Professor for criminal law, University of A Coruña, Spain
Adjunct professor, Queensland University of Technology, Australia
One of the most influential considerations on the courts’ attitude towards penal fines is their affordability for low income offenders. Access to money is unequally distributed between individuals in society. The unequal distribution of money puts a clear and definite limit on the fairness of tariff- and fixed-fine systems. If fines are set, they disproportionately affect those people whose income is limited. Since the end of the nineteenth century a system has been developed to subvert the inequality-inducing characteristic of the unequal distribution of money in society via the adaptation of the fine to the offender’s financial circumstances, but without the court taking a lenient view of the offence. It is called the day-fine system, usually known as the Scandinavian system.
The day-fine system (also called unit-fine system) is a form of calculating the amount of fines in order to equalize their impact on poor and rich offenders. In the day-fine system, the fine amount imposed is based on the seriousness of the offence as well as the offender’s ability to pay. The fine amount is arrived at through the application of a two-stage process. The number of days or units depends on the seriousness of the offence and the blameworthiness of the offender, usually between a minimum and a maximum. The amount of money to be paid every day depends of the offender’s ability to pay, also usually between a minimum and a maximum. The final amount is the result of the multiplication of the number of days of the first step by the amount of money to be paid every day of the second step. As a result, wealthy individuals are given a larger fine compared to poor individuals that committed exactly the same crime.
It must be highlighted that the need to consider the offender’s financial situation to determine the end amount of the fine concurs with other factors that are also taken into account, in particular the seriousness of the offence and the blameworthiness of the perpetrator. With the day-fine system the offender’s ability to pay the fine is the one and only aspect when setting the monetary value for the fine units – each one of them is a ‘day’ -, while the number of these units is selected according to the degree of punishment appropriate for the specific criminal behaviour. The basis of the day-fine system is this two-stage breakdown of the determination method.
In fact, the need to take the offender’s financial situation into account does not, per se, define the day-fine system, rather it is one of the methods of the so-called total amount fine system (Gesamtsummensystem), under the terms of which the judge imposes a specific amount basically resulting from the combination of two coordinates, the seriousness of the offence and the offender’s financial situation. The idea of determining the amount of the fine based on the greater or lesser wealth of the offender was already widespread during the Enlightenment. In The Rationale of Punishment (London: B. Dulau, 1811) Bentham had already pointed to the possibility of the amount of the fine taking into account ‘the fortune of the offender’, as well as the profit of the offence, the value of the thing which is the subject matter of the offence, and the amount of the injury. Specifically, he stated that in order to guarantee equality of impact the most appropriate way of proceeding was to establish a percentage of the offender’s wealth. Montesquieu, Blackstone, Filangieri, Pastoret, Ørsted, and others made similar assertions. But there was still a long way to go to establish the day-fine system.
The first doctrinal formulations of the day-fine system, defined in terms of the need to break the determination process of the fine down into two elements, are found at the end of the nineteenth century, almost simultaneously in Austria (Friedmann 1892: 148) and Italy (Bertola 1895: 10, 12). They share the idea of adopting a term of imprisonment as the basis for calculating the amount of the fine, in other words, as a means of determining the penalty, then, using a conversion method based on the offender’s financial situation, replacing each day of the penalty with a specific amount of money. This proposal, although based on a term of imprisonment, which, to a certain extent, blurred the autonomy of the fine, should, nevertheless, be considered as the first doctrinal formulation of the day-fine system. This occurred several years prior to the proposal made by Thyrén (1910: 75), who many mistakenly took to be the creator of this system.
Anyway, Thyrén’s work was undoubtedly the inspiration of the regulation adopted first in Europe in Finland in 1921, Sweden in 1931, and Denmark in 1939 – the reason why the day-fine system is also known as the ‘Scandinavian system’, even though after Finland two American countries, Peru in 1924 and Mexico in 1929, were the first adopters of the new system.
Finland, Sweden, and Denmark were the only European countries to introduce the day-fine system during the first half of the twentieth century. As Albrecht (2001: 306) pointed out, ‘the concept generated substantial controversy in all three Scandinavian countries, and was far from being unanimously supported’. Other countries, such as Germany, Austria, or Switzerland, made substantial revisions regarding fines during the 1920s and 1930s, in some case with excellent results in terms of reducing short-term prison sentences, but did not adopt the day-fine system. We have to wait until the last third of the twentieth century to see the expansion of the day-fine system in Western Europe. One can rightly talk about a turning point in the European criminal policy, similar to the one that in the eighteenth century produced the abandonment of corporal penalties and their substitution with imprisonment. But its origin was not Scandinavian.
Patricia Faraldo-Cabana is the author of ‘Who Dares Fine a Murderer? The Changing Meaning of Money and Fines in Western European Criminal Systems‘ (2016) 25(4) Social & Legal Studies 489-507. In 2012 she was awarded the Marie-Curie Fellowship by the European Research Council and in 2015 the Eurias Fellowship by the Freiburg Institute for Advanced Studies. She is currently working on a project entitled ‘Monetized Justice’ exploring the governmental rationalities behind the use of money sanctions.