THE JUSTICE OF RESTITUTION
A restitutive theory of justice is a rights-based approach to criminal sanctions that views a crime as
an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two predominant sanctioning theories-retribution and crime
prevention. Rights-based analysts have criticized this approach for fighting to include mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and
tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual rights framework. To do so would require the existence of a right to certain
thoughts of others, a morally and theoretically objectionable position.
RESTITUTION TO VICTIMS OF CRIMES is a subject
that has received increasing attention recently,. Almost all treatments, however, have concerned how such a scheme might be implemented or how restitution has fared in other cultures and times. 1 What remains to be considered is the sort of justice theory that properly underlies such an
approach and how this theory compares to more familiar formulations of criminal justice. In two recent articles, I have attempted to show that the principle that should animate any system of justice is a restitutive one.
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Here I intend to expand u on the ground already covered by, first considering the argument of two critics of a restitutive theory. Examining their thoughtful attack will highlight much of what is at stake in the debate and the theoretical superiority of the restitutive approach. After that I will explore more fully what a restitutive theory of justice should look like and how one might deal with some criticisms likely to be made of it.
Before proceeding, it might be useful to review what is meant by restitutive justice: "Restitution refers to monies or services paid by the
offender to the victim, whether directly to the victim or through intermediaries such as insurance companies." In "Crime and Tort: Old Wine in Old Bottles," It is interesting to note
that Professor Epstein never considers the actual historical separation of the two systems. Though the question has yet to be settled, many have convincingly argued that it was the rise of the English monarchy and the
King's desire for increased power (and a share of the reparations) that led to the fissure rather than any theoretical distinction. The first is that if the purpose of the criminal law, is to punish only those who are worthy of moral condemnation, it is difficult to see why the bad
intention must necessarily, be linked to an (overt) act. Is it merely a practical problem (viz., that we can't read minds) that prevents punishing people's thoughts or is it a theoretical one? For on Epstein's view,
"if the accused believes that proper he is about to take belongs to another, it should make no difference in the application of the criminal law, that by some fluke or confusion the property is unowned, that the accused
happens to own it [!], that a gift was about to be made or that the owner has not communicated a subjective consent to allow the accused to use
it."
A second, somewhat
related problem is whether and how a rights approach, within which Epstein works, gives the state (or anyone else) a right to punish offenders that would justify, a separate system devoted to this end. Where does such a right come
from and how does it relate to the rights enforced in Epstein's civil system? Though for Epstein the purpose of the criminal law is "moral condemnation" of the offender, it needs to be shown that punishment
is a justifiable form of condemnation consistent with a theory, of individual rights. This discussion must be seen in its proper context.
I do not mean to deny that some rights violators deserve to be "punished" as the term may be used-the deliberate infliction of unpleasantness for the purpose of moral condemnation. Neither do I criticize the
distinctions made by retributivists as to who is deserving of punishment and who is not. Rather, my argument would be that utilitarian considerations are illegitimate to support such practices and that the retributive
argument from desert is insufficient to justify the forcible imposition of suffering on an offender. The remaining alternative is nonviolent punishment-approbation, isolation, and even banishment,
...skeptic might readily concede that the reprobative symbolism of
One can imagine an elaborate public ritual, exploiting the most trustworthy,
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punishment is necessary, to, and justified by, [its] ... various derivative
functions [of disavowal, nonacquiescence, vindication, and absolution].
Indeed, he may, even add deterrence to the list, for condemnation is likely
to make it clear, where it would not otherwise be so, that a penalty, is not
a mere price tag. Granting that point, however, this kind of skeptic would
have us consider whether the ends that justify, public condemnation of
criminal conduct might not be achieved equally well by means of less painful
symbolic machinery. . .Isn't there a way to stigmatize without inflicting any
further (pointless) pain to the body to family, to creative capacity?
devices of religion and mystery, music and drama, to express in the most
solemn way the community's condemnation of a criminal for his dastardly
deed. Such a ritual might condemn so very emphatically that there could
be no doubt of its genuineness, thus rendering symbolically superfluous any
further hard physical treatment. Such I a device would preserve the
condemnation, function of punishment. While dispensing with its usual
physical media-incarceration and corporal mistreatment. . . . The problem
of justifying punishment, when it takes this form, may really be that of
justifying our particular symbols of infamy.
