other sanctions imposed, is punitive;" Sentencing Guidelines § 5E1.2(e); (3) reimbursement fines in an "amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered;" Sentencing Guidelines § 5E1.2(i); and (4) special assessments to support the Crime Victims Fund. Sentencing Guidelines § 5E1.3.
If the court does not impose a restitutionary fine, the Sentencing Reform Act of 1984 requires the court to explain why not. 18 USC § 3553(c). In this case, no restitution was ordered because the stolen money was fully recovered, and neither the credit union employees, nor anyone else, suffered injuries. The Crime Victims Fund assessment is not waivable and was imposed on each defendant. These matters are not in dispute. Rather, the present concern is the proper application of the penal and reimbursement fine provisions. Sentencing Guidelines § 5E1.2(a), (i).
In broad terms, the court finds the emphasis which the Guidelines place on fines to be salutary because as a general rule for most crimes, fines are greatly preferable to incarceration as a form of punishment. The Sentencing Guidelines also impose incarceration, often in significant amounts. But to the extent that the Guidelines increase the fine component relative to incarceration, the Guidelines are implementing the teachings of a growing scholarship on the subject of punishment.
This scholarship suggests that a regime of fines may be as or more effective as punishment than incarceration and far less costly. See Gary S. Becker and George J. Stigler, Law Enforcement, Malfeasance, and Compensation of Enforcers, 3 J Legal Stud 1 (1974). Of the desiderata advanced by Congress for criminal sentences -- "just punishment," deterrence, incapacitation and rehabilitation, 18 USC § 3553, -- incarceration directly fosters only the goal of incapacitation. Deterrence can often be achieved as well by a fine if set at appropriate levels. Because rehabilitation is probably more efficacious outside prisons, which appear to be breeding grounds for criminality, fines are probably a more desirable form of punishment than incarceration from that standpoint.
True enough, no amount of fine (or incarceration for that matter) may deter certain crimes and hence would not be appropriate; such crimes would include those where the probability of detection and conviction approaches zero or the cost to the victim approaches infinity (e.g., homicide). See Richard A. Posner, Economic Analysis of Law at 209-212 (Little Brown, 3d ed 1986).
But where workable, fines represent a more desirable form of punishment because they avoid the deadweight loss to society of incarceration. Not only are the taxpayers saddled with the considerable cost of keeping a defendant behind bars, but whatever productive endeavor the defendant might otherwise undertake is lost. Notably, incarceration does nothing to compensate the victims of crimes. Fines, on the other hand, require criminals to repay society for the harm they inflict on both their immediate victims and the commonweal and thus are a socially less costly form of punishment. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J Pol Econ 169 (1968). The ideal regime of punishments would rely on fines for the lion's share of crimes. The Sentencing Guidelines step in this direction, a move which should not be obscured by their continuing use of incarceration. The hitch to this penological approach, of course, is the uncertain ability of most criminals to pay their fines.
Defendants in this case have not, as they must, clearly established their inability to pay fines. United States v. Quan-Guerra, 929 F.2d 1425 (9th Cir 1991). Manuel Robinson's attorney requested that he be present at any interview by the probation officer, but then seemed always unavailable to aid the probation officer in eliciting the relevant facts. See United States v. Rafferty, 911 F.2d 227 (9th Cir 1990), for a similar situation. Only limited information was given to the probation officer on Bogan's financial situation, so the officer speculated, but did not determine, that Bogan was without resources. Elvis Robinson's presentence report inferred an inability to pay from his custody status, but the issue was not definitively addressed. Defendants' representation by assigned counsel is an indicator of present inability to pay a fine and may indicate a future inability as well. Sentencing Guidelines § 5E1.2 Appl. Note 3. But this indication is not conclusive and the burden of establishing present or future inability to pay rests with defendants, and even though they were offered the opportunity to supplement the record at the March 27 hearing, they declined to do so.
The presentencing reports establish the following pertinent facts:
-- Gregory Bogan is married and has provided assistance in the care of his five year old child and his wife's three other children aged nine, thirteen, and fifteen. Mrs. Bogan has a kidney problem that requires at home dialysis three times a day. Bogan received an inheritance that, properly managed, would have provided him a solid financial base, but which he appears to have squandered. He has a college degree and has worked in the restaurant business and as a hair-stylist. Bogan claims that respiratory problems impair his employability. He made no effort to explain how he could afford to own an antique firearm.
-- Elvis Robinson has one dependent child, approximately eight years old, from a previous relationship, and the woman with whom he is currently involved is about to have another child. Elvis Robinson dropped out of high school in twelfth grade. He was working as a carpenter at $ 280 a week and performing odd jobs at $ 200 to $ 300 a week in the months preceding the robbery.
-- Manuel Robinson has two dependent children, ages unspecified. He also left school in the twelfth grade. At the time of his guilty plea, Manuel Robinson was employed as a painter at $ 900 a month. He had also worked as a musician.
