On the political economy of fines. Rusche and Kirchheimer’s Punishment and Social Structure revisited

Abstract

This paper addresses the evolution of socio-legal theories concerning the use of monetary sanctions from a specific theoretical perspective – the “political economy of punishment” originally developed by Rusche and Kirchheimer. In particular, the paper explores the often-overlooked chapter on fines in Rusche and Kirchheimer’s work. Their reflections on the rise of monetary fines provide some premonitory guesses regarding the role of fines in consumer societies. The paper aims to complete their scenario highlighting their innovative and visionary research on fines, and to contribute to the sparse theoretical literature that deals with the political economy of fines.

Keywords:

• Fines
• political economy of punishment
• white-collar crime
• regulatory offences
• Marxism

JEL CODES:

• B1
• B2
• K2
• K4

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Kirchheimer was the only author of the chapter on fines (Weihofen 1939, 145; Bottoms 1983, 168; Melossi 2003, xviii). He also wrote the chapter on new trends in penal policy under Fascism and revised the chapters written by Rusche.

2 Marx and Engels did not pay much attention to crime and punishment (Lea 2010, 19–20; Matthews 2012, 93–94; Vegh Weis 2018, 11–12, 16). The same happened in later Marxist literature, with the relevant exceptions of Bonger, who did not write about fines, and Pashukanis ([1929] 1978), who did. See in this regard Faraldo-Cabana (2014).

3 See the Swiss legislation of the canton of Vaud 1875, the Italian Zanardelli Criminal Code 1889 and the Spanish Criminal Code 1928. The three cases were considered pioneering in their day, but they were soon classified as failures (respectively Brenn [1945, 61–62], Paliero [1986a, 152, 1986b, 89–90] and Roldán Barbero [1983, 51]). German legislation on fines in 1921, 1923 and 1924 also established public service work carried out in freedom as a substitute for unpaid fines, but this measure failed in practice (Best 1932, 19; Grebing 1978, 151; Pfohl 1983, 29–30).

4 The fine was a very important sanction in most European countries until the late eighteenth century (s. in England Sharpe [1990, 20–25], Briggs et al. [1996]; in Germany Neumaier [1947]; in Spain Roldán Barbero [1988, 176]; in Italy del Giudice [1905, 507], Cecchini [1991, 282 ff.]). As O’Malley (2009b, 70) explains, “[i]t was not simply corporal punishment that prisons displaced, but also and even more so, fines.”

5 Burgess (1940), Hall (1940), Marshall (1940), Jankovic (1977), Greenberg (1981), Wallace (1981), Galster and Scaturo (1985), Inverarity and McCarthy (1988), Garland (1990, 108–109).

6 Quite unfairly, because at least Rusche (1933/1978, 3) was very conscious of the complexity of the relations between the material structure of society and its punitive institutions: “The dependency of crime and crime control on economic and historical conditions does not, however, provide a total explanation. These forces do not alone determine the object of our investigation and by themselves are limited and incomplete in several ways.”

7 But for the Law and Economy movement.

8 For example, the English Rating and Evaluation Act 1925, which provided that a defaulter who proved that his failure to pay was due to circumstances beyond his control should not be imprisoned, had no effect at all (Thoday 1937, 389).

9 For example, in Spain the literature, influenced by correctionalist approaches, but also by the socio-economic reality, adopted viewpoints that were completely unfavourable towards pecuniary punishments (Vida 1885, 58, 68; Armengol y Cornet 1894, 57; Bernaldo de Quirós 1898, 306; Bernaldo de Quirós and Navarro de Palencia, 1911, 598), or at the very most they expressed resigned acceptance considering them the lesser of two evils compared to short-term prison sentences (Arenal 1890, 321), with some notable exceptions (Silvela 1874 318). In Italy it was also emphasised that, given the fact that a large part of the population was trapped in abject poverty, the fine was a penalty that should be abolished, since in reality it automatically turned into a prison sentence. Ciccarelli (1897, 655) described it as an ‘iniquity’, nothing more than a ‘punishment of poverty’. The same view was held in Switzerland, where Stooβ (1916, 5 ff.) spoke of the fine as a ‘privilege of the rich’. And also in Germany, where Merkel (1895, 387) pointed out that imprisonment for fine defaulters gave the administration of justice the nature of a justice of classes, since the rich man pays, while the poor man goes to prison.

