Scofflaw Heaven?

Wickersham’s Conscience pulls out Ferguson as his whipping boy in a diatribe about Beauregard bringing back debtors’ prisons. The specifics on how the legal system “took advantage of” poor people have been beat to death, but were resurrected January 2017 by WC to paint Mr. Sessions as a Dickensian fiend. Well, I am no fan of Sessions, but there are very good reasons for his actions here, whether those actions are the result of racist ideology, or “Trumpist philosophy” (what an oxymoron that is).

To deal with the last bit first, Session pared away “guidance” by which the executive branch appeared to pre-empt local discretion under the law.  Nothing unlawful or reprehensible about that, on its face, is there? I may find that frustrating, because I endorse the policies behind the “guidance”, but in essence Sessions is correct in finding that such accretions are problematic.

Now, let’s put aside for a moment the outrage and excesses seen in Ferguson and what you arguably have (as in, what you can argue you could arrive at legitimately) is a “system” that is trying to impose order on a community of scofflaws. Let’s compare what we learned about Ferguson with what happened in Anchorage with respect to automated speed enforcement, so that our analysis isn’t contaminated by extrinsic outrage. Anchorage has an horrendous problem with people violating traffic laws. The apparent solution (photo radar) resulted in a huge hue and cry, however. Why? Because everyone was speeding, everyone was getting hefty fines, and no one wanted to pay said fines. Well, the good folk who wanted the speed limits enforced argued, “If you don’t want to pay the fine, don’t do the crime”.  But the Anchorage scofflaws were not about to be undone by technology. They beat photo radar in criminal court on a resolvable technicality, and the outrage over the program precluded politically it being implemented as a even a civil measure. We have lots more people dead from speeding vehicles. If you REALLY want to control behavior, what are you to do?

Clearly, if you want to put an end to Behavior X (whether that is speeding, running red lights or beating up on your wife) there has to be a clear ban on the behavior, and a set of actually enforced consequences. The liberal tripwire here is the concern that the consequence is intentionally being contrived such that the “perp” can never escape the the circle of ever rising debt or imprisonment. Yes, yes, yes! We can all agree that this is problematic, and yet day fines are still not widely implemented in the US. Day fines gob smacked many Americans for the first time when The Atlantic carried a story about a monstrous Finnish fine. Day fines impose fines that are proportionate to ones ability to pay (see, for example, How To Use Structured Fines (Day Fines) as an Intermediate Sanction . The question for the outraged, as far as I am concerned, is whether a system of days fines in a place like Ferguson would remediate the issues decried.

“Nay, nay, nay,” I say. Lets face it, the folk in Ferguson would not have paid the fines under any circumstances. Sorry, but if you make the day fine just a copper, you will have those who appear with a hapenny. Why? For the same reason you can impose a 45 mph speed limit and someone caught doing 60 will complain. While the Ferguson situation is clearly “over the top”, go to any court system in the country and visit the “wants and warrants section” and you will see the same thing. Review the collection of fines, and you will recognize that our judicial system is largely ignored until you hear that loud clack as the electronic door lock on the jail sets, or you are made to empty your pockets on the witness stand. I know. I have had to do debtor hearings where the debtor, claiming poverty, is wearing $30K in jewelry. Yah, tools of their trade….. 

“WHOA!”, you say, “I never never knew you to be such a retro asshole!” Sorry, but as we promote an “open” society, we are also promoting a society where there are few norms outside of the law; i. e. the law exists to set the norm. While you may have cleaned up after your dog, and controlled him while out walking in the past out of a sense of personal and communal responsibility, once such a shared sense is lost, the only thing that keeps you from letting your dog shit on my porch is enforcement of the law. Enter civil fines. You violate the norm you get assessed a fine. You fail to pay the fine, your action gets criminalized, and the monkey chases the weasel.

The fly in that ointment is a constabulary that won’t enforce the law (which in many cases is what we have in Anchorage). If you don’t want to simply punish offenders (punishment is really not conducive to alleviating criminal behavior) then we could try to tax them, and the ultimate taxing of an individual who simply refuses to comport themselves with society is to put them to work paying off their debt, lol. And that is a debtor’s prison. With or without day fines.

Perhaps instead of being outraged by the concept, we should explore ways to make it viable. Or we could just say, “You can break the law all you want, because we don’t care.” Your choice….

2 comments on “Scofflaw Heaven?

  1. You conflate the ability to pay fines with the willingness to pay fines. Constitutional law doesn’t forbid fines but it unambiguously forbids jailing those who genuinely can’t pay.

    You don’t want to talk about Ferguson? Fine. How about the Georgia woman who served eight months in custody past her sentence because she couldn’t pay a $705 fine. Or the Michigan veteran battling homelessness who lost his job when a judge jailed him for bringing only $25 rather than the required $50 first payment to court. Or the judge in Alabama who told people too poor to pay that they could either give blood or go to jail?

    You further conflate scofflaws who don’t want to be punished at all – the admittedly wretched Anchorage drivers, for example – to those who are unable to pay fines and are jailed as well.

    Att’y General Sessions discard of the Task Force guidelines is much more about jailing the poor than law enforcement.

  2. Marc Grober says:


    Perhaps you missed the part about day fines?

    When all is said and done, and when you have made the system as humane as possible, you are still going to be faced with a situation where those sentenced are not going to perform (and the Polk County documentation appended to the Vera publication demonstrates just that.) What then?

    I am very familiar with the impact of the judicial system on those less fortunate having spent years practicing criminal law. I am not confused about the situation, just cognizant of human nature. The plaintive cry of the DUI is not, “How shall I make amends?”, but “How can I escape all liability so I can do it again?”

    I made it clear that a) I am no fan of Sessions, and b) there clearly are excesses that are worthy of opprobrium. I think you are suggesting, without any basis whatsoever, that being nice to someone who broke the law will result in that person paying their fine and refraining from breaking the law in future. If only… Most who break the law do so because they could care less about the law or those the law protects (we have actually few strict liability offenses on the books and intent is otherwise required, though I did have to explain to someone who tried to argue that they, “simply didn’t INTEND to drive 25 over”, that nobody really cared).

    In sum, while I agree that the current situation is horrific, I argue that no matter how “humane” you make that system you are not going to see much of any change in the behavior of those held to account. I am happy to see progressive day fines implemented, and have argued them to my legislators (for all the good that will do). I will stand you a pint of your preference should we suddenly see progressive day fines implemented, and as a result, lo and behold, all fines are paid in a timely. That would truly be a day of celebration.

    p.s. love your blog

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