Restitution as a Penal Aim Research Paper

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Across the past century, restitution has become an increasingly prominent and formalized aspect of criminal sentencing. When included in a sentence, an award of restitution requires an offender to pay compensation to her victim. Restitution is most commonly justified as a way to provide assistance to victims more quickly and less expensively than would be possible through a civil lawsuit. There are concerns, however, that restitution blurs the line between crimes and torts, and in various practical and symbolic ways may undermine the traditionally recognized objectives of the criminal-justice system.

Restitution advocates have responded in two quite different veins. Some have argued that restitution not only furthers the end of victim compensation, but also serves more conventional criminal-justice objectives, such as offender rehabilitation and atonement. Another, more radical response is that the traditional approaches to criminal punishment are fundamentally flawed, and should be supplanted by victim compensation as the system’s overriding objective. The latter response has attracted much interest in the scholarly literature, but has yet to gain much support among policymakers.

As policymakers have sought to enhance victims’ restitution rights, a variety of practical problems have emerged. Many of these problems seem to turn on the same basic question: To what extent should restitution rules seek to replicate in the criminal system the same damages awards that could be obtained through tort litigation in the civil system? Different jurisdictions have answered this question in quite different ways, which may reflect underlying uncertainties as to whether and how victim compensation can be reconciled with the traditional processes and purposes of criminal punishment.

Fundamentals

Definition Of Restitution

Restitution refers to compensation paid by an offender to a victim. More specifically, as understood here, restitution refers to a payment ordered by a court in connection with the resolution of a criminal case. Functionally, a restitution award has many similarities to a damages award in a civil case. Indeed, the term “restitution” can also be used to refer to a type of civil remedy. Here, however, the term is used only as it relates to criminal litigation.

Restitution differs from other sorts of monetary awards in criminal cases, such as fines and assessments of court costs, inasmuch as restitution is designed to compensate a victim for an injury. The amount of the payment is determined by reference to what is necessary to repair or offset some or all of the victim’s losses, and the intended beneficiary is the victim herself.

Although restitution normally involves a discrete victim or set of victims with individualized injuries, it is also possible to conceptualize an award of restitution based on a more diffuse, shared injury, such as the psychological distress experienced by all of the members of a community when a frightening crime occurs in their middle. Likewise, although restitution normally involves an award of money or other property, it is also possible to imagine a restitutionary payment in the form of services. Court-ordered community service might thus be seen as having a restitutionary character.

Formalization Of Restitution As An Aspect Of American Criminal Procedure

Since the late nineteenth century, restitution has become a progressively more routine and formalized aspect of criminal procedure in the United States. The rise of restitution was initially linked to the rise of probation and suspended sentences (Harland 1982). Endowed with wide discretion in setting conditions for probation, judges often found it appropriate to require probationers to pay compensation to their victims as a condition of avoiding prison. For much of the twentieth century, restitution was awarded in such cases with little or no express statutory guidance.

In the latter decades of the twentieth century, American legislatures became increasingly active in promoting restitution. This resulted from a confluence of factors. The most important was likely the appearance of a politically powerful victims’ rights movement. Reflecting a growing sensitivity to the situation of crime victims, most American states adopted victim-compensation laws between the 1960s and 1980s (Harland 1982). These compensation statutes, however, were not true restitution laws, as they contemplated a nonjudicial process administered by an administrative board, from which victims could obtain compensation even if their victimizers had not been apprehended and convicted. In any event, the laws varied widely in their eligibility limitations and maximum awards Holezel (1980)). Perhaps reflecting a sense of dissatisfaction with these compensation schemes, the victims’ rights movement shifted its attention to achieving various reforms in court procedures, including establishing clearer rights to restitution.

Complementing the pro-restitution advocacy of the victims’ rights movement, the 1970s and 1980s saw a breakdown of the rehabilitative paradigm in criminal justice and a new emphasis on holding offenders accountable for their crimes. This emphasis on accountability, in lieu of treatment, often took the form of longer, harsher prison sentences. To some, however, accountability implied not harshness per se, but rather the performance of certain apologetic or reparative actions by the offender through which he or she might achieve a measure of atonement and reconciliation with a victim or the wider community (Garvey 1999). This view of accountability, which found effective expression in many communities through the restorative-justice movement, was quite amenable to restitution (Umbreit et al. 2005). Of course, advocates of greater harshness might also welcome greater use of restitution, so long as restitution serves as an additional imposition on the offender, and not as a substitute for other forms of hard treatment.

