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.

Monetary Punishments—Fines

Fines are generally viewed as the least severe punishment. They may either supplement imprisonment or probation or 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 [Website], 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.

Civil Forfeiture

In the United States, there’s a law called civil forfeiture that allows the government to take away the money or property earned from criminal activities. This is covered in sections 981-982 of the U.S. Code. Some laws even let the government seize property linked to illegal drug activities. However, these laws can be quite controversial. State courts often check if such forfeiture is fair by looking at constitutional rules about excessive fines.

In Austin v. United States in 1993 [Website], the Supreme Court said that civil forfeiture is like making a payment to the government as a punishment for a crime. The Court also pointed out that this kind of punishment should follow the rules of the Eighth Amendment’s Excessive Fines Clause. However, the Court left it to state and lower federal courts to decide what’s considered excessive in forfeiture cases.

To address some of these concerns, Congress passed the Civil Asset Forfeiture Reform Act in 2000. This law limits the government’s power to take assets and includes more steps to make sure property isn’t unfairly taken from innocent owners. This Act aims to balance the government’s ability to fight crime with the need to protect the rights of individuals.

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.

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“Substantive Law: Monetary Punishment Sentences” is adapted from “3.10. Substantive Law: Monetary Punishment Sentences” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee, licensed CC BY-NC-SA 4.0 include substantial revisions for clarity.