Final Report Summary - MONETIZED JUSTICE (Monetized justice. The new meaning of penal fines in consumer societies) Monetized JusticePatricia Faraldo Cabanae-mail: patricia.faraldo@udc.esIntroductionAt the core of the project was the elaboration of one innovative concept: monetized justice. It aimed to understand the social functions and consequences of the penal fine analysed within the most general context of financial penalties. Monetary penalties and compensations are ubiquitous. They outnumber any other sanctions delivered by criminal justice in many European countries. In a monetized society, in which money is increasingly available and all objects can be exchanged for money, fine takes on a new meaning, which has been investigated in the context of this project, taking into account that fine is the only form of penal sanction where the burden need not be borne by the wrongdoer and that, unlike virtually all other sanctions, is always redistributed. The concept monetized justice examines the implications of the “monetization of justice” as consumer societies are increasingly regulated through this single medium. To this end, the project took an interdisciplinary approach between the fields of criminal justice, criminology and criminal policy, assigning a relevant role to sociology and offering a multidisciplinary and comparative perspective.Project objectivesThe project aimed to understand how a traditional form of punishment with new meanings manages and codifies social conflicts and what kind of post-modern penalty practices are emerging as governmental tools. This general objective was divided into four specific objectives:1. The project aimed at the theoretical elaboration of penal fines and financial penalties in European systems from an interdisciplinary, multidisciplinary and comparative perspective, in order to elucidate what kind of relationship exists between money, money sanctions and consumer societies and the new meanings of penal fines and financial penalties in such societies.2. It elaborated a description of the main devices of implementation of penal fines and financial penalties and the practical and problems they propose, taking into account the most recent theoretical tendencies about post-modern penalty.3. In addition, two study cases were planned, but only one developed: the fine as an appropriate punishment for corporations. The enforcement regimes of the fine, taking into account the status of the victim, which was the second study case, was impossible to develop because of the lack of data in Italy, Portugal and Spain.4. Beyond that, the project aimed at improving academic and public knowledge about the contemporary penalty and the forms it actually adopts. It contributed to an improvement of the penal systems in Europe through the understanding of the governmental technologies behind the use of money sanctions. Description of performed work and achieved resultsSince the beginning of the project, the research focused on the mechanisms, instruments and practices relating to penal fines, analysing the implications of their use in the transformation of social control strategies. This shows interesting paradoxes: from their consolidation in the classical works of Beccaria and Bentham as one of the pillars of the current crime management strategies, along with imprisonment, to their gradual decline in favour of an increase in other non-custodial sentences. This evolution is framed within the crisis of the paradigm of rehabilitation through prison, but also within the crisis of fine and financial penalties themselves, since their very nature requires the provision of substitute mechanisms that have to be strong to achieve a preventive effect. This historical development was analysed in the paper ‘Towards the Equalization of Impact of the Penal Fine. Why the Wealth of the Offender was taken into Account’. It addressed the important changes in the legal regulation of the fine that culminated in the implementation of the day-fine system in many European countries during the twentieth century. These changes resulted from various late nineteenth century rationalities that considered the fine a justifiable punishment. Therefore, they tried to support its extension by making it affordable for people with low incomes. The paper investigates the historical development of the penal fine as well as the changing forms of this penalty in Western European criminal systems from the end of the eighteenth century until the late nineteenth century. One first conclusion was that one of the most influential considerations on the courts’ attitude towards penal fines is their affordability for low income offenders. European literature devoted much energy in addressing the use of imprisonment as a substitute penalty in default of payment and the subsequent overcrowding of prisons with poor people who could not paid their fines. These two problems became central foci in the European criminal systems along the nineteenth century. In the paper ‘A Certain Sense of Fairness? Why Fines were made Affordable’ (under submission) the researcher investigated more closely the reasons why these phenomena became such a focal issue, and the measures taken to manage them. She did so by reviewing historical material from a variety of Western European countries.One interesting result of these first two papers was that the issue of the inequality of imposing the same amount of fine on the rich and the poor was commonly recognized in nineteenth-century European literature, and the main cause of the rejection of fines at that time. Thus, it would be reasonable to assume that fines should have had a more important role in a more egalitarian society than in others where money and wealth were unequally distributed. However, this