The over-penalisation of poverty through fines and fees

In many countries around the world, criminal justice fines disproportionately affect the poorest and most marginalised in society, effectively creating tiered justice systems. In this blog, Jean Galbraith and Rheem Brooks from the University of Pennsylvania Carey Law School summarise the findings of new research and discuss what international human rights and criminal justice communities can do to combat the use of poverty penalties.

Fines are a common sanction in countries in all regions of the world. They also pose a significant risk of economic discrimination. Unless they are perfectly scaled to defendants’ financial circumstances, they over-penalise people living in poverty both directly and by triggering additional sanctions where defendants cannot afford to pay. These effects add up to what we call “poverty penalties”: tougher punishments for low-income people resulting from inadequately scaled fines and their snowballing consequences.

In our article “Poverty Penalties as Human Rights Problems” published in the American Journal of International Law in July 2023 together with five other co-authors, we explore harmful poverty penalties around the world and discuss the human rights concerns they raise. We have drawn on the work of domestic scholars, activists, and journalists to identify laws or practices in many countries, including (among others): Australia, Brazil, China, Croatia, Denmark, the Democratic Republic of the Congo, France, Germany, Ghana, Great Britain, Hungary, India, Japan, Jordan, Kenya, Mexico, Nicaragua, Nigeria, Papua New Guinea, Poland, Qatar, Romania, Russia, South Korea, Switzerland, the United Kingdom, and the United States.

Examples of poverty penalties

Poverty penalties come in many forms. Consider the following varieties:

Using fines and costs without adequate attention to individual financial circumstances. Financial sanctions are often imposed without adequately considering the financial situation of the person charged. Many countries set mandatory minimums on certain fines. In Qatar, for example, the fine for intentionally bouncing a check is a minimum of QR 3,000. Even in countries that use “day fines” (income-based fines theoretically scaled to a person’s ability to pay), these fines may be set too high. In 2016, nearly 8,000 people entered German prisons for the petty crime of fare evasion because they couldn’t pay their day fines.

Incarcerating for failure to pay fines. In many countries, if you can’t pay a fine, the typical consequence is imprisonment. In Kenya, for example, Penal Code Section 28 provides that whenever a person is sentenced to a fine, the court may order prison time for defaults on payment of that fine, even if the offence was originally punishable only by a fine. These practices are especially troubling for people in poverty who may never be able to afford the fines in the first place.

Piling on more fines, costs, and fees. Failing to pay fines and fees can result in additional financial sanctions, including through the use of unrealistic installment payment plans. These practices can create a snowballing cycle of debt that is nearly impossible for people living in poverty to escape. For example, in South Korea, if someone cannot pay their fine for a minor offence, then Article 8 of the Punishment of Minor Offences Act provides that they must pay the fine plus a 20% surcharge within twenty days of the original payment deadline. Per Article 9 of that same act, failure to pay by the new deadline can result in additional fines.

Imposing other legal sanctions for defaulting on fine payments. People who fail to pay fines may be subject to other legal sanctions, like drivers’ license suspensions, denial of access to social welfare, or loss of voting privileges. In Brazil, for instance, people can be removed from voter rolls and lose their right to work for nonpayment of fines. Drivers’ license suspensions are common in the United States, where, as of 2021, at least 11 million people could not drive because of their inability to pay fines and fees.

Fining socially marginalised communities. Fining practices can target or disproportionally harm people who are already vulnerable because of race, gender, disability, or other protected statuses. During the COVID-19 lockdowns in the United Kingdom and France, for example, fines for violating the lockdown fell disproportionately on people of colour, raising concerns not just about disproportionate effects but also about intentional targeting.

Although we give only one or two examples for each of these practices here, our research uncovered many more (as discussed in our article). It is clear that nations around the world over-penalise low-income people through their uses of financial sanctions, even though the degree of over-penalisation can vary considerably from place to place.

Poverty penalties raise grave human rights concerns

Poverty penalties are a global issue. They have the effect of discriminating against low-income people, often lead to imprisonment, and can result in other disproportionately harsh punishments. These fining practices are counterproductive for states striving to achieve the Sustainable Development Goal of “[e]nd[ing] poverty in all its forms.”

Our article highlights how these practices may undermine international human rights instruments. In particular, these practices raise serious human rights concerns under the ICCPR and ICESCR. They can constitute discrimination on the basis of property. They can subject people to arbitrary arrest and detention because of their inability to pay. They can amount to disproportionally harsh punishments and intrude on the free enjoyment of economic rights by trapping low-income people in a cycle of never-ending debt. And they frequently target or disproportionately affect racial minorities and other socially marginalised groups. These are serious concerns that the international human rights community must address.

Innovators tackling poverty penalties offer a blueprint for future work

There is growing attention to the issue of poverty penalties, both domestically and internationally. Below are some examples of recent progress in this area:

• In South Korea, Jean Valjean Bank, a microcredit group, has begun lending money to people incarcerated for their inability to pay their criminal fines. Its goal is to create a more equitable system where people living in poverty are no longer imprisoned simply because they are unable to pay.
• In Ghana, the NGO Crime Check Foundation launched the Petty Offenders Project to pay criminal fines for people charged with petty offences, sentenced to pay fines that they could not pay, and subsequently ordered to serve between three to twelve months in prison for defaulting.
• In the United States, the highest court in Washington State struck down economic sanctions of $547 imposed for a parking infraction on a Native American man living in poverty and experiencing homelessness. The court held that the financial sanctions were excessive fines and therefore unconstitutional.
• The Campaign to Decriminalise Poverty and Status brought together an international group of advocates, experts, and activists to address the routine criminalisation of poverty around the world. The resulting Cape Declaration on Decriminalising Poverty and Status noted that the use of fines and other financial sanctions creates a “two-tier system of justice” that disproportionately harms low-income people.
• Several UN Special Rapporteurs have raised grave concerns about fines imposed on low-income people, including in the United States and Cambodia.

These are just some examples of this important work around the world. Our article identifies harmful fining practices, analyses how they raise grave human rights concerns, and proposes reforms. But our work was limited to the languages our research team speaks and the data we could find. We call on stakeholders to examine fining practices in their jurisdictions and evaluate whether these too can act as poverty penalties in practice. With more data, international human rights and criminal justice communities can begin to combat the scourge of poverty penalties.