Lecture 5: Punishment and Money

Lecture 5 Punishment and Money 3/03/2020 Fines = most common form of punishment, given for low level, common crime (driving offences ect) Used increasingly but theorisation of their use is poor – lack of research ect Increasing importance of money in developing civilization – money as a reward (job, funding ect) so also makes sense that as a form of punishment it is taken away Fines – speeding, parking, littering, not paying council tax, driving in a bus lane, Features of fines as punishment: • • • • Fungible (or undifferentiated): Money as mutually interchangeable – pound for a pound. Difficult to establish who money belongs to – court and public are not concerned with who pays the fine, it just has to be paid – not always the offender who pays! Cheap to administer, even more so for civil fines Enduring: Transferred from person to person, no end to the function of fines as a tool of punishment (Money received in a wage, money paid to cover a fine – same money)so origin is hard to trace Monetised Societies: Central to society. Monetisation of justice? Culture Meaning (s): Mentalities and sensibilities. Meaning of money in relation to its use as a fine. Particular meaning in particular context – hence why fines are satisfactory for some offences but not others. Take it for granted attitude towards money explains why it is ignored from a theoretical perspective. ‘Medium of exchange’ Types of monetary punishment: Use of penal fines – what does this say about our society/CJS when we use fines in such a persistent way. Out of court – penalty notices for disorder (PIDs) – introduced by CJPA – offer police officers a quick and effective way of dealing with low level/antisocial/nuisance offending eg. Alcohol related, occurring in city centres. Removes offenders from the court system, less paperwork, frees PO’s up. Fixed penalty notice from 60-90 pounds. If offence is too serious, fine cannot be given. Also, cannot be given to under 18s. Upper tier (£90) – haux calling, use of fireworks, drunk and disorderly, selling alcohol to an intoxicated person, supply of alcohol to minors, possession of a controlled drug Lower tier (£60) – Trespassing on railway, drunk on a highway, disposing of litter, alcohol related offenes Fixed penalty notices – FNP eg. Unauthorised parking – can pay online, must pay within 28 days or 50% more. Administrative alternative to prosecution. Notice on the spot/through the post (don’t know you’ve committed offence until receive). If you challenge the guilt, higher risk you will appear in court. Court disposals: Fines. Punish all offenders, max one imposed by magistrates defined by terms of level: 1: 200 2: 500 3: 1000 4: 2500 5: Unlimited Crown court fines in unlimited amounts. Can fine an individual, a company or an organisation. Compensation Order: Identifiable victim (death, injury, loss, damage). Compensation orders will be given, can also be made in addition to any other sentence or can be a sole order. Required to have regard to the means of the offender when deciding to make a CO. Seriousness of Offence and Finances of the person: - Seperation of seriousness and financial means criticised – fines did not reflect the seriousness of the offence but the means of the offender. Fines replacing community sentences? Current sentencing guidelines say fine should reflect seriousness of offence – also taking into account financial circumstances of the offender, regardless as to whether it increases or decreases the fine Aim of a fine is to have equal impact on all offenders despite financial situation – yet should not force them below a reasonable subsistence level Should be capable of being paid within 12m Court should exercise judgement and ensure the fine properly relfects the offence Ant – 86k for drink driving Out of court disposals: - - Decreasing – yet rate of decline has slowed down, but large fall in amount of cannabis fines Initial review of PID – replaced cautions, but also led to a new type of business – used where nothing previously would’ve been used, net has widened – specifically when targeting a particular problem area (hotspot policing) Different forces show a flexibility in the use of PID’s PO’s felt PID’s give them opportunity to deal with low level offences in a more sufficient way than other time-consuming methods Do they reduce disorderly behaviour? No evidence – simply considered to be successful based on quantity of use Use of powers relating to PID’s expansive – little protection afforded to the person in question Softer option? Way for offenders to avoid court. Do not operate in an equal way (hotspot policing – certain communities targeted more than others) – those that cannot afford will ultimately be punished more harshly Flat rate = unjust How many fines? - Most common sentence – 76% of all offenders being sentenced 2019 – figure went up to 79% Case in most countries Almost all sanctions against corporations are financial sanctions Given for common, lower level crimes – explains popularity? Predominant form of punishment in some countries Critique of fines: • • • Easy to administer? Cost effective? Do they get paid? Female offenders more likely to pay than male offenders, yet difference in payment rate is minor • Who pays them? One criminal penalty where offender doesn’t have to pay – court pays no attention to who pays the crime. O’Malley: Punishment is aim of CJS, majority of fine cases = no punishment, not traceable. • Offender presence and visibility of punishment: Offenders don’t have to be present to receive, some are totally anonymous, not all fines given by judges – invisible punishment, outside of traditional sentencing frameworks Does money have a meaning?: Simmel: Abstract, little political significance, no loss of liberty. Zelizer: Money is a feature of modern life, impossible to not have diverse and many meanings – infiltrates so many aspects of modern life. • Punishment isn’t operated through fines – more effort would have to be put in to ensure offender pays the fine – nor do they focus on the past/future – used to shape risky individuals – may be less likely to take a risk if you’re being penalised for it Historical development of fines: - Pre 19th century - fine was the predominant sanction (but small amount)- proportionate – poverty was not a barrier but placed a limit on the size of fines 19th Century - fine as marginal sanctions (1870 about 10% of sentences) declined alongside increased use of prison 1914 - payment by instalments introduced Post WW2 - major increase in use of fines – recognition of inadequacy of short term prison sentence 1970s - over 50% of adult offenders convicted of indictable offences were fined 1980s- use of fines tailed off - other non-custodial and custody rose Current - around 70% of adult offenders convicted of indictable offences receive fines 20th /21st century – emergence of consumer society explains shift towards more fines – how we view money