was not the case predominantly due to both ideological issues regarding the intrinsic bourgeois character of the fine and practical problems in the implementation of the subsidiary punishment in case of insolvency. The paper titled ‘Freedom, Labor and Money: A Comparative Legal History Approach to Fines in Post-Revolutionary Russia, 1919-1929’ explained the ideological justification related to the penal fine in the initial years of the Soviet regime in Russia, arguing that post-revolutionary legislation could not overcome the trends that were appearing on capitalist countries, and therefore failed to provide the fine with an applicative theory and practice clearly distinguishable from the one prevailing in the Western European tradition.Some key aspects of the historical development of fines show that a series of associations based on the idea of money, its essence and its capabilities had a profound impact on modern legal culture. These associations generated a pattern of practices and dispositions which have strongly influenced the way we see the payment of a sum of money to the state as a ‘suitable’ punishment for some offences, but not for others. In fact, an accurate analysis of the types of punishment must contain a set of interpretative techniques sensitive to how time, freedom, and money are perceived and to the range of dispositions and expectations which inform how they are used to punish. The purpose of the paper titled ‘Who dares fine a Murderer? Fines and the Changing Meaning of Money in Criminal Law’ (under submission) was to contribute to this line of research by providing a simple but hopefully insightful way of explaining the various views of money involved in the development of monetary punishment since the Enlightenment. On the other hand, the paper titled ‘La despenalización de las faltas: entre la agravación de las penas y el aumento de la represión administrativa’ was centered on the governmental meaning of money sanctions as an important factor for the creation and expansion of regulatory law. In the context of the last draft amendment to the Spanish Penal Code, this paper analyzed whether we can speak of the decriminalization of misdemeanors given their widespread transformation into minor and less serious offences, it questioned the procedural consequences of the reform, it revealed the reasons that in their day justified misdemeanors being introduced into historical criminal law and examined whether these reasons are no longer valid, which would lead to the elimination of misdemeanors. At the same time, it contrasted the alleged effectiveness and promptness provided by regulatory law with the speed of criminal law in the prosecution of minor offences, in order to clarify whether the pragmatic criteria claimed by the Spanish government in support of the reform are justified or not. Lastly, the paper examined the reasons that suggest that the elimination of misdemeanors is a milestone on the road to greater penal and administrative repression, which does not involve a decrease in the ius puniendi that hangs over citizensAfter this, attention focused on the fine for corporate offenders, one of the proposed case studies. Although a sizable literature has arisen in the last four decades concerning the optimal punishment of criminal acts, relatively little attention has been directed to the question of whether corporate criminals should be punished using fines or structural penalties. A relevant exception is the law and economics movement of the Chicago school. In two papers, ‘La pena pecuniaria per le persone giuridiche nel diritto penale dell’ambiente spagnolo’ and ‘¿Es la multa una pena apropiada para las personas jurídicas?’, some of the results regarding the use of fines against corporations were presented, and the effectiveness of stringent money sanctions for corporations was questioned. As a sub product of the research there were some interesting results concerning confiscation. They were included in two papers: ‘Algunas propuestas dirigidas a mejorar la recuperación de activos procedentes del crimen organizado’, centered in the legal situation in Mexico, as a very good example of organized crime strongly intertwined in the social tissue of the country, and ‘Improving the recovery of assets resulting from organized crime’, from a more general, European perspective. The aim of this work was to put forward solutions to the practical challenges in order to help legal mechanisms for preventing and repressing money laundering and terrorist financing and for confiscation being effective in practice, taking into account the differences between national legal cultures. In order to define the topic, after an introduction to the difficulties of implementing international standards, the paper focuses in particular on overcoming internal obstacles.Also interesting were the results concerning the means available in the Spanish Penal Code to promote the voluntary execution of positive post-criminal behaviour that responds to the need to protect the victim’s economic interests by prisoners. The paper titled ‘Luces y Sombras del Papel Atribuido a los Intereses Patrimoniales de la Víctima Durante la Ejecución de Condenas por Terrorismo’ discussed whether the fact that the protection of the victim’s economic interests serves the purpose of rehabilitating the offender or whether it becomes an obstacle in their reintegration into society, leading to the introduction of victimological considerations only being acceptable if they do not affect this basic objective of enforcing the custodial sentence, and can therefore serve as a useful element of custodial treatment and as data to be used for judgement purposes in risk assessments that should be carried out at different points of the enforcement.
