Money and the Governance of Punishment by Patricia Faraldo Cabana

Author:Patricia Faraldo Cabana [Cabana, Patricia Faraldo]
Language: eng
Format: epub
Tags: Social Science, Criminology
ISBN: 9781134872640
Google: 1TUlDwAAQBAJ
Publisher: Routledge
Published: 2017-06-26T03:25:52+00:00

First doctrinal formulations of the day-fine system

The need to consider the offender’s financial situation to determine the end amount of the fine concurred with other factors that should also be taken into account, in particular the seriousness of the offence and the blameworthiness of the perpetrator. The day-fine system is the sole system which considers only the offender’s ability to pay the fine when setting the monetary value for the fine units – each one of them is a ‘day’ – while the number of these units is selected according to the degree of punishment appropriate for the specific criminal behaviour. In particular, ‘the basis of the day-fine system is the two-stage breakdown of the determination method’ (Roldán Barbero 1983: 45). In fact, the need to take the offender’s financial situation into account does not, per se, define the day-fine system; rather it is one of the methods of the so-called total amount fine system (Gesamtsummensystem), under the terms of which the judge imposes a specific amount basically resulting from the combination of two coordinates, the seriousness of the offence and the offender’s financial situation (Beristain Ipiña 1976: 31, Hillsman 1990: 76–77, Albrecht 2001: 307; see, e.g., Zürcher 1891: 268–269, or Glauning 1905: 283), which eventually became three when the blameworthiness of the perpetrator was added to the seriousness of the offence – once it was accepted that it is an imperative of justice to express the offender’s level of culpability in the sentence (Mittelbach 1957: 1139). Although Garofalo (1887: 106–107) proposed in 1887 Italy that ‘a previously determined amount, proportionate to his alleged earnings’ should be imposed on the offender as a fine, and in 1893 Getz (1893: § 22) introduced in his second draft for a Norwegian penal code a tariff system modulated by the need to consider the offender’s daily income, there was still a long way to go to establish the day-fine system.

The first doctrinal formulations of the day-fine system, defined in terms of the need to break the determination process of the fine down into two elements, are found at the end of the nineteenth century, almost simultaneously in Austria (Friedmann 1892: 148, followed by Merkel 1893: 351ff.) and Italy (Bertola 1895: 10, 12). They shared the idea of adopting a term of imprisonment as the basis for calculating the amount of the fine – in other words, as a means of determining the penalty – then using a conversion method based on the offender’s financial situation, replacing each day of the penalty with a specific amount of money. This proposal, although based on a term of imprisonment, which, to a certain extent, blurred the autonomy of the fine (Brenn 1945: 28; Grebing 1978: 75), should be considered as the first doctrinal formulation of the day-fine system (Driendl 1978: 19, 39; Roldán Barbero 1983: 44–45), since this occurred several years prior to the proposal made by Thyrén (1910: 75), who many mistakenly took to be the creator of this system (see, e.g., Florian 1934: 807, Mittermaier 1936: 647, Schuchbauer 1948: 31–32, Thornstedt 1974: 595, and Strahl 1951: 60).

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