It is a virtual impossibility to place a definitive monetary value on something so arbitrary and personal as a criminal offence. Different crimes will inevitably have different impacts on different people, not only as a result of the rather simple idea that certain crimes can be more detrimental to the human mind than others, especially in regard to sexual offences, but also as a result of the more complex issue of individual perception. A victim’s experience of crime and the personal damage arising from it for the victim is inevitably different in each and every case, and thereby one that invariably consists of an equally arbitrary value and impact. The unique perceptions of individual events and the resultant personal consequences of them are virtually always, in some capacity, influenced or determined to some extent by other overriding and influencing factors, ranging from things so simple and inherent to everyday life as cultural values to more removed factors like upbringings or locality, thereby influencing the perceived retributory value needed. Thus, one could only logically conclude that, even attempting to place a blanket, one-size-fits-all, monetary cost and punishment on the consequences of a given crime in isolation, not only on the individual but also taking into account the ramifications on the wider society, would be near impossible, no? To do so, one must first explore how we, as a justice system, begin to devise and implement monetary retributory measures as a deterrent to and punishment of crime.
It is, at the most basic level of economic theory, a fundamental prerequisite of money that it acts as a means of exchange in an economy and that it acts as an, at least domestically, universal, and continuous store of value. It eliminates the need in society for bartering by acting as a universally accepted medium or vehicle for value, trade, and any other form of exchange, be it in either a social or commercial context. Therefore, with money acting as a store of value and having essentially equal value for each and every person, although one can of course examine the regressive line of argument whereby fixed fines take up a proportionately larger portion of discretionary income of the least well-off in society, money can also, by that logic, be used as a means of retribution and compensation. In civil law, money, with fines and compensatory damages being the most common form, is the primary medium of punishment for those found to be liable in proceedings. This form of retributory, redistributive justice works well in the civil context, as typically, the nature of the loss incurred in a civil breach is that of a monetary nature and, for the most part, wholly physical, although of course one is not to disregard the importance of civil law in governing injuries incurred while one is under a duty of care. One of the traditional, archetypal disputes faced by the civil courts is that when the defendant is in breach of a contractual agreement, from which any form of economic loss or detriment arises, typically with a loss of income or damage to property. This means that, in a large majority of civil cases, the outcome of civil proceedings, where the defendant is held to be liable, can be resolved through the simple payment of compensatory damages to the claimant, summing up the exact losses incurred as a result of the defendant’s ill-action. Although, of course, this is a rather typical outcome of civil proceedings, one must also still recognise the importance of other means of remedy that the civil courts have at their disposal, namely injunctions.
However, when one starts to extrapolate this same ethos to criminal law, they are presented with a rather precarious predicament: firstly, how can one begin to establish the monetary value of the damage incurred following the perpetration of a crime, and secondly, how is one to then extract and distribute this compensation? Civil and criminal proceedings both aim to achieve fundamentally different objectives. While both of course seek to achieve and preserve just and equitable outcomes, the final outcome of this and, more importantly, the means by which they pursue to achieve this differ drastically. Rather than monetary punishment, criminal law typically seeks the custodial alternative as its primary means of both punishing defendants and retributing victims. In conjunction with said custodial sentences, monetary punishments can also be used, though more as a secondary deterrent and means of punishment, with fines being issued for those held guilty for committing more minor offences. Almost always, fines will be employed as a lesser means of punishment, while custodial sentences are used, logically, as a more serious means of punishment. For example, with reckless driving, a fairly criminal breach in and of itself, minor breaches tend to come with merely a fine as the sole punishment. These fines are, in theory at least, unlimited in their value, with the charge being placed at the discretion of the judge at sentencing, except in magistrates courts where the standard limit of £5,000 is applied. While there is no fixed limit on the value of the fine that may be issued, typically minor offences only come with an accordingly small fine and perhaps a few points on the offender’s driving licence. However, for larger breaches where immensely reckless driving is of concern, these criminal breaches are likely to come with a rather substantial fine indeed, again of unlimited value, though capped at £5,000 in the Magistrate’s Court, and/or a custodial sentence of up to 5 years in term. Therefore, one can plainly see how our judicial system seeks to interface both monetary and non-monetary means of punishment as a means of both discouraging and punishing crimes once committed, with these punishments also serving to fulfil one of the fundaments of justice as a concept in providing those affected with a sense of retribution.
Having established the role that monetary reparation plays in our judicial system, this leads one to ask, how much is a crime worth? Who gets to decide how much a crime is worth? As with most other means of judicial punishment, the appropriate size of the fine or length of the sentence awarded to an offender is decided by a judge using the guidance presented in the relevant parliamentary statute or precedent. It is then up to said judges and magistrates to both interpret and then apply these guidelines, and therefore the value of fines issued, to individual contexts and cases. But how does one come to the figures averred in legislation and precedent previously? The answer, surprisingly, is an arbitrary one once again and simply a result of the legislator’s relative perception of the individual and social impact of a crime. This is then, through whatever means deemed correct by the legislator, translated arbitrarily to become the value of a crime, and therefore becomes the maximum value of the fine permitted in the precedent or legislation.