While no one can seriously contend that any of these defendants is a good bet to pay a significant fine, defendants have done very little to discharge their burden of proof on this issue. The court will notwithstanding assume arguendo that they have satisfied this burden. Given that assumption, defendants argue that under United States v. Seminole, 882 F.2d 441 (9th Cir. 1989), present inability to pay ends the inquiry and precludes the imposition of a fine. This misreads Seminole. First, Seminole interpreted United States Sentencing Commission, Guidelines Manual § 5E4.2(d)(2) (1988), a section which does not exist within the 1990 version applicable to this case. Seminole, 882 F.2d at 443.
Second, neither the specific language of Seminole, nor the relevant Sentencing Guidelines, forecloses a future determination of a defendant's ability to pay. "Because Seminole is currently indigent, the district court may only impose a fine if it decides Seminole has sufficient earning capacity to pay the fine following his release from prison [citing inapplicable Sentencing Guidelines § 5E4.2(d)(2)]." Seminole, 882 F.2d at 443 (emphasis supplied). Seminole does not hold that a sentencing court may not impose a fine contingent upon the requisite earning capacity determination being made at the time of defendants' release from prison. A fine conditioned upon a post-incarceration determination of ability to pay would meet the Seminole standard.
Moreover, even if Seminole contained as expansive a holding as defendants suggest, the Sentencing Guidelines distinguish current ability to pay from future ability to pay, introduce an additional factor of burden to dependents, and then rehire consideration of alternatives:
If the defendant establishes that (1) he is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine required by the preceding provisions, or (2) imposition of a fine would unduly burden the defendant's dependents, the court may impose a lesser fine or waive the fine. In these circumstances, the court shall consider alternative sanctions in lieu of all or a portion of the fine, and must still impose a total combined sanction that is punitive. Although any additional sanction not proscribed by the guidelines is permissible, community service is the generally preferable alternative in such instances.
Sentencing Guidelines § 5E1.2(f).
Thus, the court may not simply waive a fine because of defendants' present or future inability to pay or dependent burden, but must consider alternative sanctions to ensure a "total combined sanction that is punitive."
Sentencing Guidelines § 5E1.2(f) thus requires courts to impose punitive sanctions which cannot simply be avoided on a showing of present or future poverty. Such avoidance would also contradict the Guidelines' rejection of socioeconomic status as a relevant sentencing characteristic. Sentencing Guidelines § 5H1.10. Poor criminals would thereby be given a bankruptcy option not available to those able to pay. By directing courts to consider alternative sanctions in lieu of fines, the Guidelines clarify that no offenders are beyond the scope of punishment by reason of their economic status. In this respect, too, the Guidelines appear to reflect scholarly insights. See, e.g., Roger L. Faith and Robert D. Tollison, The Pricing of Surrogate Crime and Law Enforcement, 12 J Legal Stud 401 (1983).
Any other course diminishes the disincentives of criminal sanctions for persons able to avoid them by pleas of poverty. A poor offender inflicts no less harm on crime victims or on society than a well-to-do one. The Sentencing Guidelines' option of relieving an offender of the obligation to pay a fine is thus not some form of dispensation or solace for the offender's economic status. It is instead a recognition that some offenders may not be able to pay, and a direction to courts in those cases to impose an alternative punishment.
In this case, applying these provisions of the Guidelines achieves substantial justice and provides defendants the right incentives. Upon their release, defendants' conditions of supervised release will require them to pay a monetary fine or perform community service, or some of both, as directed by the probation office. Failure to fulfill these obligations will be deemed a violation of their release terms and result in appropriate penalties, including possible further incarceration. This direction is not an effort to lengthen defendants' incarceration through some back door in the sentencing laws. Instead, it is an incentive for these defendants to demonstrate responsibility.
For these reasons, the sentences of defendants herein are modified to impose the following fines and additional conditions of their period of supervised release:
Defendants shall pay the maximum penal fine of $ 100,000.00, and shall reimburse the government for the cost of their incarceration at $ 1,492 for each month and $ 115.30 for each month of supervised release, in such amounts and at such times as directed by the probation officer. This obligation should in no way preclude defendants' participation in the Federal Bureau of Prisons Inmate Financial Responsibility Program, established pursuant to 28 CFR § 545.10 et seq., during their incarceration. To the extent that this obligation remains unsatisfied at the time of defendants' release from incarceration, it is recommended to the probation officers overseeing defendants' supervised release that partial payments be credited to the penal and reimbursement fine components in proportion to the outstanding balance of each fine at the date of each payment and that defendants' fine obligations be calculated monthly by dividing the total fine obligation by the total months of supervised release.
Further, in the event that a defendant establishes to the satisfaction of the probation office an inability to pay all or any part of the fine obligations for any month during supervised release, each defendant shall perform community service in the amount of 500 hours per year during each year of supervised release for the maximum period of supervised release. At least 100 hours of community service shall be performed during each three month quarter of supervised release in which the fine obligation is not fully satisfied. Defendants shall be allowed to offset the community service obligation for any quarter with partial payment of fines in direct proportion to their total fine obligation for that period. The other terms of the judgments heretofore entered shall remain.
The clerk shall prepare modified judgments.
IT IS SO ORDERED.
DATED: April 24, 1992
VAUGHN R. WALKER
United States District Judge