Reflecting these various considerations, by the early 2000s, about one-third of American states and the federal government had adopted mandatory restitution laws (American Bar Association 2004). For instance, the federal Mandatory Victims Restitution Act of 1996 (MVRA) requires judges to order restitution as part of the sentence imposed for most federal offenses in which there is a victim. The law specifies, moreover, that a restitution order must cover the full amount of the victim’s injuries, regardless of the offender’s ability to pay. Reflecting the change from permissive to mandatory restitution, the amount of “federal criminal debt” in the United States increased from about $6 billion to more than $50 billion in the first decade after the MVRA’s enactment, with about $1.8 billion in restitution collected in 2007 alone (Dickman 2009).

The growing popularity of such laws in the United States might also be understood against the backdrop of the nation’s “politics of mistrust” in the latter decades of the twentieth century and related legislative efforts to curtail judicial sentencing discretion (Zimring et al. 2001). Despite increasing legislative emphasis on restitution, however, concerns remain that judges and other criminal-justice professionals have not given sufficient priority to imposing and enforcing restitutionary obligations (American Bar Association 2004).

International Developments

The United States has hardly been alone in enhancing the role of restitution in criminal procedure in recent years, or more generally in displaying greater concern for the situation of crime victims. For instance, in 1985, the United Nations General Assembly adopted a “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,” which, among other things, encouraged restitution and recommended that governments “should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases.”

Similarly, a 2004 directive from the Council of the European Union mandates that all member states “shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.” Indeed, even before then, most members already had systems in place for victim compensation by the state (European Commission 2001). However, despite a 1985 recommendation by the Council of Europe’s Committee of Ministers that criminal courts be given the authority to order restitution, the EU has stopped short of mandating this of its members. Rather, a 2001 “Framework Decision on the Standing of Victims in Criminal Proceedings” only requires that any compensation decisions in criminal proceedings be made within reasonable time limits.

Many individual nations do, in fact, incorporate restitution into their criminal processes, although this is far from universal. In England and Wales, for instance, the Powers of Criminal Courts (Sentencing) Act of 2000 requires courts to consider ordering compensation and to provide reasons when they do not do so (Doak 2008). Germany permits restitution as a condition of probation, and also makes available a hybrid process in which victims can attach a civil tort claim to criminal proceedings (Loffelmann 2006). As a final example, France also permits victims to claim compensation as part of the criminal proceedings, and has facilitated their ability to do so by, for instance, excusing them from having to appear in court in order to make a claim (Hodgson 2002).

Key Issues And Controversies

Justification Of Restitution

Since crime victims typically have civil remedies available as a means to obtain compensation from offenders (at least as a theoretical matter), the creation of an additional compensation mechanism through the criminal process seems to require some justification beyond simply a desire to shift losses from victims to offenders. The most obvious such justification would be convenience for victims. If restitution is available, then the victim may be spared the trouble and expense of initiating her own civil proceeding, and instead take advantage of what may be a speedier award through procedures that may be less formal, less costly, and more favorable in a number of other respects than conventional civil procedures. Moreover, the court system, too, may reduce its costs by folding what would have been a separate civil case into the criminal proceeding. Indeed, even some defendants might have cause to welcome the apparent efficiencies.

Yet, there may be problems with viewing restitution as simply a more efficient way to effectuate recoveries that could have been had in the civil system. Liability standards for restitution may be structured differently than tort liability standards, or may be understood differently by criminal lawyers and judges than civil lawyers and judges. Different procedural rules (e.g., with respect to rules of evidence and right to a jury trial) may produce different results in restitution litigation than in civil tort litigation. Moreover, the prosecutor and criminal judge have an extraordinary source of leverage over many criminal defendants that is generally not available in civil litigation: If the prosecutor or judge takes a real interest in ensuring a certain level of restitution, the defendant who declines to cooperate may find herself facing a threat of increased incarceration. The restitution defendant may thus feel considerably more pressure than the civil defendant to “settle” the dispute on terms favorable to the victim. (On the other side, however, if the victim relies on a prosecutor to press her claim in a restitution proceeding, the victim may receive less zealous advocacy than a civil lawyer would provide, depending on how the prosecutor prioritizes restitution among the other disparate objectives of criminal prosecution.) More generally, the incarceration-related decisions that must be made in many criminal cases may overshadow restitution decisions and lead to more careless handling of claims than would be provided in a civil lawsuit. All of these considerations suggest that restitution outcomes may often deviate from civil litigation outcomes.

To the extent that victims fare worse in restitution, the outcomes may perhaps be justified on the basis of greater speed in recovery, reduced transaction costs, and the victim’s freedom to press claims in civil court in addition to or in lieu of restitution claims. It is not immediately clear, however, on what basis greater awards in restitution proceedings would be justified. This might require a theory to explain why conventional civil remedies are substantively inadequate for some types of crime victims, as opposed merely to being slower or more costly to obtain. In any event, it appears that the defense of restitution as simply an expedited form of civil recovery may be a bit more complicated than some proponents of restitution have made out.