Epstein does not consider such questions except for a single vague mention of retributive theory. 15 His objective is simply, to rationalize the
traditional distinction between crime and tort, and ,while he arguably succeeds in this endeavor, this limited scope weakens his defense of that distinction. As a result. his criticism that a restitutive approach fails to
take notice of the proper differences between crime and tort is severely, undercut. Fortunately we do not have to look to Epstein alone for a
defense of his position, for Roger Pilon, operating within the same theoretical framework, has dealt with precisely these issues in his excellent "Criminal Remedies: Restitution, Punishment, or
Both?"
This formulation avoids, or seems to, the first question I raised above-why punish only the mens rea
that is evidenced by an overt act apart from practical considerations? Here it appears that the intent is not being punished; rather the intent colors the act, somehow changing the act from a morally neutral one (perhaps justifying restitution) to a morally objectionable one justifying punishment. In this way the act and intention are apparently inextricably joined theoretically inseparable, Now there is nothing particularly novel or unreasonable about such a construction and it might indeed answer the first question. 20 I do not agree with Pilon, however, that this formulation avoids the second problem, and it is to this I now turn.
The problem, put simply, is bow punishment can be made comfortable within a context of individual rights, for Pilon, no less than Epstein (or I), wishes to
focus "attention upon the parties directly involved, upon the rights violated and the obligations now, owing." Pilon argues that by using ". . . the victim for his own ends, and against the victim's will . . . the criminal alienated his own right against
being similarly treated by the victim. . . . The original act thus creates a right in the victim (or his surrogate) to use the criminal as he himself was used."
To say that a victim's remedy must mirror the wrong, Pilon must assert the following: The only, right which could account for (6) would be a right to
have others think a particular, i.e., nonaggressive, way (about you?). B, on his view, has a right to a certain mental state in A, such that he may punish A if this attitude is not maintained. B, therefore, has a right
not to be harmed (giving rise to a remedy of restitution) and a further right not to have others, here A, intend to harm him (giving rise to a further right to punishment). Notice that I am not contending that Pilon must justify the punishment of bare intentions with no overt act.
(1) If A violates B's rights, B's remedy must mirror the nature of the rights violation.
(2) If A acted unintentionally, B's only remedy is restitution.
(3) If A acted intentionally, B also has an additional right to punish A.
(4) B may- punish A, therefore, if and only if A had the requisite mental state (mens rea) at the
time of the offense.
(5) The existence of this mental state at the time of the act creates, therefore, in B a right that he
would not possess were it not present.
(6) Since a remedy must mirror the extent and nature of the rights violation, the existence of this
mental state must violate an additional right in the victim, such that an additional remedy, is
justified.
Professor Epstein doesn't deal with this problem but Pilon does. In the case
of an intentional crime: "The criminal," Pilon suggests, "has not simply harmed you. He has affronted your dignity." 26
Now whatever else this might mean, here it can only mean that you have a right to dignity such that violations of it give you a right to some form of rectification (and, presumably self-defense as well).
While conceding that ". . . dignity is a difficult idea to come to grips with, " 27 Pilon attempts to explain how such a right might exist. He says that rights are grounded in and derived from human dignity. A dignity rich enough to generate rights must surely figure in the remedy for violations of those rights."
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But surely the second sentence does not follow easily from the first. For if it is true (as it may well be) that rights flow from dignity, this doesn't imply a right
to dignity, itself whatever this might mean. And if "dignity" is not a right, why should it "figure in the remedy" at all?
There is reason to believe that dignity is not and cannot be a right in the traditional sense. The sort of dignity, which Pilon's formulation requires is the right to a certain attitude or opinion in the minds of others
since be seeks to punish mental states. I suggest that Pilon has jumped from the proposition that "people who intend to harm others and do some act in furtherance of that intent (though the source of this proviso
remains obscure) are morally worse people than those without this intention" to the proposition that "this moral difference invades additional rights generating thereby additional remedies." The latter does not
follow from the former and the requisite connecting proposition-that evil intentions violate rights or that a person has a right to be free from others thinking harmful thoughts about them- is a troublesome position to contemplate
much less defend. Another approach would be to ask whether, assuming that a bad act coupled with a bad intent violates more
rights than the volitional act alone, does the same act coupled with a noble purpose or intent violate fewer
rights? It would seem that the thrust of a rights thesis is that persons have rights regardless of how others view them and if it is to be suggested that this precludes considering only good intentions and not bad, then such asymmetry must be explained.
