2017] GRADUATING ECONOMIC SANCTIONS 55
failure to do so.1 As the national scope of these practices has come to light,2
an increasing and bipartisan array of constituents have called for a possible
reform: the graduation of economic sanctions according to a defendant’s
ability to pay.3 Graduation would constitute a major shift in jurisdictions
where there is no mechanism to consider a defendant’s financial condition,4
as well as in jurisdictions where judges may consider capacity to pay but are
afforded little guidance on how to do so.5
Neither the problems created by highly punitive practices related to
economic sanctions nor the prospect of graduation according to ability to pay
as a remedy are new. Tariff-fines, which are set at a specified amount or range
for each offense, have long served as the primary form of economic sanction
used in the United States.6 Tariff-fines are inherently regressive, having a
greater effect on the financial condition of a person of limited means than on
a person of wealth.7 Concerns that the use of tariff-fines were unfairly punitive
for people with financial instability, similar to those expressed today,8
garnered attention in the late 1980s when the ripple effect of tough-on-crime
legislation left jurisdictions across the United States with a burgeoning mass
incarceration and mass probation crisis.9 In that landscape, a push began for
the development of intermediate sanctions that would reside between prison
on one end of the punitive spectrum and simple probation on the other.10
Economic sanctions, understood as being “unambiguously punitive,” could
serve that intermediate role. 11 The tariff-fine design, however, contributed to
1. See Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65
UCLA L. REV. nn.1–38 and accompanying text (forthcoming 2018).
2. See infra notes 44–45 and accompanying text.
3. See infra note 46 and accompanying text.
4. See Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CALIF. L. REV. 277, 285–89
(2014) (describing current practices related to the imposition of economic sanctions, including
restrictions on judicial discretion).
5. See, e.g., MO. ANN. STAT. § 558.004(1) (West 2017) (“In determining the amount and
method of payment of a fine, the court shall, insofar as practicable, proportion the fine to the
burden that payment will impose in view of the financial resources of an individual.”).
6. UNITED STATES DEP’T OF JUSTICE, HOW TO USE STRUCTURED FINES (DAY FINES) AS AN
INTERMEDIATE SANCTION 1 (1996), https://www.ncjrs.gov/pdffiles/156242.pdf.
7. See id. (“When tariffs are set at low levels, the fines have little punitive or deterrent effect
on more affluent offenders. When they are set at higher levels, collecting the fine amount from
poor defendants is difficult or impossible, and, in many cases, these defendants are eventually
given jail sentences.”).
8. See SUSAN TURNER & JOAN PETERSILIA, DAY FINES IN FOUR U.S. JURISDICTIONS 1–2 (1996)
(describing judicial concerns about the use of economic sanctions as including the risk of “unduly
penalizing the poor”).
9. Michael Tonry & Mary Lynch, Intermediate Sanctions, 20 CRIME & JUST. 99, 99–100 (1996).
10. TURNER & PETERSILIA, supra note 8, at 1.
11. Douglas C. McDonald, Introduction: The Day Fine As a Means of Expa nding Judges’ Sentencing
Options, in DAY FINES IN AMERICAN COURTS: THE STATEN ISLAND AND MILWAUKEE EXPERIMENTS 1,
1 (Douglas McDonald ed., 1992); see also Judith A. Greene, Structuring Criminal Fines: Making an