If one line of criticism of restitution would focus on its potential to upset the balance struck in the civil system between the rights and interests of injurers and the injured, another line of criticism would highlight the potential of restitution to undermine the established priorities of the criminal system. The imposition of large financial burdens on some offenders, especially those whose economic situation is already precarious, may impair their prospects for rehabilitation and successful reintegration into the community. To the extent that incarceration time is traded off against restitution in plea negotiations or at sentencing, it is possible that the deterrence or incapacitation aims of criminal law may be compromised. (To be sure, the same trade-offs might occur even if restitution were not a formal part of the criminal process – e.g., a judge might, as a matter of discretion, treat voluntary reparations as a mitigating factor at sentencing – but the endorsement of restitution as an express objective of the criminal process might make such tradeoffs more common.) The time and resources expended in litigating and adjudicating restitution claims in some cases might mean that offenders in other cases are able to avoid punishment or receive inadequate punishment. More generally, the increasing prominence of restitution in criminal litigation might create an impression that the criminal-justice system has been co-opted by private interests, which may undermine the ability of the system to pronounce condemnation on behalf of the community in a credible fashion. The system’s credibility may also suffer if victims are commonly awarded large sums in restitution that offenders are not realistically able to pay.

In light of all of these concerns, a persuasive justification for restitution might have to show an organic connection between restitution and the particular ends of the criminal-justice system; simply providing a more convenient forum for advancing the ends of the civil-justice system may not be sufficient. Moreover, having a clearer sense of how restitution is capable of contributing to the purposes of punishment might help policymakers to sort out some of the difficult design questions, such as whether ability to pay should be taken into account in making a restitution award.

Proponents have indeed argued that restitution does serve conventional criminal-justice ends. For instance, while restitution obligations may in some respects impede rehabilitation, restitution may also be seen as “an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his or her actions have caused. Such a penalty will affect the defendant differently from a traditional fine, paid to the state as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused” (People v. Moser, 50 Cal. App. 4th 130 (1996)). To be sure, this view of restitution as rehabilitative seems to rest on a very different sense of the rehabilitative project than the social-service model of earlier generations; here, we seem closer in spirit to atonement-based approaches, about which more will be said below.

Likewise, in the abstract, restitution seems capable of producing helpful deterrent effects, at least in the lower-level sorts of cases in which there is little risk of lengthy incarceration (the fear of which would presumably overshadow the threat of monetary penalties). On the other hand, even in lower-level cases, it is not immediately clear that restitution offers any marginal deterrence benefits when it is simply layered on top of civil remedies and criminal fines and forfeiture; for the added threat to matter, one would seemingly need a prospective offender who has both an ability to pay the full set of potential penalties and a nuanced understanding of law and legal process – not to mention a sufficient fear of getting caught such that the person’s estimation of potential financial penalties would matter.

At first blush, restitution might also be seen as advancing the ends of retributive proportionality. And, indeed, it is hard to deny the “eye for an eye” appeal of imposing on an offender a sanction that is financially equivalent to the victim’s losses. Yet, the thrust of modern retributive theory has generally been to emphasize intended (or at least culpably risked) harm, rather than actual harm, as the central determinant of desert (Moore 1997). Then, too, modern retributive theory has also tended to focus on ordinal, rather than cardinal, proportionality, that is, seeking to ensure that relatively more blameworthy offenders receive relatively harsher punishments, rather than striving for some absolute moral equivalence between the crime and the sentence (Von Hirsch 1998). Restitution may thus operate in ways that are significantly out of step with some views of retributive proportionality. For instance, a person convicted of a minor, unintentional traffic violation might find herself facing a ruinous restitution award if her violation by some unhappy chance resulted in a catastrophic accident – an award that might make her total punishment exceed those of other, more blameworthy offenders who intended serious harm but did not succeed in bringing it about. On the other hand, it may be easier to imagine such hypotheticals than it is to find them in practice. Moreover, concerns may be mitigated by limiting restitution recoveries to those harms for which the offender had some minimally required level of culpability. Yet, even at that, restitution may introduce some undesirable administrative complexity if one’s basic approach to punishment focuses more on the severity of a sentence than on the form that it takes; a system of fines pursuant to standard guidelines, for instance, may be a much more straightforward manner of ensuring that the severity of each offender’s sentence is precisely calibrated to the relative blameworthiness of her conduct.

