E. One who injures property of the United States is subject to a fine of up to $10,000 if the damage exceeds $100, and a fine up to $1,000 if the damage is less than $100.11 One who injures property of the United States on a wildlife refuge, no matter how much the damage, is subject to a fine of only $500.12 F. Conversion by a clerk of funds which have come into his hands by virtue of his official position may be punished by up to ten years' imprisonment if the amount exceeds $100.13 Conversion by a clerk of funds which belong in the registry of the court also carries a maximum sentence of ten years in prison if the amount exceeds $100.14 But in the former case a fine can equal double the amount converted, while in the latter a fine cannot exceed the amount converted. Although there is no generalized provision in current law for relating the maximum fine to the gain or loss resulting from an offense, there are particularized instances in which such a relationship is made.15 3. Provisions of S. 1, as Reported Subsection (a) authorizes the use of fines in criminal sentencing. There are no offenses for which a fine may not be imposed. Subsection (b) establishes the maximum limits of fines for felonies, misdemeanors, and infractions, except to the extent that higher limits may be authorized by subsection (c) or by the section setting forth the offense.16 The fine levels set forth in the subsection are considerably higher than those generally authorized by current law, and are designed to establish an effective scale for pecuniary punishment and deterrence that will reflect current economic realities.17 Penalties for organizations are set at higher levels than those for individuals, following the New York model,18 in order to take cognizance of the fact that a sum of money that is sufficient to penalize or deter an individual may not necessarily be sufficient to penalize or deter an organization. Subsection (c) provides, as an alternative to the specific limits set forth in subsection (b), an overall limit of twice the gain derived from the offense or twice the loss caused by the offense. This follows the recommendation of the National Commission.19 The gain derived from the offense need not necessarily flow to the defendant himself; it is sufficient that at his instance someone has pecuniarily benefitted from the offense, whether that person is the defendant or a third party. Similarly, the provision of the subsection referring to property damage or other loss is intended to refer to damage or loss that is caused to any person, that is caused either by the defendant or an accomplice, and that is either a direct or an indirect result of the offense. The constitutionality of a statute relating the maximum fine to the gain or loss occasioned by the offense was upheld by the Supreme Court in Coffey v. County of Harlen.20 The subsection establishes a more 11 18 U.S.C. 1361. 12 18 U.S.C. 41. 13 18 U.S.C. 645. 14 18 U.S.C. 646. 15 E.g., 18 U.S. C. 201 (e). 645, 646. 10 Sections 1331 and 1335, for example, specifically authorize the imposition of a fine in any amount deemed just by the court. 17 Such substantially higher fine levels were recommended, inter alia, by the Committee on Reform of Federal Criminal Laws of the American Bar Association. Hearings, pp. 5425, 5817. 18 McKinney's N.Y. Crim. Proc. Law § 400.30 (1969). 19 Final Report. § 3301. The New York County Lawyers' Association deemed this to be an "extremely important" provision. Hearings, p. 5931. 20 204 U.S. 659 (1907). Section 2202. generalized approach than that found in existing federal statutes 21 for the economic offenses in which fines are most appropriate.22 It is intended by the Committee that the increased fines permitted by this section will help materially to penalize and deter white collar crime. Certainy no correctional aims can be achieved where the maximum sentence imposable is at such a low level that it can be regarded merely as an increase in the cost of doing business. The need for such increased penalties is particularly apparent with regard to a corporate defendant which today can often divide the burden of payment among its many stockholders to the extent that lesser penalties may not be felt either by the corporation or by its multiple owners. It might be noted at this point that fines collected in criminal cases under the Code will be paid into, and will form a substantial portion of, the new Victim Compensation Fund.23 The fact that under the Code the imposition of a fine has an indirect restitutional result adds an independent justification for the utilization of this sanction that previously has not existed in federal criminal law. 1. In General SECTION 2202. IMPOSITION OF FINE Section 2202 establishes criteria for imposition of a fine, provides for the specification of the time and method of payment of the fine, precludes the imposition of an alternative sentence should an imposed fine not be paid, and provides notice that agents of an organization are individually responsible for payment of the fine assessed against an organization. 