A Billionaire and a Nurse Shouldn’t Pay the Same Fine for Speeding

If Mark Zuckerberg and a janitor who works at Facebook’s headquarters each received a speeding ticket while driving home from work, they’d each owe the government the same amount of money. Mr. Zuckerberg wouldn’t bat an eye.

The janitor is another story.

For people living on the economic margins, even minor offenses can impose crushing financial obligations, trapping them in a cycle of debt and incarceration for nonpayment. In Ferguson, Mo., for example, a single $151 parking violation sent a black woman struggling with homelessness into a seven-year odyssey of court appearances, arrest warrants and jail time connected to her inability to pay.
Across America, one-size-fits-all fines are the norm, which I demonstrate in an article for the University of Chicago Law Review. Where judges do have wiggle room to choose the size of a fine, mandatory minimums and maximums often tie their hands. Some states even prohibit consideration of a person’s income. And when courts are allowed to take finances into account, they frequently fail to do so.

Other places have saner methods. Finland and Argentina, for example, have tailored fines to income for almost 100 years. The most common model, the “day fine,” scales sanctions to a person’s daily wage. A small offense like littering might cost a fraction of a day’s pay. A serious crime might swallow a month’s paycheck. Everyone pays the same proportion of their income.
For a justice system committed to treating like offenders alike, scaling fines to income is a matter of basic fairness. Making everyone pay the same sticker price is evenhanded on the surface, but only if you ignore the consequences of a fine on the life of the person paying. The flat fine threatens poor people with financial ruin while letting rich people break the law without meaningful repercussions. Equity requires punishment that is equally felt.
Flat fines also fail to meet basic goals of punishment, like retribution and deterrence. Punishment is partly an expression of a society’s desire to inflict pain on those who break the law. But giving wealthy offenders a mere slap on the wrist makes a mockery of that objective. And while punishment is supposed to prevent undesirable conduct from happening in the first place, flat fines deter the wealthy less than everyone else. Some evidence shows the rich are more likely to break the law while driving.
Plus, scaled fines might encourage more equitable prosecution. That’s particularly true in cities like Ferguson that went easy on wealthier residents but treated poor people like cash cows. After all, the city would get more bang for its buck pulling over a rich driver with a blown blinker.

For the poor, change can’t come soon enough. The problem isn’t just that low-level offenses like littering can impose insurmountable debts and destabilize lives. Serious crimes, where prison is on the table, also carry fines. As a result, those released from prison often carry debts far in excess of their annual incomes, complicating any hope of effective re-entry.

Progressive fines might even help address America’s addiction to incarceration. No one really thinks fines are an adequate substitute for prison. That’s because a fine high enough to punish wealthy people would devastate a poor person. But allowing fines to have real bite for everyone can make them a viable alternative to detention. After Germany moved toward income-based fines, the use of short-term prison sentences declined, even for crimes like larceny and assault.

Does this mean we should slap Mr. Zuckerberg with a $1 million speeding ticket? Finland would. In 2015, it handed a businessman a $67,000 speeding ticket for going 14 miles per hour above the limit. But the United States doesn’t need to go that far. Other countries typically cap the size of fines to guard against astronomical sanctions. We should do the same.
America’s limited experience with day fines suggests that making fines more progressive will work. In the late 1980s and early 1990s, a small number of areas, the first in Staten Island, experimented with this idea. That experience suggests that progressive fines could increase debt collection rates and reduce the attendant costs of nonpayment, like warrants, arrests and court appearances. Government revenue could even rise, all while the lowering the burden of criminal justice debt on the poor. Unfortunately, these experiments happened at precisely the wrong time, just as a wave of tough-on-crime sentiment washed over the country. Despite their successes, each was short lived.

This moment is different. Amid a flourishing national movement to reform our criminal justice system and tackle income inequality, the progressive fine is an idea whose time may finally have come.