Atonement-oriented approaches may be even more amenable to restitution. Advocates of such approaches tend to see proportionality in relatively flexible terms (Duff 2001). The aim of punishment on this view is not proportionality per se, but rather the communication of moral condemnation of the offense in the hope that the offender will come to repent what she has done, undertake reparative actions, and achieve reconciliation with the victim and the wider community. Punishment should thus take the form of a sort of secular penance, which will serve to focus the offender’s attention on the offense and provide an opportunity to make reparations. (This approach to punishment overlaps considerably with restorative justice, although they might be distinguished to the extent that restorative justice – a label applied to a diverse set of approaches to crime and social conflict – is seen as an alternative to community condemnation, or as merely a set of procedures to be employed without regard to the character of the outcome (Duff 2005)).

Restitution would seem a quite appropriate – perhaps even a necessary – aspect of an atonement-oriented criminal process. The presentation and adjudication of restitution claims may serve to focus the offender’s attention on the consequences of her conduct and why that conduct is viewed as blameworthy by the community. Moreover, the payment of restitution affords the offender with an opportunity to take responsibility for the offense and to establish conditions that may facilitate reconciliation. Indeed, on this view, it may be easier to see why restitution is superior to fines, for fines may appear confusingly similar in form to taxes or even licensing fees, and thereby detract from a sentence’s ability to communicate moral condemnation (Duff 2001). To be sure, as with other retributive approaches, it might be necessary to limit restitution to culpably caused harms to the extent that harms without culpability are not fit for condemnation.

In sum, it does seem possible to justify restitution based on various familiar purposes of punishment. How persuasive the justification is may depend both on the specifics of the restitution law or practice at issue and on one’s views about which purpose or purposes of punishment ought to receive greatest emphasis. Additionally, the foregoing discussion should make clear that there may be significant practical tensions between the conventional purposes of punishment and the hope that restitution may serve as a speedier and less costly alternative to civil litigation. For instance, the strict liability and simple negligence standards that govern some civil tort claims may be difficult to reconcile with at least some versions of retributivism. Incorporating these approaches to liability into the criminal process risks undermining the project of moral condemnation that many see as a central animating principle of the criminal-justice system.

Restitution As A “New Paradigm”

The previous discussion considered how restitution might be justified as one part of a criminal-justice system that maintains the conventionally recognized aims and penal options of Western criminal law in the modern period. Restitution, however, may instead be seen more radically as an alternative, fundamentally different approach to criminal justice – one that might wholly displace important aspects of current practice, such as the use of incarceration as a standard punishment for serious crime.

Perhaps most notably in this vein, the American legal scholar Randy Barnett proposed restitution as a “new paradigm of criminal justice” in a much discussed 1977 article. At the center of his proposal lay a privatized vision of criminal justice:

The idea of restitution is actually quite simple. It views crime 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. It calls for a complete refocusing of our image of crime… . Where once we saw an offense against society, we now see an offense against an individual victim. In a way, it is a common sense view of crime. The robber did not rob society; he robbed the victim. His debt, therefore, is not to society; it is to the victim. (Barnett 1977, pp. 287–88)

Barnett’s proposal contemplated a radically reformed criminal process. Following conviction of a crime, an offender would be sentenced to a restitution period. The amount of the award would be determined in light of civil tort principles. If the offender were not able to make immediate payment in full, then the victim would have a legal claim against the offender’s future wages. If the offender is unable to gain employment or is found to be “untrustworthy,” the offender would be confined to an employment project. “This would be an industrial enterprise, preferably run by a private concern, which would produce actual goods or services” (289). Here, the offender would earn wages, and would secure her release upon satisfaction of the restitution award.

Barnett identified several advantages to his reform, which he termed “pure restitution.” These included that victims would receive assistance, victims would have greater incentives to report crimes and appear at trial, offenders would have a mechanism for relieving their “guilt and anxiety,” and taxpayers would be spared the expense of supporting idle prison inmates.

Barnett’s proposal has much in common with various restorative-justice approaches, which are also often presented as a radical alternative, and not merely a supplement, to conventional criminal justice. Like Barnett, some restorativists seek to privatize our understanding of crime and punishment (Christie 1978). Many also share Barnett’s prioritization of victim compensation and his distaste for straight incarceration as a useless, possibly even counterproductive, form of punishment. Additionally, Barnett contemplates routine, direct negotiation between offenders and victims, which is a centerpiece of many restorative-justice programs. Restorativists, however, would not be so narrowly focused on financial compensation as the subject of negotiation, but might instead emphasize to an equal or even greater extent apology, dialogue for its own sake, community service or service to the victim, ceremonial shaming and reintegration, and treatment. More generally, Barnett’s approach runs counter to the communitarian and moralistic tendencies of many restorativists, who might object to the extent to which Barnett would marginalize the wider community, create a two-track penal system based on ability to pay, and monetize and commodify wrongdoing. (In addition to the presumably for-profit “employment projects” that will enforce restitution obligations, Barnett envisions the development of crime insurance markets and participation by insurance companies in the criminal process.)