has changed. New technology helps this. The Modern Fine - - - Rise in use of cars created new pressures on justice – increased pressure on CJS dealing with breaches of RT law. Initially were primarily driven by the wealthy, fines were appropriate sanction – reluctant to convict ‘gentleman’. Volume of fines increased, more important that they were administrative, didn’t take up too much time. No association with imprisonment Bottoms (1983) – a fine divorced from the possibility of imprisonment in default – regulatory, not based on discipline but regulating risk inducing behaviors – you pay for the risk created by behaving in such a manner Discount if paid early, fee if paid late Fines and Risk: Why has the fine increased ect – how has this been theorised? - O’Malley 2009: Ties between risk, new technologies and money. Use of fines as a risk based system. eg. Driving offences, use of fines to address misbehaviour – reducing harmful risks. Money is an accepted part of everyday life – yet limits to the acceptibility of money to reduce risk. Speeding v risk of death or injury – for the latter, fines wouldn’t be enough – too high of a risk to be given monetary value, should be other kinds of sanction. EG: Driving ban, if you drive this is met with a threat of imprisonment – fine becomes punitative – punishes the behaviour, doesn’t reduce risk Risk management where those who can afford can buy freedom, those that cannot pay end up in prison – managing specific groups VIDEO: Justice being reshaped by risk based justice? Once we look away from courts/prison, and look at mundane levels of justice: primarily to do with regulation of traffic – we find justice looks different. Eg. Regulation of drink driving – risk based offence – having blood alcohol content above a certain level, displaced the dangerousness and possibility of an accident. Strict liability – once you’re over the limit, no room for mitigation/aggravation – risk based jurisprudence underlies this. Risk based sanction – license suspension impacts the dividual (the driver – not them as an individual). Speeding: Has become the archetype of mass preventative justice – prior to 60s, big debate about why speeding should be an offence at all, people argued ‘dangerous driving’ should cover this. Why have speeding as an offence outside of this? Lively debate. Risk discourse starts to emerge – driven by democratisation of driving, car ownership massified – increase = increase in accidents. Speeding now becomes something defined in terms of risk, higher the speed the higher the risk – hence, the greater the punishment. Certain speeds are automatically dangerous driving. Mass disobedience associated with speeding and traffic. Huge numbers generate new problems of governance – it has to be governed, essential to national/individual safety – but how can such huge nos be governed? Done through 3 techologies – risk, e-technologies and money. Risk has allowed a calculable morality to emerge – different levels of risk represent different levels of offence. Speeding involves electronic surveillance – speed cameras, mobile speed units ect. Process of justice/policing occurs in a virtual environment. Money – digitizable sanction. Doesn’t have to be paid by the wrongdoer – distribution of harms and risk – anyone can pay the fine. Money allows for anonymity of payment, but shows how we shift from individual basis of justice to a mass basis of justice – dividuals and their behaviours. - Deleuze (1992) and the ‘Dividual’ Analysis of how we are controlled by technologies. Opposes the dividiual to the individual – individual is indivisible – yet through tech this is translated into algorithms – you become a dividual, and the dividiual is endlessly divisible and reducible to data representation. Technologies of disciplinary societies being replaced with tech of a different type – cctv, computer monitoring software ect – scrutinize our movements and interactions. Use and abuse of technologies of control. So, tech opens closed doors that can just as easily be shut down – we’re freer by accessing much more, yet this can be turned against us. Data gathered on us does not necessarily reflect our uniqueness – used against us to mark us as dividiual rather than a group of individuals ‘The numerical language of control is made of codes that mark access to information, or reject it. [....] Individuals have become 'dividuals' and masses [have become] samples, data, markets, or 'banks.' Justice, in light of the monitization of society, has become much more virtual and harder to grasp - Bottoms (1983) – preventative social control systems backed up by the fine: not disciplinary, but regulatory. Fines and Marxist Explanations: - R+K (1939): Punishment cannot be understood by its ends alone ‘the poorer the population of the country, the less frequent is the use of fines for offences characteristics of the great mass of the people’ Fines increased in line with increase of living standards and decrease in poverty – O’Malley criticises this, their argument is not reflected in data – actually increasingly used in the 19c + the depression – more so against poorer people. Fines arent linked to poverty but to how much it costs to implement – fiscal determinants Further thoughts on fines: • Bentham (1820’s) Pecuniary sanctions (fines) as the ideally liberal form of punishment – no physical coercion, completely reversible • Foucault (1972) Fines declined due to the rise of the disciplinary prison. Disciplinary power of fine? Know you’re being watched by traffic cameras for example – regulatory type of power. New technologies – better and more efficient surveillance • Durkheim: Social solidarity between tax payers, reaffirms bonds around the importance of money – solidarity becoming monetized? Fines and Female Offenders: - Roberts (2017) on Wacquant Women more likely to be pushed into precarious work (illegal market) – which in itself leads to more job insecurity. Social welfare and penal policies work in tandem – decrease in welfare leads to increase in prisonfare, women more reliant on workfare Debts & TV fines – women more likely to be prosecuted for evasion of TV license – consequences of non-payment Non payment of fines: reject a FPN = summons, to which you plea guilty or elect to go to court – may then be given a larger fine and legal fees. If you accept and then fail to pay, increased by 50%, then for the court to enforce and can issue warrant for arrest upon failure to respond Fines in the USA: Becket and Harris (2011) - Judges have the ability to impose fines at their discretion and can be influenced by prejudice – eg. ethnicity. Substantial fines, not related to D’s income – impact on reintegration - Not incapacitative or rehabilitative – difficult to square with the objectives of penality? The legal debt continues to cumulative disadvantage – may lead to further offending More likely to impact partners/children of offenders, run alongside other sentences