In this video, project Reporter Kevin Reitz talks about the consequences of economic sanctions in the justice system.

Model Penal Code: Sentencing – Economic Sanctions from The American Law Institute on Vimeo.

The following is excerpted from the Comments of the Proposed Final Draft (PFD). The Black Letter found below is the full black letter from the PFD. If you are interested in a complete copy of the comments from this section, please contact us.

Comment:

a. Scope. As a feature of U.S. sentencing policy, economic sanctions have proliferated since the original Model Penal Code was drafted and have increased in average amounts, while efforts for their collection have intensified. The most salutary change has been the expanded use of victim-restitution orders, which the Code would give priority over all other economic penalties. At the same time, there has been steady growth in fine amounts, asset forfeitures, and a congeries of costs, fees, and assessments levied against offenders. In many cases, offenders’ total debt burdens overwhelm their abilities to establish minimally sound financial lives for themselves and their families. One widespread practice in American law is to impose economic penalties that stand little chance of being collected, with insufficient concern for their criminogenic effects and long-term impact on public safety.

The development of economic sanctioning policy in the United States has at times responded to fiscal considerations rather than criminal-justice policy needs, driven by shortages in funding rather than a belief in the crime-reductive efficacy of the sanctions employed. Times of distress in the nation’s economy have pushed state and local governments toward efforts to recoup budgetary shortfalls from convicted offenders. At the same time, the inflation in imprisonment as the principal currency of criminal punishment in the United States has made it more difficult for economic penalties to hold credibility as stand-alone sentences, or as alternatives to prison. Measured in public perception, the economic sanctions most offenders are capable of paying are of scant punitive value when compared with incarceration.

In contrast to the policies in many other Western democracies, the growth of monetary sanctions in America has not displaced the use of prison and jail sentences. Large upswings in national incarceration rates have run alongside the multiplication of offenders’ debt burdens. Meanwhile, as economic and other penalties have become more severe, wealth and income inequalities have become increasingly pronounced in our society, with those on the lowest rungs of the economic ladder most frequently arrested, charged, and convicted of crimes—and most frequently faced with the challenge of reintegration into the law-abiding work economy while burdened with a criminal record.

Some of the new economic-sanctioning policies have raised questions of conflict of interest in the administration of criminal law, felt most by agencies authorized to seize or collect assets from offenders and then retain some or all of those assets for their own use. Asset forfeitures and a variety of criminal-justice costs, fees, and assessments, little used before the 1970s and 1980s, have in recent decades become major revenue sources for law-enforcement agencies, courts, corrections agencies, and correctional-service providers.

It is an understatement to observe that research and policy debate have not kept stride with these important trends. Questions of the achievable goals of financial penalties in contemporary American justice systems have not been adequately investigated, theoretically or empirically. Issues of fairness in their use, in a society that does comparatively little to combat extreme poverty, have been neglected. In the absence of a sound and comprehensive economic-sanctions policy, victims’ claims to restitution are often submerged, and society’s interest in seeing offenders reintegrated into the law-abiding community is compromised. Ultimately, a poorly designed economic-sanctions policy impedes public-safety goals. Lawmakers in every state should give thoughtful attention to these interconnected subjects.

Though the landscape of economic penalties calls out for reform, there are practical limits on how directive the proposals in model legislation can be. Rudimentary data are lacking on how economic sanctions are employed across U.S. jurisdictions today, which is a poor basis for a massive reordering of those marketplaces. Operationally, there is a dearth of promising experiments or “success stories” in the field—again providing little purchase for a Model Code. The general approach of § 6.04 is to navigate as best it can in waters that are poorly charted, laying down clear principles so far as current knowledge and ethical sensibilities allow, while leaving considerable room for experimentation and development of the law at the state level.

§ 6.04. Economic Sanctions; General Provisions.

(1) The court may impose a sentence that includes one or more economic sanctions under §§ 6.04A through 6.04D for any felony or misdemeanor.

(2) The court shall fix the total amount of all economic sanctions that may be imposed on an offender, and no agency or entity may assess or collect economic sanctions in excess of the amount approved by the court.

(3) The court may require immediate payment of an economic sanction when the offender has sufficient means to do so, or may order payment in installments.

(4) The time period for enforcement of an economic sanction [other than victim restitution] shall not exceed three years from the date sentence is imposed or the offender is released from incarceration, whichever is later. If an economic sanction has not been paid as required, it may be reduced to the form of a civil judgment.

(5) When imposing economic sanctions, the court shall apply any relevant sentencing guidelines.

(6) No economic sanction may be imposed unless the offender would retain sufficient means for reasonable living expenses and family obligations after compliance with the sanction.

(7) If the court refrains from imposing an economic sanction because of the limitation in subsection (6), the court may not substitute incarceration for the unavailable economic sanction.

(8) The agencies or entities charged with collection of economic sanctions may not be the recipients of monies collected and may not impose fees on offenders for delinquent payments or services rendered.

(9) The courts are encouraged to offer incentives to offenders who meet identified goals toward satisfaction of economic sanctions, such as payment of installments within a designated time period. Incentives contemplated by this subsection include shortening of a probation or postrelease-supervision term, removal or lightening of sentence conditions, and full or partial forgiveness of economic sanctions [other than victim restitution].

(10) If the court imposes multiple economic sanctions including victim restitution, the court shall order that payment of victim restitution take priority over the other economic sanctions.

(11) The court may modify or remove an economic sanction at any time. The court shall modify an economic sanction found to be inconsistent with this Section.