Thus, despite some similarities with restorative justice, Barnett’s proposal is better thought of as an expression of libertarian political values, and as being related to neoclassical law and economics, the proponents of which have also urged the substitution of monetary penalties over imprisonment on efficiency grounds (Posner 1980).

In any event, Barnett’s proposal has been subject to considerable criticism. It is said that Barnett fails to appreciate the condemnatory aspect of punishment, which serves an important role in reinforcing collective moral norms (Miller 1978). Likewise, Barnett’s emphasis on monetary penalties fails to address the particular dignitary harms suffered by the victims of intentional crimes (as contrasted with the qualitatively different harms suffered as a result of accidental torts) (Pilon 1978). Indeed, monetary awards for serious crimes against life or bodily integrity, such as murder or rape, might be seen as degrading and morally offensive (Miller 2009). More generally, restitution “sends the wrong message”: “Punishment is not something you can buy your way out of, as if you could simply purchase a license to commit a crime” (Flanders 2006).

Critics wonder, moreover, how punishment would be available in Barnett’s system for such crimes as cruelty to animals, harm to public institutions, attempts, and driving recklessly or while intoxicated (Miller 1978). Similarly, consensual transactions like drug distribution and prostitution would seemingly lie beyond punishment, notwithstanding views that these acts are inherently immoral (Miller 2009).

Critics also contend that Barnett faces a dilemma in how to handle restitution for unforeseeable injuries. Miller (2009) gives the example of two thieves who steal two identical jewelry boxes. It turns out, however, that one victim’s jewelry box had great sentimental value because it was a gift from her deceased mother; to the other victim, the value of the jewelry box is simply the market price. If Barnett wishes to emphasize victim compensation, then it would seem that the two thieves should be subject to quite different restitution orders (assuming that the stolen items themselves cannot be returned). Yet, from the thieves’ perspective, precisely the same crime has been committed against each victim. Differential punishment would thus violate the principle that equal punishments should be imposed for equally blameworthy conduct. Similar objections might be made to pure restitution’s inability to recognize distinctions between intentional and accidental harms (Miller 2009).

Finally, critics argue also argue that Barnett has failed to address numerous practical difficulties with his proposal in a convincing fashion. For instance, Miller (2009) contends that no satisfactory mechanism is available for translating emotional harms into awards of money damages, particularly in view of the way that such valuations may be influenced by the sex, race, and class of the victim and of the person doing the valuation. For his part, Hershenov (1999) focuses on the challenge posed by unskilled or disabled offenders who cannot provide labor of sufficient value to offset the costs of their confinement, let alone to compensate victims. Additionally, there are concerns that a pure restitution system would not adequately deter crime, because no “premium” is added to the punishment to offset the likelihood that a prospective criminal will avoid apprehension or conviction (Barnett 1998).

To a considerable extent, the debate over pure restitution turns on deep questions of political philosophy and punishment theory. Barnett’s proposal is likely to resonate with those who are especially distrustful of the state’s use of coercive power against individual citizens, who reject the enforcement of paternalistic moral norms, and who find victim compensation a more legitimate or attractive project for the courts than enhancing social solidarity. Thus, the fact that pure restitution has not had much apparent influence among policymakers may, in part, reflect the continuing strength of communitarian impulses in defining and responding to crime.

But, as a practical matter, perhaps the greatest difficulty for pure restitution has been perceptions that it is not up to the task of protecting public safety – what Barnett himself characterizes as the “most obvious objection” to his proposal (Barnett 1998, p. 216). Barnett responds, however, that existing systems of deterrence, incapacitation, and rehabilitation are dysfunctional in various ways and perhaps even counterproductive to the objective of crime control. He notes, too, that his proposal may carry greater deterrence benefits than first appears. This is because compensation must be paid not merely for direct victim injuries, but also for the costs of detection, apprehension, and prosecution of the crime, and because these financial incentives will cause victims and law-enforcement agencies to put more effort into ensuring that offenders are caught and punished. Finally, Barnett notes that pure restitution is not incompatible with robust rights of self-defense and some limited use of preventive detention by the state, both of which may also serve crime-control ends.