2. Present Federal Law The provisions of this section generally are not the subject of any current Federal statutes, although imprisonment in lieu of the payment of a fine is inferentially authorized.24 3. Provisions of S. 1, as Reported Subsection (a) sets forth criteria to guide the court in determining whether to impose a fine, and in determining its amount and its means of payment. As is the case with regard to other potential sanctions, the court is required to consider both the nature and circumstances of the offense and the history and characteristics of the defendant, and is also required to consider the purposes of sentencing with regard to which a fine may be an appropriate response. Since a fine may often be a highly useful means of supplying just punishment and of deterring others from engaging in like offenses-particularly offenses affording the opportunity for monetary gain-and since it would be a rare case in which the imposition of a fine could be perceived to serve any incapacitative or rehabilitative value, the Committee has set forth only the former two purposes of sentencing as those to be considered by the court in evaluating the usefulness of a fine in any particular case. In addition to requiring the court's consideration of the above factors, subsection (a) also requires the court to consider the ability of the defendant to pay a fine in the amount and manner contemplated. It 21 See, e.g.. 18 U.S.C. 201 (e), 645. 22 See Working Papers, p. 1326. 23 See section 4111 of the Code. See also sections 3811-3813. 24 See 18 U.S.C. 3565. But see Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). is not the purpose of this provision to force an offender into lifetime bankruptcy. On the other hand, it is not the purpose of this section to limit artificially the amount of fine that may be imposed upon a wealthy defendant simply because such an amount, in the abstract, might appear to the ordinary individual to be substantial. The listed considerations, therefore, may tend to move the amount of a potential fine in either direction, depending upon the particular circumstances of the case before the court. It should be noted that the consideration involving the likelihood of the defendant's making of direct restitution or reparation to the victim of the offense is not meant to suggest to a court that it should avoid imposition of a fine, or should impose a fine only in a low amount, simply because of the theoretical possibility of the defendant's making such restitution. This consideration is designed to encourage the actual, pre-sentence making of direct restitution by requiring courts, in essence, to consider deducting from the fine otherwise to be imposed the amount reflecting the restitution a particular defendant may in fact have made or the amount necessary to achieve the restitution a defendant may actually have arranged to make. It should also be noted that among the "other pertinent equitable considerations" that a court might consider is, in relation to imposing a fine upon a corporation for an offense which was not designed directly or indirectly to benefit the corporation from a monetary standpoint, whether the fine should be in an amount that would cause serious disadvantage to the stockholders.25 Subsection (b) permits the court to authorize payment within a specified period of time or in installments. Such flexible payment schedules are currently authorized in the Federal system for a fine imposed as a condition of probation, and is authorized in may States.26 Clearly, if the defendant can earn the fine and pay it over a period of time, there seems little justification for choosing imprisonment or a lesser fine where the higher fine would otherwise be the more appropriate sentence. Subsection (c) prohibits the imposition of an alternative sentence to be served on nonpayment of the fine. The court's response to nonpayment is to be determined only after the event occurs, and after an inquiry into the reasons.27 Subsection (d) specifies that where an organization is fined it is the duty of the organization's employees or agents who are authorized to make disbursement of corporate assets to pay the fine from the assets of the organization. This subsection is designed to assume that a corporation will not be able to escape or delay liability by means of obfuscating the nature of its structure.28 25 Of course in a situation where the shareholders, even though totally unaware that an offense was being committed by the corporation, indirectly profited from the corporation's offense, a high monetary fine that would adversely affect either the dividends paid by the corporation or the trading value of its shares could well serve only to restore the status quo. 26 Working Papers, p. 1285. 27 This is in opposition to the existing statute, 18 U.S.C. 3565, but in line with constitutional requirements. See Williams v. Illinois, 399 U.S. 235 (1970). 