A homeless man in California was sentenced Monday to four years in prison and ordered to pay $101 million for setting fires that burned down 160,000 acres of national forest. How's a guy who sleeps in a tent supposed to pay $101 million?
He isn't. Instead, he's expected to pay a tiny bit every month until he dies. The man, Steven Emory Butcher, currently receives $1,000 a month in Supplemental Security Income, which is basically welfare for the elderly, disabled, or blind. The federal court ordered that Butcher would pay $25 to Los Padres National Forest four times a year while in prison, and then $50 a month once he's released. No one expects him to deliver the entire $101 million—even a spokesman for the prosecutor acknowledged that the odds of Butcher paying it off were "extremely slim"—but they do expect him to pay what he can. If Butcher gets a job when he gets out of prison, the probation officer can modify the amount of monthly payments—the criminal equivalent of refinancing your mortgage.
So why fine him so much? It's the law. A federal judge is required by statute to make a defendant pay restitution when there's property damage incurred, even if he doesn't have the money. The amount of the restitution depends not on how much the criminal can afford to pay, but how much property the victim lost, as determined by the Federal Sentencing Guidelines. For example, the 2006 fire set by Butcher cost Los Padres National Forest more than $59 million in damages, plus fire suppression costs, according to an assessment by the U.S. Forest Service. Ultimately, the court settled on a $101 million price tag. Monetary loss can also be a factor in calculations of jail time—a practice that has proven controversial over the years. Loss-based sentencing is one reason Jeffrey Skilling and others convicted in financial fraud cases were sentenced to decades in prison.
There's a difference, though, between restitution fees and federal fines. Restitution goes to the victim of a crime—in this case, Los Padres National Forest. A fine goes to the state. If Butcher had deeper pockets, he might be ordered to pay the state up to $250,000 in fines as well. But the federal sentencing guidelines say that an individual defendant is off the hook if he "establishes that he is unable to pay and is not likely to become able to pay any fine."
Some foreign governments adjust punishments according to what criminals can pay. European countries including Finland and Germany have a system of "day-fines," in which judges take your income into account when assigning penalties. Instead of a flat rate, you're fined a certain portion of your daily disposable income. (In Finland it's usually about half, with a minimum fine of 6 euros.)
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Explainer thanks Marc Mauer of the Sentencing Project, Robert Weisberg of Stanford University, and attorney Mark Windsor.