Abstract
Excerpted From: Gideon Parchomovsky and Alex Stein, Beyond The Prison Wall: Refundable Fines As An Alternative To Incarceration, 104 Wash. U. L. Rev. 227 (2026). (Full Document) (120 Footnotes omitted.)
In this Commentary, we introduce an innovative mechanism to reduce crime, lower recidivism, and improve rehabilitation: refundable fines. We propose that under appropriate circumstances, first-time offenders convicted of misdemeanors or mid-level felonies should not be sentenced to imprisonment or ordered to pay a traditional fine. Instead, we suggest that courts impose a refundable fine, a monetary penalty that will be returned to the offender--in installments or, in exceptional cases, in one payment--over a certain period, so long as she or he commits no further crimes. As we demonstrate, the use of refundable fines as a second-chance mechanism can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane. At the same time, it would provide meaningful incentives for offenders to avoid committing further offenses. Consequently, refundable fines may save considerable societal resources that may instead serve to advance other worthy goals.
Our proposal stems from the colossal failure of conventional punishments employed by the American criminal justice system: incarceration and standard fines.1
Overincarceration, a disheartening fact of life, is a poor reflection of the society that embraces or even tolerates it. Apart from causing unnecessary suffering and denying the convicted individual’s basic freedom, overincarceration breaks families, overcrowds prisons, and wastes billions of taxpayer dollars. Overincarceration is also inherently regressive: By and large, its ill-effects are absorbed by society’s most disadvantaged segments.4
The problem of overincarceration arises, in large part, because courts lack a viable alternative to imprisonment. As per accepted wisdom, a prison sentence is intended to be the criminal law’s last resort: a harsh punishment that courts should impose only when all else fails to fend off crime and rehabilitate the offender. However, when “all else” is practically an empty category, incarceration becomes the norm, and as a corollary, many people are unnecessarily--and, indeed, unjustifiably--sent to jail.6
The criminal justice system provides a sad, yet powerful, illustration of the definition of insanity as “doing the same thing over and over and expecting different results.” Few fair-minded observers would dispute the failures of the criminal justice system. Yet, we somehow expect the same criminal sanctions to miraculously produce different results for us. One can safely predict that it is not going to happen. The dismal state of the criminal justice system and, especially, over-incarceration and high recidivism rates call for innovative solutions. In this Commentary, we introduced one such solution: providing certain offenders a second chance through the imposition of a refundable fine. Refundable fines are uniquely tailored to promote the rehabilitation of offenders and to allow individuals who erred once to avoid future lapses. Furthermore, refundable fines can be tailored in a myriad of creative ways that would ensure this result. As we have demonstrated in this Commentary, refundable fines offer courts a range of equitable options that currently do not exist, allowing them to tailor punishments to the circumstances of the offenders. Just as importantly, in the long run, the use of refundable fines would impose only a minimal cost--if any--on society at large.
To the best of our knowledge, refundable fines have not been adopted anywhere in the world. That said, the prima facie case for implementing such fines, or at least experimenting with them, is overwhelming.
Gideon Parchomovsky is the Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School, and the Wachtell, Lipton, Rosen & Katz Chair in Corporate Law, Hebrew University School of Law, Israel.
Alex Stein is Justice of the Israel Supreme Court.