28 The Committee had considered including specifically in this subsection a reference both to the disbursing officers of the organization and "their superiors". It was decided, however, that such a reference to "superiors" would be redundant since whatever authority a disbursing officer or cashier would have also be within the authority of every individual from his immediate superior through the chairman of the board. Cf. section 403 of the Code. 42-525-75-20 Section 2304. SECTION 2203. MODIFICATION OR REMISSION OF FINE 1. In General Section 2203 provides the flexibility necessary to accommodate changes in the financial condition of a defendant. Since section 2202 declares the relevance of economic background to the imposition of a fine, a modification or remission of the fine should be available when these factors are altered. The court is thus equipped to accommodate the well-intentioned defendant without creating unjustifiable impoverishment. An unexcused failure to pay a fine, however, may be prosecuted as any other criminal contempt.2 2. Present Federal Law 29 There is no counterpart to this section in existing Federal law; as previously noted, the current statute dealing with an offender who fails to pay a fine permits imprisonment until the fine is paid.3° 3. Provisions of S. 1, as Reported. Subsection (a) permits a defendant who has paid part of the fine imposed to petition the sentencing court for modification of the sentence. The petition may request an extension of the time for payment, modification in the method of payment, or remission of all or part of the balance outstanding. Subsection (b) authorizes the court to enter an order appropriate to the circumstances. These provision allow the reasonable implementation of the underlying principles in this chapter, as suggested by the American Bar Association, the Model Penal Code,32 and several State statutes.33 SECTION 2204. IMPLEMENTATION OF A SENTENCE OF FINE Section 2204 notes that implementation of a sentence to pay a fine is governed by the procedures outlined in sections 3811 through 3813 of the Code. Full discussion of these procedures accompanies the report on subchapter B of chapter 38. 29 See subchapter D of chapter 13. It should also be pointed out that the unexcused failure to pay a fine in the time and manner specified may, if payment was made a condition of probation, result in a revocation of probation and the imposition of any other sentence that originally was available. See sections 2103 (b) (2) and 2105 (a) (2). 30 18 U.S.C. 3565. 31 ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, § 2.6 (Approved Draft 1968). 32 Model Penal Code § 302.3 (P.O.D. 1962). 33 See also Working Papers, pp. 1286, 1328. CHAPTER 23.-IMPRISONMENT (Sections 2301-2305) Chapter 23 sets forth the basic considerations governing the imposition of sentences of imprisonment. It deals specifically with the terms of imprisonment authorized for the various classes of offenses; special offender treatment; parole ineligibility; criteria for imposing such sentences; collateral aspects of sentences of imprisonment; operation of multiple sentences; and calculation of terms of imprisonment. The chapter is closely interrelated with, and should be read in light of, the provisions concerning parole set forth in chapter 38. 1. In General SECTION 2301. SENTENCE OF IMPRISONMENT Section 2301 establishes the maximum authorized terms of imprisonment for the various classes of offenses. In addition, it permits longer terms of imprisonment for special offenders and specifies the authorized terms of parole ineligibility that determine the minimum period that a sentenced offender must spend in confinement. 2. Present Federal Law Present Federal criminal law, which has grown by sporadic addition and deletion, has resulted in there being authorized by the current title 18 at least seventeen levels of confinement, ranging from life imprisonment to thirty days. By combining imprisonment and fine variations some seventy-five different punishment levels may be isolated. Comparison of punishment provisions in particular offenses leads to the exposure of numerous apparent inconsistencies. In addition to the sentencing provisions found in the text of each individual criminal statute there are two general special offender sentencing provisions in current law.1 The effect of these two provisions is to allow a term of imprisonment of up to twenty-five years in certain clearly defined instances. Both require notice and a hearing with rights of counsel, confrontation, and compulsory process, as well as appellate review, if the special offender sentence is imposed. The application of these provisions has been exceedingly rare, as is true generally of State habitual offenders statutes. Eligibility for parole under current law is determined by the provisions of 18 U.S.C. 4202 and 4208 (a). Section 4202 provides that an offender may not be released on parole prior to the expiration of onethird of the sentence actually imposed.3 Section 4208 (a) allows the court, by affirmative action, to sentence the offender in such a manner that he will be eligible for parole either after a specified period equiva 1 18 U.S.C. 3575 and 21 U.S.C. 849. 2 But see, United States v. Tramunti, 377 F. Supp. 6 (S.D.N.Y. 1974). 3 An offender sentenced to life imprisonment or a term in excess of forty-five years is eligible for parole at the expiration of fifteen years. 18 U.S.C. 4202. |