Source: (2007) American Criminal Law Review. 44(4): 1307-1318.Increasing calls for limits on the use of corporate criminal liability naturally follow periods of heightened regulatory scrutiny. ... In this article, we ask how the principles and pra... Read More
Institutionalized restitution dates back to ancient times. Under the Babylonian Code of Hamumurabi (c. 1750 B.C.) victims were entitled to receive payment for certain property offences. Mosaic law required thieves to repay oxen to victims from whom they had stolen oxen. The Roman law of Twelve Tables (449 B.C.) prescribed repayment schedules for theft of property according to when, and under what circumstances, the thief stole and handed over the property. In the case of violent offences, Middle Eastern codes, such as the Sumerian Code of Urnammu (c. 2050 B.C.) and the Code of Eshnunna (c. 1700 B.C.) required restitution. In the ninth century in Britain, offenders were required to restore peace by making payments to the victim and the victim's family.
The main purpose of institutionalized restitution was to prevent retaliatory violence for wrongdoing, providing a more "civilized" means of reparation. But, in the West, with the rise of the feudal aristocracy and the nation-state, royal officials began to assess fines, in an effort to increase coffers, for presiding over grievances and protecting offenders from retaliation. Eventually, these fines began to crowd out restitution paid to the victim. Finally, with the rise of the modern state's assumption of the investigative, prosecutorial and enforcement functions, crime became treated primarily as a disruption of the state's security; no longer were the financial hardships to private individuals of vital importance in criminal courts. Restitution to the victim had fallen out of use.
With the rise of the recognition of the victim, several legal and criminological philosophers, penal reformers among them, called for the re-institution of restitution as a penal sanction. Among them, Margery Fry is credited for bringing restitution to the forefront of the debate over restitution in the 20th century.
In its traditional sense, restitution has been defined as "a monetary payment by the offender to the victim for the harm reasonably resulting from the offence". Restitution can embody both monetary payments and in-kind services to the victim. According to Black's Law Dictionary, restitution is an "Act of restoring; restoration of anything to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury; and indemnification".
Restitution proactively involves the victim and offender in repairing the harm done to the victim. Unlike retributive responses to crime, restitution has the potential to repair the financial and perhaps relational harms that crime has left in its aftermath. Restitution is arguably preferable because instead of simply increasing the total amount of harm suffered by interested parties, restitution aims at repairing the victim, and making the offender a productive person. Restitution provides a sanction that is more clearly related to the offence than punitive measures, and it better restores a victim to the place he/she occupied before the offence.
Restitution serves to commemorate the gesture of reparation and acknowledgment of wrongdoing. Instead of completely ignoring the harm done to individual victims, restitution acknowledges and attempts to repair the injury they have suffered. Whereas retributive and rehabilitative responses fail to address the harm inflicted on victims, restitution, when sought as an outcome of a restorative process, has as its primary motivation reparation to the victim. Thus, restitution is said to better satisfy a victim's need for vindication, as the offender must personally acknowledge and account for the offence.
Potentially, for the offender, restitution can not only be less punitive, but more rehabilitative than incarceration. It allows the offender to express guilt in a concrete manner. It provides an alternative sanction with far less stigmatization than incarceration, ultimately better facilitating reintegration. Restitution affirms the offender's self-worth, giving him/her the opportunity to "make things right".
One study found that four basic types of restitution programmes exist: restitution imposed as an obligation within victim-witness assistance programmes organized by prosecutors; VORPs organized by non-profit community support groups seeking restitution as an outcome of a reconciliatory process; restitution/employment programmes operated by probation departments; and restitution as part of a routine probation supervision programme.
In the United States the Earn-It programme in Quincy, Massachusetts combines restitution orders (scheduled, monitored and enforced by the juvenile courts) with the support of the local business community in hiring and paying probationed juveniles to work. A portion of the money earned goes to pay the restitution ordered by the court. Actual loss suffered by the victim and offender's ability to pay figure into the calculus of restitution. Where the offender could not pay all of the restitution, a compensation scheme could supplement the difference.
When matched with similar offenders processed through the juvenile justice system, the Vermont Juvenile Court Diversion programme showed significantly lower recidivism rates employing restitution as an alternative sanction to incarceration or intensive probation. One study reported that, when sought as an outcome of a VORP process, 95% of the mediation meetings resulted in a successfully negotiated restitution agreements. Proponents also cite evidence that restitution sanctions can reduce prison populations and reduce recidivism at a higher rate than incarceration.
However, restitution faces many obstacles to effective implementation. Many offenders are never caught, never prosecuted, never convicted; and for those that are convicted, restitution often cannot be monitored and enforced. Most jurisdictions lack a tradition of ordering restitution and the mechanisms for assuring completion--rarely is restitution ordered, and even rarer is its completion. Some have criticized existing restitution programmes for having too restrictive selection criteria and not truly serving as alternatives to incarceration. Most programmes appear to serve white and middle-class offenders. Unsystematic application further makes restitution programmes ineffective.
Similar research in New Zealand demonstrated that restitution was poorly used, with officials citing reasons such as: violent offences precluded consideration of reparation as a sanction; restitution failed to account for emotional harm; that the system did not view it as a stand-alone sanction; that it did not achieve retributive purposes.
British models also show a "fundamental ambivalence" about the role of restitution in sentencing. They show the difficulty these programmes encounter in maintaining a restorative vision within the existing traditional criminal justice system. Proponents recognize the use of restitution as mere "window-dressing" supplementing other sanctions primarily imposed.
Maintaining a Restorative Vision
The ideal model for restitution as an outcome of a restorative process would be to make restitution normative unless there is a compelling, overriding reason. For example, incarceration may preclude payment of restitution, but a less incapacitative sanction (e.g., supervised probation) would allow the offender to make reparation to the victim. If these were the only two sanction choices, the latter of the two should be chosen, unless the offender presents such a high risk to the public that incarceration would be the only effective means of taking precaution against the manifestation of that risk.
Instead restitution is often a supplementary sanction to incarceration, probation, fines and other sanctions typically imposed by the criminal justice system. If reparation is not a primary goal of justice, restitution runs the risk of being used to strengthen retributive or rehabilitative motivations; or perhaps worse yet, as "window-dressing" to satisfy political motivations. Politicians may use restitution as a means of placating the victims' rights movement, when, in reality, restitution has no truly reparative effect within the traditional criminal justice system.
Sceptics argue that even if restitution was made normative it could not be enforced because most offenders simply cannot pay restitution. However, one study showed an average compliance rate of 68%, and other studies suggest that even after taking into account low-level income offenders, there are relatively few restitution orders that cannot be completed because of offender inability to pay. But, even if the offender was unable to pay, a compensation fund could supplement the difference.
This document prepared by Christopher Bright. Copyright Prison Fellowship International.