Greater acceptance of pure restitution in the political system may have to wait for more widespread agreement that incarceration-oriented approaches are as ineffective as Barnett claims. Even at that, it is not clear that pure restitution would be a more appealing alternative than, say, restorative justice or a revival of treatment-oriented rehabilitation.

Design And Implementation Questions

In designing and implementing restitution programs, legislatures and court personnel have confronted a multitude of difficult questions. A few are briefly described below.

First, restitution orders may be limited to injuries caused by the formal offense of conviction or may reach out to embrace harms caused by any related criminal conduct. For instance, imagine that a burglar is caught in the act by police. A search of the burglar’s home then uncovers evidence that she was also responsible for nine other burglaries. The prosecutor initially charges the offender with all ten burglaries, but then agrees to drop five of the charges in exchange for the offender’s guilty plea to the remaining crimes. Should the victims of the dropped charges be able to obtain restitution at the offender’s sentencing? If restitution is conceptualized purely as an alternative device for obtaining what would otherwise be available through a civil judgment, then ordering compensation for all victims seems a sensible enough answer – this would likely further the aim of providing victims with compensation in the most efficient and prompt manner. On the other hand, Boldt (1986) argues that going beyond the offense of conviction undermines the integrity of the criminal adjudication process, rendering adjudication an empty formality and diminishing the ability of punishment to serve its central function of strengthening social cohesion by reinforcing shared views of moral responsibility. (To be sure, commentators have for many years recognized an erosion of the “tort-crime distinction” as a result of the multiplication of no-and low-culpability regulatory crimes (Coffee 1991). Perhaps there is no “integrity” left to preserve on the criminal side.)

Second, whether or not the offender’s relevant conduct is limited to the offense of conviction, there are questions regarding what categories of harm are compensable and how close the causal connection must be between the conduct and the harm. Courts often borrow the doctrine of proximate causation from civil tort law in order to impose some minimal limitation on recoveries, which seems quite consistent with the idea of restitution as an alternative to civil recoveries. Beyond this rather imprecise limitation, different jurisdictions impose a diverse array of additional limitations (Harland 1982). For instance, some limit recoveries to economic losses, while others specifically preclude “pain and suffering.” Still others provide that victims may receive the full amount that they could obtain in a civil action. Likewise, there are different approaches to the possibility of recovery by the family members of deceased victims and others who might be thought of as secondary or vicarious victims (American Bar Association 2004). All such questions again put into issue the question of how important it is that restitution liability track conventional civil liability. As against the benefits of close tracking, the more inclusive approaches to restitution liability not only risk undermining the integrity of the criminal process (as Boldt might caution), but might also entangle criminal lawyers and judges in complex and unfamiliar sorts of loss calculations that could be more capably handled by civil practitioners.

Third, legislators, prosecutors, and judges must sort out the relative priority of restitution and competing sentencing alternatives. For instance, if a defendant is unable to pay restitution, court costs, and a fine, which should be paid first? Also, to what extent should it be a priority in fashioning a plea deal or a sentence to ensure that an offender is able to maintain or obtain employment? An extended period of incarceration will make full payment of restitution highly unlikely in many cases. More subtly, certain sorts of convictions may disqualify the offender from working in some professions (e.g., a lawyer may lose her license to practice law), which may also impede the payment of restitution. Yet, selecting the disposition that maximizes the likelihood of prompt, complete restitution may frustrate other legitimate objectives of the criminal-justice system, including the objective of obtaining funds from offenders to support system operations.

Finally, there is the question of whether ability to pay should be taken into account in setting a restitution award. US jurisdictions are split on this question (American Bar Association 2004). An emphasis on replicating civil judgments would point against taking ability to pay into account. This ability-blind approach might also be seen as accountability-reinforcing by formally making the offender fully responsible for all compensable harms that she has caused. Yet, a number of arguments might be made against this approach. For instance, a large financial obligation may create economic pressures that interfere with an offender’s rehabilitation. Moreover, if the offender is unable to keep up with required payments, then the court and/or other responsible agencies must bear the administrative burdens of responding to the noncompliance, which may involve readjustments to the payment schedule or the imposition of sanctions, possibly including incarceration for offenders who had been released on probation. Victims may find the process of repeated sanctions and readjustments no less frustrating than offenders, and might even prefer a more modest restitution award that is more reliably paid.

Although setting awards on the basis of ability to pay might seem to lead to unequal treatment for offenders of different economic classes who commit the same crime, it may be that the severity of a financial sanction is more properly assessed by reference to its relative effect on the offender’s wealth or income, rather than its absolute monetary value. This is, of course, the premise of day-fines. Thus, from an atonement-oriented perspective, an ability-blind award that will take many years for an offender to pay off (during which time the offender will likely have to remain under supervision) may communicate an inappropriately harsh message regarding the severity of the offense and the prospects for the offender to be restored to full membership in the community. Conversely, an award that takes ability to pay into account may be more precisely calibrated to serve communicative ends.