10 As they pointed out,

The fine costs the state nothing while procuring the maximum penal effect. The economic system retains its labor power, the convict’s family is not thrown upon public charity, and society, as represented by the state, receives damages for the wrong done to it instead of having to pay the costs of punishment. (Rusche and Kirchheimer 1939, 169)

This assertion has clear parallels with Becker and Posner’s works.

11 Their perspective was strictly materialistic in that it was based on an examination of the productive forces and the relations of production under a given set of socio-historical conditions. It does not pay attention to ideas, motives, attitudes, and beliefs as methodological and theoretical starting points for research on crime and punishment. The relationship between penal reforms and changing economic and social structures is not to be denied, but the same occurs with the humanitarian and progressive nature of penal reform during the late eighteenth century and early nineteenth century, which fits with the humanitarian and progressive requirements of the emergent liberal society.

12 See Arschrott (1888, 45–46), Lammasch (1889, 450), Fuld (1890, 457–458), Rosenfeld (1890, 354), Mittelstädt (1891, 66), Schmölder (1902, 22–25). This proposal also spread to cases for uses beyond just replacing unpaid fines (Lammasch 1889, 449; Aschaffenburg 1903, 216). But it met with strong opposition (see, for example, Berolzheimer 1903, 456; Gennat 1905, 50).

13 Those of a theoretical nature included the concern for the justice of a solution that forced the poor to work, while the rich could simply pay a sum of money; the observation was also made that work is not punishment, we are in fact fortunate to be able to work, therefore linking a penalty and work together devalues the notion of work; and, more recently, the effectiveness of community service in terms of correctional potential. Those of a practical nature were related to the lack of alternatives for offenders who were unable to work, the (un)availability of suitable work for all insolvent offenders, mostly because of lack of organization, and the possible competition to free work. The endeavour to properly answer all these questions is still ongoing.

14 The only substantial aspect that nowadays differentiates the criminal fine from the regulatory fine is the possibility of replacing the former with a term of imprisonment for cases of non-payment. This possibility does not exist for the regulatory fine. O’Malley opposes this (2009a, 80), explaining that in many jurisdictions regulatory fines may be enforced in default with a term of imprisonment. That is not the case in most of Western Europe, the main object of this study and of Punishment and Social Structure. O’Malley (2009a, 81) also recognizes that, for the most part, in marked contrast to penal fines, regulatory fine defaults are dealt with by means other than imprisonment.

15 Against this position, Lewin and Trumbull (1990, 283) said that

a civil penalty [what we call here a regulatory fine] functions as a price, not a punishment. Its purpose is to redress the harm and deter future violations. It prices the behavior and internalizes the associated diseconomies, rather than imposing punishment for wrongdoing.

This opinion, based on the inverted application of the law of supply and demand to regulatory law, is not sustainable. As Paliero (2005, 1372) stated, the law of supply and demand aims to explain the distribution on the market of commodities that represent a benefit for the agents in the market – for all of them, for the producer as well as for the consumers. It also involves a model of behaviour aimed at encouraging decisions concerning the commodities, not discouraging them. The logic underlying the ‘punishment market’ is precisely the opposite: in this market a negative commodity is distributed – the punishment, whether criminal or regulatory -, which involves costs for everyone and does not provide any benefit, either public or private. It is a market based on a logic that aims to depress, not to develop its own dynamics. The offender is thus viewed as a consumer who must be repelled rather than seduced, and above all it aims to discourage both the demand for the punishment from the offender through his or her illegal behaviour, as well as the supply of the punishment from the state.

16 As noted by Emsley (2005, 57), while contemporaries came to recognize

that men of wealth and social standing committed offences […] such offenders, however common in fiction, newspaper accounts, and journal literature, were not perceived as members of a criminal class and were categorised as ‘criminal’ with some difficulty.

About the challenge of respectable crime to the understandings and interpretations of ‘the criminal’ in the late nineteenth century, see Locker (2008, 115 ff.) and Wilson (2014).

17 See del Giudice (1905, 507), Neumaier (1947), Roldán Barbero (1988, 176), Sharpe (1990, 20–25); Briggs et al. (1996), O’Malley (2009a).

Additional information

Funding

This work was supported by Secretaría de Estado de Investigación, Desarrollo e Innovación. Gobierno de España.