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Political Science

1999

Restitutionary Rationale Richard Dagger

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Restitutionary Rationale

In civil law cases, courts routinely require people to make restitution to those they have accidentally, carelessly, or negligently damaged. In the criminal law, the practice of requiring offenders to make restitution-to restore their victims to the condition they enjoyed before the offense-is both less common and more controversial. Victims of crime typically have a right to file civil suits against those who have harmed them, but the state, acting through the criminal law, usually aims to punish criminals, not to exact restitution from them. Whether restitution ought to be part of the criminal remedy, however, or even to replace punishment altogether, is now the subject of a lively debate among legal philosophers. The idea of requiring restitution of criminals is an old one, but its modern revival owes much to the claim that the victims of crime are too often overlooked and ignored. Many people seek to protect the rights of the accused and many others to ensure swift and severe punishment for those convicted of crimes, according to this claim, but few seem interested in the rights of the victims. One remedy for this neglect, Stephen Schafer and others have suggested, is to ensure that the wrongdoer's punishment includes an effort to make restitution to his or her victim. "Correctional restitution holds a threefold promise," Schafer has argued, "in that it compensates the victim, relieves the state of some burden of responsibility, and permits the offender to pay his debt to society and to his victim." Promising as they may be, restitutionary schemes present a number of practical problems. One is that criminals cannot be required to make restitution to their victims unless they are apprehended and convicted-a fate that many criminals apparently escape. Another problem is the difficulty of determining the proper amount and form of restitution. Exactly what docs the criminal owe to the person he burgled or blinded, robbed or raped? What if money simply cannot repair the damage to the victim? However, these problems plague all forms of punishment, as the advocates of criminal restitution point out. Criminals cannot be fined or incarcerated until they arc caught and convicted, and the number of days, months, or years that an offender should serve in prison for committing a particular offense is by no means obvious, nor is it clear that their imprisonment always benefits their victims. A third R E S T I T U T I 0 N A R Y

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problem-that of exacting restitution from offenders once they have been convicted-seems to fall peculiarly on restitutionary schemes. No matter how poor or inept they may be, criminals are still capable of serving time in prison, yet they may be so poor and inept that they have no real chance of making complete restitution to their victims. The advocates' response to this problem is that some restitution is better than none. Moreover, restitution is more likely than imprisonment to contribute to the reform of criminals, because it is more likely to lead them to recognize and take responsibility for the wrong they have done. Interest in criminal restitution has also raised important issues in the philosophy of law. These issues involve the distinction between crimes and torts and, more generally, the nature of punishment. To some, restitutionary schemes threaten to collapse the distinction between crimes and torts-and therefore between criminals and tortfeasors. If we require the thug who maliciously assaults someone to make restitution to his or her victim, for example, we are placing the thug on a par with the hapless person who accidentally injures another person. Criminals, however, are not mere tortfeasors who must make amends for their misdeeds; they are dangerous culprits who deserve to be punished-that is, made to suffer-for the wrong they have done to others. Proponents of restitution respond to this complaint in two quite different ways. Most seem to take the position that restitution ought to be regarded as a form of or supplement to punishment-as punitive restitutionand therefore as no threat to the distinction between crimes and torts. Restitution can always be combined with imprisonment and other forms of punishment, they note, and even when it is not, the demands of restitution may well strike the offender as unpleasant. Such is likely to be the case when criminals must pay the full costs of their victims' suffering, including the costs of lost opportunities and of mental or emotional anguish, and the cost to society of capturing and convicting them as well. Other advocates of restitution respond by arguing for a system of pure restitution. According to this view, the distinction between crimes and torts obscures the fundamental requirement of justice: those who harm or violate the rights of others must repair the dam748

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age they have done. The aim of a criminal justice system, therefore, should be to secure the restitution of victims, not to punish criminals who have supposedly offended against the laws of society or the state. According to Randy Barnett, then crime may be defined, without any reference to mens rea, as "an offense by one individual against the rights of another. The victim has suffered a loss. Justice consists of the culpable offender making good the loss he has caused." These different responses to the problem of distinguishing crimes from torts indicate the main lines of an intramural debate between proponents of pure and punitive restitution. Pure restitutionists argue from a libertarian or neoclassical liberal position that takes society to be an aggregation of individuals who need a system of laws and law enforcement to protect their rights and interests against the accidents, mistakes, and depredations of other individuals. Punitive restitutionists insist that this point of view fails to account for important categories of criminal offense, especially crimes of endangerment, such as drunken driving and attempted but unsuccessful crimes. In addition, pure restitution cannot adequately provide for those who are not direct victims, but nevertheless suffer the "secondary harm," as noted by Margaret Holmgren, of crime when they must take extra precautions, pay higher insurance costs, or simply endure the suspicions and anxiety that accompany criminal activity. This concern for "secondary harm" may explain why restitutionary programs so often include a community service element, for if criminals owe a debt to society as well as to their particular victims, as punitive restitutionists believe, then the best way to discharge this debt is to make restitution to the community in the form of community service. References Barnett, Randy. "Restitution-A New Paradigm of Criminal Justice." Ethics 87 (1977), 279-301. Dagger, Richard. "Restitution-Pure or Punitive?" Criminal Justice Ethics 10 (1991), 29-39. Hajdin, Mane. "Criminals as Gamblers: A Modified Theory of Pure Restitution." Dialogue 26 (1987), 77-86. Henderson, Lynne N. "The Wrongs of Victim's Rights." Stanford Law Review 37 (1994), 937-1021.

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Holmgren, Margaret R. "Punishment as Restitution: The Rights of the Community." Criminal justice Ethics 2 (1983), 36-49. Schafer, Stephen. Compensation and Restitution to Victims of Crime. Montclair NJ: Patterson Smith, 1970. Richard Dagger