Minister of Security and Justice Dilan Yeşilgöz plans to increase the rate of speeding fines by ten percent, as indicated in the Spring Memorandum published by the Dutch cabinet in April. The minister is doing this to cover the budget shortfall of 150 million euros. However, can this be done? Fines are meant to punish and deter possible offenders, not primarily as a source of income for the government, as taxes are. Elena Kantorowicz-Reznichenko, Professor of Quantitative Empirical Legal Studies at Erasmus School of Law, explains what fines are intended for and when they can or can not be increased.
According to Kantorowicz-Reznichenko, it is not necessarily desirable or legal to increase fines as an extra source of income for the state: “Criminal punishment deprives a person of their property or freedom. Those are both constitutional rights of individuals and, therefore, can be only done with justification and by law.”
Retribution and deterrence
Punishments in most countries, including the Netherlands, are meant to retribute, deter, or both. “Retribution means that a person needs to receive punishment because they committed the crime. This is a past-looking approach, which requires a proportional punishment to the severity of the offence. Deterrence involves a forward-looking approach according to which individuals should be punished to deter them and others from committing the crime (again). Therefore, a fine should be only increased if the logic is to enhance deterrence, or if the severity of the crime justifies it.”, explains Kantorowicz-Reznichenko. “Furthermore, a punishment has an expressive function. It is meant to send a signal of the level of the condemnation against specific behaviour. Mixing up considerations of punishment with budget concerns removes the ability of the sanction to serve its expressive function.”
Assuming the goals of retribution and deterrence, a fine may only be increased if it better fits the seriousness of the offence or helps deter individuals and not to fill a budget gap.
Offenders pay
However, according to Kantorowicz-Reznichenko, one argument favours the minister’s plans: “There is some appeal in the idea that the enforcement costs would be covered by the offenders (whom this enforcement targets) rather than the taxpayers. Taxes are meant to redistribute resources from the wealthier to the poorer, to cover the costs of public goods, as well as deal with externalities. Speed cameras and trajectory speed controls constitute public goods. Therefore, the rationale of the legislators might be that those committing the offences and creating the need to have speed cameras should cover their costs. This to some extent resembles the practice in the US where besides fines, convicted offenders are sometimes also required to cover their court fees and the correctional institutions fees”
Does this mean that the plans of the legislator are legally sound? According to the Professor of Quantitative Empirical Legal Studies, that is controversial: “Taking all together, there might be a justification to impose higher costs of the public good provision in the case of traffic offences on the violators. This can be equated to road tolls where those who drive (use the road) bear a heavier burden of the public good of good roads than taxpayers in general. However, to respect the common justifications of punishment, this should be in a separate form from the fine (e.g., fees). The size of the fine itself should be only determined by the goals of punishment.”
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