By R. Barry Ruback. Full text here.
A consideration of economic sanctions must distinguish between the types and purposes of the different sanctions. Costs and fees refer to charges the offender must pay to reimburse the state for the administrative costs of operating the criminal justice system, although there is some variance in how the terms are used. Fines are monetary penalties imposed primarily as punishment for criminal behavior. Restitution is court-ordered payment to the victim for financial losses suffered as a result of the crime.
These different economic sanctions can be considered along dimensions of time (past orientation vs. future orientation), target (offender vs. victim vs. society), and impact (benefits and costs).
This examination suggests that costs and fees are the least defensible type of economic sanction because they impose real harms on offenders, have no benefits and possible costs for victims, and, net of all costs, are of little or no benefit to society. Fines are potentially more defensible than costs and fees, because they can be more directly tailored to the individual offender’s behavior and circumstances. Moreover, fines have potential value as intermediate sanctions in lieu of incarceration. Restitution to victims is the most defensible economic sanction because it can provide the tangible and psychological equity that are preconditions for restorative justice, which can be of benefit to victims, to offenders, and to society. Imposing, and then collecting, these economic sanctions is often problematic because of offenders’ inability to pay, the tradeoffs between the different types of economic sanctions, and practical problems of economic sanctions, especially when there are multiple crimes and multiple victims.
The paper then makes three arguments: (1) restitution should be mandatory; (2) costs and fees should not be imposed; and (3) judges should be able to impose fines, based on the offender’s ability to pay. Short of this dramatic change, three more realistic changes regarding restitution are recommended: (1) reducing the number of costs and fees, especially at the county level; (2) making payments easier; and (3) prioritizing financial obligations. The paper concludes by raising questions about the need for state-wide guidelines and by indicating the need for future research.