Future Directions

To the extent that policymakers and court officials continue to respond favorably to victim demands for restitution, a multitude of practical and theoretical problems will become increasingly urgent. This section briefly surveys a few of the emerging questions.

First, a prioritization of restitution as a routine, central component of criminal sentences may increase the demand for a variety of structural reforms to the criminal-justice system. Because few offenders have substantial reserves of wealth, the satisfaction of a restitution award in cases of serious injury normally requires that an offender have a steady source of income, a portion of which may be set aside for restitution payments over an extended period of time. Yet, a criminal conviction and the nonrestitution aspects of a sentence are apt to diminish or even entirely eliminate the offender’s income-earning potential. Structural reforms that might be considered so as to minimize the economic effects of a conviction include: the elimination of employment-related “collateral consequences” of convictions (e.g., categorical bars on felons working in certain trades or obtaining government-subsidized loans for higher education); recognition of stronger confidentiality rights regarding convictions (e.g., through liberalized expungement laws or “ban the box” laws that prohibit employers from inquiring about prior convictions); greater use of deferred prosecution agreements, pursuant to which criminal charges might be greatly reduced or dropped entirely if an offender satisfies certain conditions (which might include entry into a legally enforceable victim-compensation agreement); more generous provision of social services to offenders so as to enhance their income-earning potential; diminished use of incarceration; greater availability of employment-friendly “intermediate sanctions” as an alternative to straight incarceration (e.g., community-based detention centers with work-release opportunities); diminished use of pretrial detention, which may result in job loss while an offender’s case is pending in court; and diminished use of pre-and post-conviction release conditions that are employment-impairing (e.g., travel and residency restrictions). Of course, structural reforms such as these would not only support restitution, but would also address growing concerns regarding prisoner reentry and recidivism.

On the other hand, such structural reforms are also objectionable on a number of grounds. The stigmatization and socioeconomic marginalization of offenders might be seen as useful or necessary from the standpoint of deterrence or retribution. It might thus be regarded as morally offensive or insulting to victims if a person who commits a serious crime is able to proceed with her career as if nothing had happened, especially if the career is in a high-status profession. Likewise, offenders might be seen as undeserving recipients of social services, especially in a society in which many poor people who have not committed crimes are unable to obtain all of the services that they would find beneficial. Moreover, public safety might be compromised if there is less offender detention or reduced public access to criminal-history information. In light of such concerns, victim compensation might be better handled through expanded social insurance, rather than through structural reforms that are intended to facilitate restitution payments. Yet, expanded social insurance would not generate the atonement-type benefits that are said to accompany restitution.

Second, much as has occurred in tort law, collectively caused or experienced harms may put pressure on traditional notions of individualized proximate causation as a limitation on restitution liability. For instance, tort causation requirements have been relaxed in some jurisdictions in cases of “toxic torts” so that an injured plaintiff may recover from any of the manufacturers of a particular type of hazardous substance, even though the plaintiff may not be able to prove which manufacturer caused her specific injury. Likewise, tort law has devised various solutions to the problem of long latency periods for toxic exposure, which may leave it uncertain at the time of a lawsuit which individuals exposed to a tortfeasor’s hazardous substances will eventually fall ill as a result. Environmental crimes present obviously analogous problems for restitution law. Drug trafficking offenses may present similar challenges. For instance, should narcotics wholesalers in a given market be liable for restitution to overdose victims in that market in proportion to their volumetric share of the market? And how about child pornography? Many subjects of child pornography experience significant psychological injuries as a result of the fear that their images are being widely circulated to strangers on the Internet. Some have sought, thus far unsuccessfully, to recover under federal restitution law from those convicted of possessing their images (Jacques 2011). Their claims raise questions about whether individual participants in the child-pornography market should be required to pay restitution for their role as consumers in sustaining a market whose very existence is said to harm victims.

In such circumstances of diffuse or uncertain causation, the question of whether to make restitution available presents familiar tensions between victim-compensation objectives, on the one hand, and, on the other, the goals of avoiding complex new adjudicatory responsibilities for the criminal-justice system and maintaining the system’s traditional focus on individual moral responsibility. Additionally, in cases in which there are both identified and unidentified victims (as is frequently the situation in child-pornography cases), there are questions about whether and how assets should be preserved for victims who emerge in the future. It may be fairest and most efficient in such cases for restitution to be paid to a victim-assistance organization, rather than to individual victims.

