The city could significantly alter the way it collects fines for summonses if a proposal by City Council Speaker Corey Johnson is adopted, ushering in what he characterizes as a fairer and more equitable system.
The bill would establish a pilot program for “day fines,” a system common in Europe where fines are levied as a percentage of a person’s daily income for a certain number of days, rather than a fixed sum. The effect is that the burden of fines would be felt equally by everyone who receives them, instead of being disproportionately ruinous on low-income people.
As it stands, a fine for a summons is set by an administrative judge at a fixed amount. In turn, fines do not have equal impacts on each individual: a $100 fine can be a petty annoyance to a wealthy person, and an insurmountable burden on a low-income individual struggling to make rent.
“We are imposing fines without any consideration to what is financially significant to a person,” said Insha Rahman, director of strategy and new initiatives at the Vera Institute of Justice.
A day fine model would instead levy the penalty based on “ability to pay"; those without any income may end up paying fines of $1, or no fine at all.
“This has been a high priority for Speaker Johnson because these onerous fines disproportionately impact the poor,” a spokesperson for Johnson told Gothamist in a statement. “Establishing fines based on a person’s daily income for certain civil offenses will help make our system more fair. We recently heard the bill, and we expect to vote on it in the next few months.”
Johnson first alluded to the day fine proposal in a speech outlining his criminal justice reform agenda at John Jay College in May. “[Day fines] will not over-punish the poor and will not under-punish the rich,” he said at the time. The City Council’s Justice System and Governmental Operations committees recently held a hearing on the legislation.
If the bill passes, the pilot would begin no later than January of 2021. A second hearing to discuss the legislation hasn’t been scheduled yet.
The pilot program would be limited to noncriminal agency summonses adjudicated by the city’s Office of Administrative Trials and Hearings, commonly known as OATH. The pilot will take place within OATH because policies relating to the civil trials behemoth are controlled by the city, unlike the state-controlled criminal courts. If passed, it would have to begin sometime in 2020.
OATH and the Mayor’s Office of Criminal Justice (MOCJ) will pick around 10 to 15 offenses to be used for the pilot. The offenses, according to the spokesperson for Johnson, will be ones that are issued by agencies with some frequency and “hit a broad swath of society,” like failing to shovel snow from one’s walkway or to take out the trash.
“The point is to make sure that people who get hit with fines and can't pay, get fines that they can pay,” the spokesperson said.
The offenses decriminalized under the 2016 Criminal Justice Reform Act, such as public consumption of alcohol, public urination, and littering, will most likely not be included in the pilot, since community service can already be given for those offenses. Traffic offenses like speeding or parking tickets also won’t be included, as those are adjudicated by the DMV.
Johnson’s bill would do away with minimum fines for city agency rule violations. A nonprofit, chosen by the de Blasio administration, would conduct an assessment to determine a defendant’s income, which would then serve as the basis for any fine levied. No documentation would be required, instead relying on what amounts to the honor system to produce accurate assessments of income, to allow for undocumented immigrants to be part of the program.
Rahman agreed. “We just have to have a belief that people aren't scamming the system,” she said. Vera’s research notes that European countries like Sweden and Germany report high levels of accuracy in self-reporting.
The Vera Institute conducted a study of day fines in Staten Island Criminal Court in the late 1980s, finding an increase in collection rates by the court and a decrease in unpaid fines, meaning fewer people were unable to pay their fines. The experiment also yielded increased average fine amounts and revenue, though Rahman says that should not be the goal of a modern day scheme.
“The point can't be about revenue,” Rahman said. “It absolutely cannot be the incentive that drives these kinds of programs.”
Other American cities, such as Milwaukee and Bridgeport, have tried day fines in the past, but the system remains most common in Europe. Day fines were first introduced in Finland in 1921 and trickled throughout the continent in the succeeding decades. Finland’s day fine system is most famous for producing a $100,000 speeding ticket for a wealthy tech executive, proportionate to his income, but the proportionality holds at the bottom of the income rung.
OATH and MOCJ, for their part, expressed reservations about the program at last month’s hearing. “We believe that that model may, in some respects, be too procedurally complex and time-consuming to implement without significant modifications when it comes to tickets returnable to OATH,” said David Golden, administrative justice coordinator at MOCJ. Golden said that the model may be better suited for a “criminal rather than civil enforcement context.” Failure to pay criminal fines can result in jail time, while the worst punishment for civil fines is usually reflected in one’s credit score. Nonetheless, the administration’s representatives conceded that a day fine scheme could yield useful data.
A representative for MOCJ did not respond to a request for comment. Marisa Senigo, a spokesperson for OATH, said “[a]s the court, OATH will follow the law.”
On the other end, Lindsey Smith from Brooklyn Defender Services said that fairness cannot be achieved when enforcement remains biased.
“Even a proportionate fine regime,” Smith said, “will not establish a fair and equal punishment system because of the deep inequalities in enforcement that determine who receives a sanction in the first place.”
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