However, while it is of course important to consider how fines work, who creates them, and how they’re implemented, one also needs to assess, arguably the most pervasive issue of all, whether said fines do in fact provide justice to those a party. How can one possibly come to the conclusion that a one-size-fits-all financial penalty is befitting of a crime that will invariably have substantially different consequences for each and every person affected? Further still, one must also consider perhaps a more pertinent debate still: whether financial retribution is even a remotely adequate or sufficient form of compensation for physical and emotional trauma and suffering. Many would contend that, in fact, monetary forms of compensation can never, in absolutely zero circumstances, translate to the incredibly fragile realm of human psychological and psychiatric health, rendering financial punishment an entirely insufficient and, by some schools of thought, worthless form of compensation. Take the summary offence of battery, for example. Battery is an act protected under Section 39 of the Criminal Justice Act 1988 and, as a summary offence, can only be tried in the Magistrate’s Court. This means that the maximum sentence for such an offence is a meagre six month imprisonment and/or a £5,000 fine. Thus, one must now ask themselves, is it just that the physical and emotional detriment suffered by a victim as a result of the battery, both the potential long-term psychological suffering of the victim but also the secondary, external costs, with, for example, the resources expended by the NHS in treating the victim, be valued at a mere £5,000? Who are we to put a price on a victim’s unique and ineffable experience of suffering? Surely the protection of our peers is of utmost importance to our justice system, with a fine of merely £5,000 failing to suffice in this facet, even when one is to consider the complementary issuance of a 6-month custodial sentence. Each person’s reaction and experience following their victimisation will invariably differ, and thus, placing an arbitrary monetary price on said suffering can be concluded to be simply an ineffective, ineffectual, and inequitable means of punishment.
However, while one must take into account the theoretical implications of such a system, this does not allow one to disregard the realities with which our justice system is to face on a day-to-day basis, especially in terms of the limited resources at its disposal. While a one-size-fits-all maximum punishment for a crime is never going to maximise, nor get close to, a perfectly equal, equitable, or reliable medium of justice within a society, it is, however, the most and arguably only realistic means of enacting justice in the real world. If judges were granted the power to allocate fines as they saw fit on a case-by-case basis, without the guidance or framework provided by judicial precedent and parliamentary legislation, this would, on a basic level, severely disrupt the flow of an already backlogged judicial system, but more importantly, potentially open Pandora’s box to the wider arbitrary divvying out of unjust punishment, using legitimate judicial authority as its platform. This is made all the more troubling an eventuality when one is to take into account the discriminatory influences that the innate prejudices of various figures of judicial authority have over judicial outcomes. The very idea of even chancing the unsheathing of judicial power to be used at the subjective discretion of the independent judges and magistrates presents unthinkable circumstances whereby lawful, honourable institutions of judicial authority are mated with preexisting outside influences and prejudices and used as a platform for perpetuating injustice. Granting judges the authority to allocate sentencing as they see fit without referring to sentencing guidelines or maximum sentence terms would undoubtedly create the possibility for the increasingly arbitrary exploitation of power, inevitably corrupting the wider integrity of our judicial system, no matter the checks and balances that we may choose to implement retroactively. Judges would potentially be granted greater freedom of decision to cast arbitrary sentences on different groups of offenders due to their either implicit or overt natural predispositions, be it disability, race, gender, or any other individual factor of a defendant.
Thus, on the matter of monetary punishment within criminal law, in order to derive any sort of workable conclusion, one must consort the expectations of our under-resourced judicial system with the opposing inequalities presented by the same means of punishment on paper; only from this can some form of agreeable compromise be conceived. While one must be prepared to accept that the use of a flat fee maximum fine for certain offences, especially those that carry great psychological and emotional connotations, is not the best way to maximise overall justice, one must at the same time be prepared to accept that it is, given the material constraints of almost all real-world settings, most certainly the optimal compromise that our judicial system is feasibly able to reach. The concessions arrived at, namely ignoring the true value of emotional suffering, are more than made up for by the mitigation of arbitrary use of sentencing that fixed monetary punishments facilitate, and it is on this common ground that our judicial system resides today. Such an approach can be one said to achieve the status of ‘judicial satisficing’, whereby justice can be best ‘allocated’ according to the scarce resources typically at the court’s disposal. In a perfect, unbiased, and improperly influenced world, a perfectly calculated and executed fine would obviously be the theoretically optimal manner in which true retribution and reparation can be achieved; however, this is simply not a feasible proposition in the real world or at any time in the foreseeable future. Further still, as long as the two fundamental issues of imperfect information and the personal influence of judges continue to burden our judicial system, such a proposition will never be a viable one. Therefore, one can only logically conclude that our current system of a fixed maximum fine is unquestionably the most practical, efficient, and just medium for punishment at the court’s disposal when seeking to punish or disincentivize minor offences.
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