Fines as punishment

A fine is an appropriate part of a sentence--but under what circumstances.

1. A fine may be imposed when it is considered the accused is unjustly enriched. For example, a theft of a servicemembers property and it is lost or destroyed.

2. If a fine is imposed, the punishment can include an "enforcement" provision through contingent confinement. So, if a fine is not paid, then the person could serve an announced time of confinement. Assuming, that is, that an Article 15, UCMJ, proceeding finds the person could not pay due to circumstances beyond their control.

3. However, the Court of Appeals for the Armed Forces has approved imposition of a fine where there is no evidence of unjust enrichment. See, e.g., United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 20015). I have myself occasionally asked for a fine in lieu of other punishments such as no confinement or a reduced confinement. For example, in one case I was able to negotiate an agreement where the convening authority disapproved a fine (or forfeitures) in the dollar amount the accused made "restitution" to the victim. There are other creative ways to use a fine as part of a sentence.

The conclusion that fines can be imposed even in the absence of unjust enrichment is supported by a historical analysis and this Court's precedent, along with intermediate military appellate case law. We now hold that, based on the plain language of the rule as well as the history of a fine as punishment, it is not unlawful to impose a fine where there is no unjust enrichment. Our inquiry does not end here, however, because we must now decide whether the $ 75,000 fine imposed on Appellant violated the Excessive Fines Clause of the Eighth Amendment.

61 M.J. at 372. The Court did not find the fine in Stebbins to be unlawful.

Caution.

Unlike forfeitures of pay, a fine is due and payable on the date of the convening authority action
-- in a lump sum, unless you can get further clemency through a payment plan.

So, why does a discussion of fines matter? Well, let's consider a new decision by the Navy-Marine Corps Court of Criminal Appeals.

In United States v. Parker, No. 201800066, 2019 CCA LEXIS 269 (N-MC. Ct. Crim. App. Jun. 27, 2019) (unpub.), the trial counsel argued and got the military judge to impose a fine. The fine was the exact amount of Parker's pay while he was in pretrial confinement. The NMCCA decided that this was a way to deprive Parker of his pay while in confinement and effectively unlawful pretrial punishment.

The trial counsel specifically asked the military judge to impose the approximate amount of pay the appellant received during his past 82 days of pretrial confinement, down to the last 54 cents. The military judge, presumably realizing it was improper to impose fines in partial dollar amounts, truncated the fine to $4,805.00.

No. 201800066, at *5-6.

By following the trial counsel's suggestion to impose a fine in the exact amount of the appellant's pay during pretrial confinement, the military judge effectively accomplished what would have constituted illegal pretrial punishment if done before trial. This action served to undercut the mandate in the Financial Management Regulation that service members are entitled to pay during military pretrial confinement. To be clear, a $4,805.00 fine is not inherently unreasonable given the notorious and ongoing nature of the appellant's misconduct. However, because the trial counsel's argument—and the military judge's apparent assent to that argument—demonstrates that the fine was imposed to claw back nearly every cent the appellant was paid during pretrial confinement, we find the sentence was inappropriately severe, having been imposed for an improper purpose.

Our conclusion is reinforced by the trial counsel's argument that the appellant's first term of pretrial confinement "failed to correct" the appellant's behavior. This argument suggests that the appellant's pretrial confinement was a form of punishment meant to correct his behavior rather than a means to ensure his presence at trial or to prevent him from engaging in serious criminal conduct. See R.C.M. 305(h)(2)(B). In short, the trial counsel argued that the appellant did not deserve to receive the pay he was legally entitled to during pretrial confinement, and the military judge apparently agreed.

No. 201800066 at *6-7.

To go back to Stebbins, and some of my own approaches. Can you get a pretrial agreement that disapproves forfeitures or a fine but commutes confinement? Here what you do is have an agreement that for each $50.00 paid to a victim in restitution will result in the suspension or disapproval of a day of confinement. Having been there and done something similar, think about it for your case and talk to your military defense lawyer about that as a potential resolution. 

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