Moreover, even if such a right could be posited and justified, this would not get Pilon as far as he would like, for the ultimate question at issue-should a remedy be restorative and reparative or should it be destructive of an
equal right in the offender?-is not resolved by establishing that a right to dignity has been violated. The question remains "why the harming of a victim gives him a right to equally harm the offender rather than some
form of restitution, monetary or otherwise. In other words, if it is conceded, as Pilon does, that restitution is the appropriate remedy for all other rights violations including intangible ones, then why does violating a
right to dignity, bring about an entirely different form of remedy ? This problem is not solved by making its resolution the victim's concern as Pilon suggests 30
since our enterprise is to determine the limit of victim discretion compatible with individual rights including the rights of the offender.
Those who seek to defend a dual system of justice-restitutive (civil) and punitive (criminal) must show that they both follow from a rights thesis or that one or both is justified on some other ground. If one accepts
the rights thesis, then both systems must be consistent with it. This, as I have tried to show, is a difficult task. How might the argument for a restitutive remedy for rights violation be
structured? First, it is necessary to posit what, after all, a rights violation is: an interference with the use of one's person or property provided that use is not itself harming others. While a theory of rights is required
to specify those actions that are permissible and those that are not, when a right once specified is violated what has occurred is an appropriation by someone of the use of what belongs to another. Thus, if I force you out of
your house, I have interfered with your use of your body, house and land. I am acting as though I own your body, house, and land though I do not. While I am acting as owner, your right to unobstructed use of what is
yours gives you an absolute right to regain control of your property however necessary. This is self-defense. But once the incident is over, what then? Self-defense is inappropriate since there is nothing
presently to defend against. A wrongful distribution has taken place and it is a fait accompli. What must be done is to rectify that
wrongful distribution somehow, however imperfectly this may be done. A redistribution of rights, then, must take place. The offender must give something to the victim, by force if necessary. That what was interfered
with may have been intangible does not make it any, less a "harm" or rights invasion. It is no less an unjust distribution, If an intangible can be sold, as we know it can, surely it can be stolen or destroyed as
well. A theory, of rights, therefore, involves a theory, of just distribution of rights and a crime is a wrongful interference with that distributions it is an unjustified redistribution which necessitates, if the
victim desires,
To appreciate the sort of concrete remedies such an approach suggests (and precludes), consider the example of arson. A burns down B's house. What A has
done is interfered with B's ownership of his house as though he, A, owned it. He has treated B's house in a manner inconsistent with B's rights to his house. A redistribution from A to B would involve the building of
another house or, if B prefers, money payments sufficient to accomplish this. The act of burning down A's house (if A has one) redistributes nothing to B. [C]ompensation protects just distributions, and the rights they involve,
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by undoing, insofar as possible, actions that disturb such distributions.
Put briefly, justice is a matter of people having those things that they
deserve, are entitled to, or otherwise ought to have, and compensation
serves justice by preventing and undoing actions that would prevent
people from having these things.
A restitutive approach considers neither the desert or merit of the victim, nor the desert of the
criminal. Rather, a restitutive theory is concerned with the entitlements disturbed by the criminal act and the entitlements to restitution consequently created in the victim. It is not that the victim deserves corn I
sensation on account of some quality he may possess, but that he is entitled to restitution on account of an injury he has received at the hands of a criminal. 34
Since a properly understood theory of restitution is not concerned with desert, it is neither impermissibly asymmetric nor inappropriately future oriented.
It is important to note that a restitutive theory does not measure damages by what it would take to please the victim now. To do so would make the
criminal act of minimal, if any, relevance. Instead, we would need to consider how outraged the victim is and just what it would take to appease his anger. Or, conversely, we might consider how
indifferent the victim is and might ask whether he needs to be appeased at all. Such an approach, apart from its obvious practical difficulties, seems to be
inconsistent with the proper focus of justice. What the offender is liable for is not the mental attitude-vengeful or benign-of the victim, but the harmful consequences of his criminal act. Such consequences might
include mental anguish, but this form of suffering is distinct from the desire (or lack of it) for harsh revenge. While the line dividing the two categories may be fine, it is a very real one nonetheless. Moreover, this
last argument strengthens the case against retribution, for some, though not all, theories of retribution are based on the need to appease or satisfy the victim and therefore could only be incidental to a redistribution of rights.
With this notion of restitutive justice in mind, it should be illuminating to consider a few of the objections most often made of it.
A prominent criticism of a restitutive theory is that it is impossible to adequately measure the appropriate restitution for a crime. A retributivist
would claim that this is a failing his theory successfully avoids. Thus a murder obviously calls for the death penalty and the loss Of, say,, an eye naturally calls for a loss of the criminal's eye. While this apparent
symmetry is attractive, it is also deceiving. Commensurability, it may be shown, actually presents as great a problem for the retributivist as it does for the restitutivist.
Let us say, to stay with the example of arson, that I deliberately bum down your house. We saw that a restitutive theory calls for me to rebuild the
house or have it rebuilt or, in the alternative, any other form of restitution the parties might negotiate. A retributivist would have to say that you (only) have the right to burn down any house. But what if I don't have a
house" Can you compel me to build one so that you can burn it down? But what if I don't care if you burn down the house I built? Or what if my house is worth less than yours; or I don't care about mine at all; or
you didn't really like the house I burned down and it didn't bother you much, but burning down my, house would really, bother me? A retributivist who wants to match pain with pain would have considerable
difficulty with each of these examples. And one who seeks to match act for act would have similar problems with the case, for example, of a blind man who puts out the eye of another. What is its moral equivalents This line of argument does not undermine the theoretical case for retribution, but only its claim to practical
superiority. To highlight the problems of a retributive approach is not to suggest that a restitutive theory does not present measurement difficulties of its own.
But at least a restitutive standard concerns the subjective mental state of the parties far less than retribution and, where it does, it compensates for an already existing mental state (pair) and suffering) and not a prediction of
future satisfaction (to the victim) or hurt (to the criminal). Nor does it force the victim to devise a retaliation of equal and possibly horrific magnitude. Rather, where, for example, a woman has been raped, justice
mandates that the criminal repair his acts by paving for hospital care, psychiatric counseling, and a cash award for suffering. If the victim didn't want anything from the rapist, she could, if she wished, have the cash value
of her benefits assigned to a rape crisis unit. While any theory of justice will present some problems of measurement, it would seem that those facing a restitutive theory are far fewer and less extreme.
With this in mind, let me now consider what seems to be the main obstacle to accepting a restitutive view. How can money damages, in any
sense, make up for a criminal act? The objection that nothing can repair a criminal act must be answered on several levels. Insofar as it means that the event cannot be erased,
the criticism is misplaced. For if this is the thrust, then on this ground a leaky roof cannot be repaired since the leak has already occurred and cannot be "unleaked." This is not how we normally think of
repairing something. At another level it might be objected that some crimes are so heinous that they are beyond repair. To this comes the two-part reply that many or even most crimes do not fall into this category, and
that because those that do cannot be completely repaired does not mean that they cannot be repaired at all. Surely some restitution is more just than none. Finally, the criticism
is nonunique, not because the alternatives- utilitarianism and retribution- cannot restore the victim since this is not their goal, but because neither theory can perfectly achieve its objectives, whether utilitarian or
retributive. Does utilitarianism perfectly deter? Does retribution perfectly balance the score? An approach need not work perfectly to be justified.
The last objection I will consider is raised by both Epstein and John Hospers, Epstein contends that only a "punishment for bad intention" rationale for criminal law can explain punishment of unsuccessful attempts to commit a crime. While I have examined this issue elsewhere, The real question becomes, or is all along, whether an attempt is a crime. The rights theorist
must ask whether an unsuccessful attempt to violate a right violates any right? Put this way, the question appears to answer itself in the negative. what the rights theorist must decide, then, is not whether an unsuccessful
attempt is a crime-it isn't-but instead when an attempt becomes a threat such that it is subject to the prohibition on the use or threatened use of force. Unsuccessful attempts, therefore, may only be sanctionable if
they are successful threats. Such an inquiry, as it concerns what constitutes a breach within a theory of rights and not how breaches are to be dealt with when they occur, is outside a theory of restitutive justice.
Such a theory posits that any rights violation is a harm giving rise to a right in the victim to restitution. The application
of this theory must await the outcome of the discussion, but the restitutive theory itself is in no way affected by, that outcome:
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It should now be apparent that those who defend the forcible punishment of criminals beyond restitution are
hard pressed to make such a program consistent with individual rights. The significance of such a difficulty is considerable for it means that the restitutive theory of justice or, at the very least, the rejection of
punishment is not only consistent with an individual rights approach, it is required by, it. And if this is true many will face an uncomfortable (and some an easy,) choice between individual rights on the one hand and
punishment on the other-a choice that is not currently thought to be necessary. In this article I have attempted to outline the justice of the
restitutive theory I have described elsewhere. To this end it was useful to examine criticisms made by others operating within much the same philosophical context as I. The arguments presented here do little, however, to answer the criticisms made by those who do not share a rights-based approach to criminal sanctions.
FOOTNOTES:
1. See, generally, Stephen Schafer, Compensation and Restitution to Victims Of Crime, 2d ed., enl. (Montclair, N.J.: Patterson Smith Publishing Corp., 1970); Joe Hudson and Burt Galaway, eds., Considering the Victim: Readings in Restitution and Victim Compensation (Springfield, Ill.: Charles C. Thomas, 1975); ibid., Restitution in Criminal Justice (Lexington, \lass.: Lexington Books, 197i-).
2. In "Restitution: A New Paradigm of Criminal justice," Ethics
87, No. 4 (July, 1977), pp. 279-301, I argued that the existing paradigm of criminal justicepunishment-has failed (in the Kuhnian sense) to solve the problems it was in part responsible for creating; that the justifications traditionally, offered-deterrence, disablement (or incapacitation), and reformation-are inadequately served by punishment and that, alone or in combination, the\f are an inappropriate and problematic justification for the deliberate, forcible infliction of suffering on a criminal offender. I also suggested that proportionality, rehabilitation, and victim compensation were attempts to salvage the punishment paradigm and, though they have ultimately, been undercut by the paradigm itself, they, point in the direction of a new paradigm-restitution. In "Assessing the Criminal: Restitution, Retribution and the Legal Process,"
Assessing the Criminal, eds. Randy E. Barnett and John Hagel III (Cambridge, Mass.: Ballinger Publishing Co., 1977), pp. 1-31 with John Hagel I outlined a restitutive theory albeit in a conlusory manner. The theory as
formulated revolved around the distinction between moral rights and moral goals. Moral rights are those actions which may never be interfered with. The purpose of a system of justice is to rectify infringements of moral
rights and nothing more. Crime prevention, whether by, deterrence, disablement, reformation, or rehabilitation, is a highly desirable) moral goal which may be well served in the course of justice but has no place in the
calculation of sanctions for rights violations.3.
Laura Nader and Elaine Combs-Schilling, "Restitution in Cross-cultural Perspective," Restitution in Criminal Justice, p, 28. (Emphasis in original)4. Ibid., pp. 27-8. (Emphasis in original)5. Barnett, op. cit., pp. 287-8.6. Ibid. p. 291. (Emphasis in original)7. In Assessing the Criminal, pp. 231-57.8.
For a discussion of what he means by "volition," see his excellent "A Theory of Strict Liability," Journal of Legal Studies 2 (1973), pp. 166-8.9. Epstein, "Crime and Tort," p. 248.10. Ibid.
11. See Schafer; Richard E. Laster, "Criminal Restitution: A Survey of Its Past History and an Analysis of Its Present Usefulness,"
University of Richmond Law Review 5 (1970), pp. 71-80; Bruce Jacobs, "The Concept of Restitution: An Historical Overview" in Restitution in Criminal Justice. pp, 45-62; for a general historical background, see
Fredrick Pollack and Fredric William Maitland, The History English Law (Cambridge: Cambridge University Press, 1898), p. 460; A. S. Diamond, Primitive Law
(London: Longmans, Green and Co., 1935), pp. 148, 316, n.5; Heinrich Oppenheimer, The Rationale of Punishment (London: University of London Press, 1913), pp. 162-63, 173-74; Nader and Combs-Schilling, pp. 27-44: and William
F. McDonald, "The Role of the Victim in America," Assessing The Criminal, pp. 295-29S.12. Epstein, op. cit., p. 251.13. More easily, handled where Common areas are privately owned, e.g., shopping centers. For a historical perspective, see Leonard P. Liggio, "The Transportation of
Criminals: A Brief Political-Economic History," Assessing the Criminal. pp. 273-94.14. Joel Feinberg, Doing and Deserving (Princeton: Princeton University- Press, 1970), pp. 115-16.15. Ibid., p. 248.
16. Roger Pilon, "Criminal Remedies: Restitution, Punishment, or Both?", Ethnic, 88, No. 4 (Jul ' N, 191-8), pp. 348-57.17. Ibid., p. 350.18. Ibid., p. 355.19. Ibid. (Emphasis in original).20.
About this some doubt still remains. See also, e.g., Max Atkinson, "Justified and Deserved Punishments," Mind
78 (July, 1969), p. 364. There he contends that ... the requital of evil conduct would, if taken as the basis for punishing a tape of conduct, justified official punishment of lying and other forms of immorality. . ."
35.