How can one fine be fair to a rich person and a poor person at once?

AnalysisEvery other sanction is measured in something the state distributes equally. A day of custody is a day for everyone; an hour of unpaid work is an hour. Money is the exception: a unit of it means different things to different people, so a sanction denominated in money cannot be equal and fixed at the same time.

Germany splits the calculation in two. Section 40(1) of the Criminal Code provides that the fine is imposed in daily units — Tagessätze — at least five and, unless the law provides otherwise, at most 360 full units. The number of units expresses the offence.

The value of a unit expresses the offender. Section 40(2) directs the court to determine it taking into account the personal and economic circumstances of the offender, as a rule proceeding from the net income the offender has or could have on average in one day, while ensuring that the offender is left at least the minimum income indispensable for living. A daily unit is set at not less than one euro and not more than thirty thousand.

The statute accepts that the second figure is often unknowable precisely. Section 40(3) permits the offender’s income, assets and other bases for assessing a daily unit to be estimated — which keeps the system working without requiring a financial investigation in every case.

England and Wales reaches the same problem with one figure and two requirements. Section 125(1) of the Sentencing Act 2020 provides that the amount of any fine must be such as, in the opinion of the court, reflects the seriousness of the offence. Section 125(2) requires the court, in fixing the amount, to take into account the circumstances of the case including in particular the financial circumstances of the offender so far as they are known or appear to the court.

What happens when a fine is not paid is where the two designs meet again. German law converts: section 43 provides that an irrecoverable fine is replaced by a default custodial sentence, with two daily units corresponding to one day, and a minimum of one day. The unit that was the sentence becomes the unit of the conversion.

• Common belief: A fine is a fixed amount attached to an offence.

  In practice: Not in the systems described here. German law imposes a number of daily units whose value depends on the offender’s circumstances; English law requires the amount to reflect seriousness and to take account of financial circumstances.

• Common belief: Taking means into account is a discount for poor offenders.

  In practice: Section 125(3) of the Sentencing Act 2020 states that the duty applies whether the effect is to increase or reduce the fine. The point is equal severity, not lower figures.

• Common belief: A day-fine system means the court decides how much someone can afford.

  In practice: It decides two things separately: how many units the offence merits, and what a unit is worth for this person. Section 40(4) requires both to be stated in the decision.

• Common belief: An unpaid fine is simply a debt.

  In practice: Under German law an irrecoverable fine is replaced by a default custodial sentence at a statutory conversion rate of two daily units to one day. The sanction does not disappear; it changes form.

• Common belief: Fines are a minor sanction not worth explaining.

  In practice: They are the most frequently imposed criminal sanction in many systems, and the one whose severity varies most between people receiving the same nominal penalty. That is exactly why two legislatures legislate the calculation in detail.

Two mechanics for the same equality problem.

• A number of daily units for the offence, and a separate value per unit for the offender, both stated in the decision — Germany, StGB § 40.
• Estimation permitted where the financial basis cannot be established — Germany, StGB § 40(3).
• One amount that must reflect seriousness and take account of means, increasing or reducing — England and Wales, Sentencing Act 2020 s. 125.
• A statutory conversion of an irrecoverable fine into default custody at two units to one day — Germany, StGB § 43.

Stating the number of units and their value separately makes a fine reviewable in two independent ways. A person can say the offence did not merit that many units, or that a unit was valued on a mistaken view of their circumstances, and the two arguments do not collapse into one another.

AnalysisThe default-custody rule is the reason the calculation matters beyond money. Where an unpaid fine converts into custody at a fixed rate, an amount set without regard to what the person can pay is a route into a prison, and the provisions requiring means to be considered are the safeguard against it.

• Two systems are described from primary text. How often fines are imposed, at what levels, and how reliably they are collected are empirical questions this platform has not researched.
• Nothing here indicates what any offence attracts. It describes the mechanics of calculation, not any outcome.

Related: when a court may imprison, custodial and non-custodial sentences, and equality before the law.