Finally, there is the question of legal representation for victims in restitution proceedings. There may be a natural tendency to regard prosecutors as advocates for victims, and some prosecutors doubtlessly welcome such a role. Other prosecutors, however, may find that such a role presents awkward conflicts of interest, for instance, in the question of whether to drop certain charges in plea-bargaining when doing so would it be harder for some victims to recover. (Consider, for instance, the example given above of the prosecutor who drops five burglary charges in order to secure a guilty plea to five others.) Still other prosecutors may feel that they lack the time and resources to litigate restitution questions on victims’ behalf.

In the face of prosecutorial disinterest, a restitution claimant may engage her own counsel, of course, but many victims will lack the resources to do so. These considerations might seem to support the court appointment of lawyers for victims at public expense (at least to the extent that the cost cannot, as a practical or legal matter, be shifted to the offender as part of the restitution award). Yet, such appointments might seem inappropriate if public funding is already inadequate for the legal representation of indigent defendants, as seems to be the case in many jurisdictions; it seems misguided to fund a process that will likely increase the level of punishment in a system when there are reasons to doubt the reliability of the underlying guilt determinations. The difficulties may supply yet an additional reason to narrow the scope of restitution liability relative to tort, confining restitution to the sorts of direct, easily monetizable injuries so as to which victims are least likely to require legal representation in order to prove.

Bibliography:

American Bar Association (2004) Restitution for crime victims: a national strategy
Barnett R (1977) Restitution: a new paradigm of criminal justice. Ethics 87:279–301
Barnett R (1998) The structure of liberty: justice and the rule of law. Oxford University Press, New York
Benson B (1996) Restitution in theory and practice. J Libert Stud 12:75–97
Boldt R (1986) Restitution, criminal law, and the ideology of individuality. J Crim Law Criminol 77:969–1022
Christie N (1978) Conflicts as property. Br J Criminol 17:1–15
Coffee J (1991) Does “Unlawful” mean “Criminal”?: reflections on the disappearing tort/crime distinction in American law. Boston University Law Rev 71:193–246
Dickman M (2009) Should crime pay?: a critical assessment of the mandatory victims restitution act of 1996. Calif Law Rev 97:1687–1718
Doak J (2008) Victims’ rights, human rights and criminal justice: reconceiving the role of third parties. Hart Publishing, Oxford
Duff RA (2001) Punishment, communication, and com- munity. Oxford University Press, Oxford
Duff RA (2005) Guidance and guidelines. Columbia Law Rev 105:1162–1189
European Commission (2001) Green paper—compensation to crime victims
Flanders C (2006) Shame and the meanings of punishment. Clevel State Law Rev 54:609–635
Garvey S (1999) Punishment as atonement. UCLA Law Rev 46:1801–1858
Harland A (1982) Monetary remedies for the victims of crime: assessing the role of the criminal courts. UCLA Law Rev 30:52–128
Hershenov D (1999) Restitution and revenge. J Philos 96:79–94
Hodgson J (2002) Suspects, defendants and victims in the French criminal process: the context of recent reform. Int Comp Law Q 51:781–816
Holezel W (1980) A survey of 27 victim compensation programs. Judicature 63:485–496
Jacques R (2011) Amy and Vicky’s cause: perils of the federal restitution framework for child pornography victims. Ga Law Rev 45:1167–1198
Loffelmann M (2006) The victim in criminal proceedings: a systematic portrayal of victim protection under German criminal procedure law
Miller F (1978) Restitution and punishment: a reply to Barnett. Ethics 88:358–360
Miller R (2009) Restitution’s focus on the victim: six problems. Macalester J Philos 18:21–39
Moore M (1997) Placing blame: a general theory of the criminal law
Pilon R (1978) Criminal remedies: restitution, punishment, or both? Ethics 88:348–357
Posner R (1980) Optimal sentences for white collar criminals. Am Crim Law Rev 17:409–418
Ruback R, Shaffer J (2005) The role of victim-related factors in victim restitution: a multi-method analysis of restitution in Pennsylvania. Law Hum Behav 29:657–681
Ruback R, Cares A, Hoskins H (2008) Crime victims’ perceptions of restitution: the importance of payment and understanding. Violence Vict 23:697–710
Umbreit M, Vos B, Coates R, Lightfoot E (2005) Restorative justice in the twenty-first century: a social movement full of opportunities and pitfalls. Marquette Law Rev 89:251–304
Von Hirsch A (1998) Penal theories. In: Tonry M (ed) The handbook of crime and punishment
Zimring F, Hawkins G, Kamin S (2001) Punishment and democracy: three strikes and you’re out in California. Oxford University Press, Oxford