It’s Time to Dole Out Punishments Based on Wealth and Life Expectancy

Gavel down: Is it time to change the system of legal punishments?

Source Shutterstock, Composite by Ned Colin

Why you should care

The same dollar amounts spell different consequences for different people.

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Katharina G. Andresen, 22, was booked for drunk driving in 2017. Her fine: $30,400. Though still a student, she was estimated to be Norway’s richest woman due to wealth from her father’s company. And in Norway — along with Finland, Switzerland and, to a certain extent, the U.K. — traffic fines are based on a percentage of the offender’s income, not on a flat fee. Which is exactly how it should work.

A flat fee of $300 can be a life-changing disaster for some and merely an inconvenience for others. And for the truly wealthy? A drop in the bucket. But wealth shouldn’t be a determining factor in whether a speeding ticket hurts, because driving too fast or under the influence carries the same danger to others no matter how much you are worth.

If the point of penalties is to punish and deter, shouldn’t they all be personalized to fit an individual’s circumstances? Wealthy people should pay more in every area of criminal justice — just as those with shorter life expectancies should get shorter prison sentences. Black Americans, who live on average 3.2 years less than the general population, should be accommodated, as should elderly offenders or those with chronic health problems. Yet a study carried out on Florida sentencing by the Sarasota Herald-Tribune in 2016 found that quite the opposite happens: Black defendants who are found guilty of committing serious crime are sentenced to 68 percent more jail time than Whites who committed identical infractions and have identical legal histories.

It would be unconventional, yes.… But it would quite possibly be fully consistent with the United States Constitution.

Richard Albert, law professor, University of Texas at Austin

Of course, there might be legal barriers. Such a restructuring of penalties would likely lead to legal challenges under the Constitution’s equal protection clause and due process clause, among others, says Richard Albert, a constitutional law expert and professor at the University of Texas at Austin. But that doesn’t mean those challenges would be successful. “It would be unconventional, yes. It would attract resistance, yes. It would be more reflective of a European model of punishment, yes,” Albert says. “But it would quite possibly be fully consistent with the United States Constitution.”

Fines like Andresen’s make for schadenfreude-filled headlines. Did we smile when reading about a Finnish businessman fined $62,000 in 2015 for driving way over the speed limit? Sure. Rich people learning they aren’t above the law is always satisfying to hear about, and it should happen more often. But the real benefit of a law like this would actually be on the opposite end of the income scale

 

“It certainly helps in terms of creating more economic justice,” says Jhumpa Bhattacharya, vice president of programs and strategy at California’s Insight Center for Community Economic Development thank tank and the author of a recent report on income-based fines. “It means people who could not afford to pay would not have fines based on their actual incomes.” That particularly affects drivers of color who are often policed more stringently than other drivers. And, Bhattacharya says, people who can afford to pay a fine are much more likely to actually pay it.

The Insight Center advocated that the state of California stop suspending drivers’ licenses if they weren’t able to pay traffic fines — which, she says, often sends poor drivers into a spiral of debt. If they can’t pay the fine, they lose their ability to drive, which could mean losing their jobs and falling deeper into debt. Shortly after the report’s publication in 2017, the state government signed a bill to stop such suspensions. 

Furthermore, a 2012 study found that wealthy individuals were more likely to break the law while driving. A real disincentive to driving drunk or over the speed limit could potentially make roads safer. Norway and Switzerland have among the lowest traffic fatality rates in the world, with 2.2 and 2.6 deaths per year per 100,000 inhabitants, respectively, compared with 10.9 in the U.S. 

To be sure, it could be complicated to base prison terms on life expectancy given that prison terms shorten life expectancy. A 2013 analysis of prisoners in New York state showed that each year in prison could shorten overall life expectancy by two years. And racial bias in sentencing has proved extremely difficult to eradicate: The 2016 Florida study noted that Black defendants were at an enormous disadvantage, despite a system created to improve fairness by handing out punishments via a colorblind points system. Besides that, Albert notes, some penalties could be considered as violations of constitutional bans on excessive fines or cruel and unusual punishment.

Equality might be treating everyone the same. But equity — and a fairer system — requires a new way of thinking about punishment; not as a blunt instrument, but one that, tailored, could deter criminal acts by those who have every advantage, without creating an undue burden on those who have few.

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