we would also lose fines' positive attributes. There is a better solution: earmark all fines to foreign aid.

The Eighth Amendment would be relevant if there were any allegation here that fines are "excessive," on the basis of some justifiable definition of excessiveness. But no statement is ever made about excessiveness, and instead the argument is against fines per se. The constitutional argument, which was itself very defective, also turns out to be immaterial.

The scale of fines in America

In 2008, the Justice Department collected about $3 billion dollars in forfeited assets, a 40 percent jump from 2001. About half of this money is funneled from local law enforcement back and forth to the Feds to wash is of restrictions some states have put on how forfeiture money can be spent.

Not distinguishing between forfeitures and fines is now a series problem for you.

New York City, in 2008, collected $628 million in parking tickets alone.

Parking tickets aren't forfeitures, and they are only in the most formal sense fines. They are actually, in practice, what you call for later in this ill-assorted argument: licenses for illegal parking, paid as a cost of doing business primarily by organizations using the streets to make commercial deliveries.

Some drug task force budgets are independent of any town, county or state and rely completely on forfeitures. In Montgomery, Texas, the district attorney used forfeited money to buy an office margarita making machine. In civil forfeiture cases in parts of Indiana, counties are represented by private attorneys working on contingency and keeping a third of the verdicts they win. These facts come from here, the article is worth the read.

That depends on one's assessment of the editorial standards of Reason Magazine, which is a house organ for the Reason Foundation, a partisan think tank for "libertarian" causes. Those not part of the cult tend to treat Reason, on its track record, with great skepticism.

The positive attributes of fines

Fines are a constructive way for criminals to repay society. They are easy to administer and allow for punishment of minor offenses. Prison, the main alternative, is socially destructive. It deprives prisoners their freedom, families their comfort, and society their productive labor. It is also expensive.

This is an absurd way of describing the values of "fines," if by fines one means the levies for parking overtime, not returning one's library books, or misusing public parkland. Prison has nothing to do with the aim of policy in those settings, which traditionally tries to achieve instead a combination of mild behavioral deterrence and cost-recoupment from heavy users of public services. You find yourself constantly unable to address, throughout this essay, the minor matter of how road maintenance is paid for, etc.

The negative attributes of fines

Government craves money and citizens are loath to pay taxes. Fines help correct this imbalance, but in the process create a perverse incentive for government to make things illegal (or take money without evidence of a crime). Once government establishes fines as a revenue source, it is incentivized to stop critically thinking about whether the policy is socially beneficial. Citizens, in turn, loose respect for law enforcement and the sanctity of law.

This is all just libertarian preaching. It can be believed by people who are already convinced of the usual blend of rigid logic and utter insensitivity to complexities of social context that is the hallmark of libertarian analysis, but it wouldn't convince anyone who isn't already disposed to overlook its fundamental limitations.

The most glaring reflection of profit driven law is drug policy, but I am more personally affected by highway safety policy and fire hydrant policy.

Perfect. For a reader who isn't convinced, what the essay needed was a little touch of personal selfishness in order to be completely discredited. That this is all about you, and whether you are inconvenienced by the municipality's failure to provide you with enough free parking, will come as confirmation for the skeptical reader that there is neither editorial integrity nor political maturity on offer.

Earmark all fines to foreign aid

Earmarking fines to foreign aid separates the body that levied the fine from any direct benefit. Accordingly, government could consider the usefulness of fines unbiased from its desire for cash. Foreign aid is underfunded because while Americans want to give more than we do,

The sole evidence in support of this proposition is nine-year-old evidence from the top of the next-to-last boom based on a single meta-study conducted by an advocacy organization. It's inconsistent with the working understanding of practical politicians, which doesn't mean it's wrong but means it must be supported by strong evidence, while what you have presented is not in any real sense evidence at all.

aid does not find its way into Congressional budgets in close to the amount promised.

But of course money is fungible, and the failure to deliver promised foreign aid has nothing to do with an inability to find the cash.

That in addition this is nonsense in the federal setting, where the power of municipalities to decide how much you should pay for parking in an active driveway isn't assumable by the federal government, seems hardly to cross your mind. A law student might be held responsible for observing that federal authority could hardly decree that New York City parking tickets should be used instead to finance Israeli government purchases of cluster bombs.

Corporate Fines

Corporate activity is often policed with fines, but many corporations consider fines simply "the cost of doing business." Without the perverse incentive of personal and insituional gain, the government would have greater credibility assessing fines large enough to be deterrents. Of course, the perception that corporate fines are a tool to finance government coffers is low on the list of reasons why we do not have effective corporate oversight, so this possible benefit of my plan may not be sizable.

Replace lost revenue with fees

The UAE raised millions of dollars by auctioning off vanity license plates.

This was a comedy story even to the Walt Disney company, and you're making policy out of it? Did you bother to find out what the proceeds are from vanity-plate selling in New York State last year, or California, or even Virginia?

In a somewhat different vain, the government could sell license to speed or double park or even to use illegal drugs. Selling license for such activities would stop making criminals (and violators) out of average citizens who engage in the behavior anyway. Additionally, there could be an educational component of obtaining a license. (e.g. If you want to go 80mph instead of 65mph, sit in this simulator for an hour and see how long it takes a car to stop when the road is wet.)

Now we have reached the pinnacle of libertarian foolishness, and you are advocating the selling of licenses to increase harm to others by, for example, increasing others' physical peril by selling the privilege of dangerous driving to those narcissistic enough to pay. Once again, a skeptical reader gains confirmation that the point of view being expressed is not worthy of serious credence.

In America, we shy away from auctioning away rights because we do not like the idea of giving an advantage to the wealthy. Fines, however, already do this. The speeding ticket that is a week's wage for many Americans is an hour's wage for many CLS graduates -- leading to quite different deterrent effects for different classes. Licensing the led-footed wealthy to drive a little faster will not change their driving behavior, but it will change the transparency of the system.

This isn't responsive to the real arguments, because it is based on the absence of any recognition of mutual social responsibility. A reader similarly blinkered doesn't need the argument, which is then trivial, and a reader aware of the nature of the deficit is in no danger of giving the slightest weight to what's being said.

To maximize fairness, fees should be graduated. Other countries already do this. The base price for a license to do a given activity should be the social cost. In addition to the base price, there should be a premium based on what the buyer is willing to pay. Graduation based on wealth not income is more fair, but more difficult to calculate.

Where the social cost of injuring a poor person is also graduated to wealth, so that we can rationally insure everybody against the cost of having their loved ones killed by speeding motorists according both to the motorist's ability to pay the premiums and the value of the loved ones destroyed?


Logistically and politically this will be an impossible change to implement as suggested. However, the core ideas, (1) government should levy fines, (2) when fines are used to supplement budgets abuse happens, and (3) there are better, more transparent way to raise revenue, are implantable in small steps at all levels of government. The first steps are to think critically and creatively.

The way to think creatively about the improvement of this essay would be by imagining the existence of people who don't agree with the premises, and deciding how to talk to them. The effect of making the imaginative leap to a world in which others actually exist in a web of social relationships that is not capable of being described in terms of rational choices made by independent individuals will be extremely productive.



Webs Webs

r8 - 13 Jan 2012 - 23:14:06 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM