Under substantive law, offenders can be punished by seizing their property and resources. That may be in the form of fines, forfeiture, and restitution. Monetary punishments are often preferred to more severe sentences such as incarceration and death. Below we discuss some of the most common monetary punishments.

4.11.1 Monetary Punishments—Fines

Fines are generally viewed as the least severe of all possible punishments. Fines may either supplement imprisonment or probation, or they may be the sole punishment. Criminal codes generally authorize fines as punishment for most crimes, but some of the older criminal codes did not authorize fines for murder.

The Model Penal Code proposed legislative guidelines on the use of fines, but states have generally rejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts, and there are few limits on the judge’s ability to impose a fine. Frequently, the criminal statute will specify the highest permissible fine. The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits excessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395 (1971), the Court found that fines punish poor people more harshly than rich people and thus violate the Equal Protection Clause.

Historically, magistrates had given offenders the option of paying a fine or serving a jail sentence. Sentences were frequently “thirty dollars or thirty days.” If defendants were too poor to pay the fine, they went to jail. The Tate Court reasoned that by requiring either time or a fine, the state was really incarcerating Tate because he was too poor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines over a period of several months. This practice may nonetheless subject the poor to an increased punishment if the court administration requires interest or some fee associated with a payment plan.

4.11.2 Civil Forfeiture

Federal law allows civil forfeiture, the process by which the government confiscates the proceeds (property or money) of criminal activities. See 18 USCA §§981-982. Laws that allow the state to forfeit the property used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal, state courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States, 509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture “constitutes payment to a sovereign as punishment for some offense’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” However, the court left it to state and lower federal courts to determine “excessiveness” in the context of forfeiture.

In 2000, Congress passed the Civil Asset Forfeiture Reform Act. This Act curbed the government’s asset forfeiture authority. It also added more due process guarantees to ensure that property will not be unjustly taken from innocent owners.

4.11.3 Restitution and Compensatory Fines

Restitution refers to the “return of a sum of money, an object, or the value of an object that the defendant wrongfully obtained in the course of committing the crime” (Scheb, J.M & Scheb, J.M. II, 2012). When the judge’s sentence includes restitution, the amount should be sufficient to place the victim in the same position they would have been had the crime not been committed.

Restitution orders can include the actual cost of destroyed property, medical bills, counseling fees, and lost wages. Ordering restitution is not always practical. When offenders are sentenced to incarceration, they frequently are unable to pay fines and restitution.