CRIMINAL REMEDIES - RESTITUTION, PUNISHMENT, OR BOTH?

• NCJ Number: 54448
• Journal: ETHICS Volume: 88 Issue: 4 Dated: (JULY 1978) Pages: 348-357
• Author(s): R PILON
• Date Published: 1978
• Length: 11 pages
• Corporate Author: University of Chicago
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE ATTEMPTS TO SHOW HOW RESTITUTION ALONE IS NOT A SUFFICIENT CRIMINAL REMEDY AND THAT BOTH RESTITUTION AND PUNISHMENT ARE JUSTIFIED SINCE BOTH ARE DERIVED FROM THE MORAL RIGHTS OF INDIVIDUALS.

Abstract

THIS CRITIQUE OF A PAPER THAT PROPOSED LIMITING CRIMINAL PENALTIES TO VICTIM RESTITUTION BY THE OFFENDER (NCJ-46958) POINTS OUT THAT AS CRIME CONTINUES TO INCREASE, THE ABILITY OF GOVERNMENT TO PROTECT INDIVIDUALS COMES INTO QUESTION. INDIVIDUAL RIGHTS AND OBLIGATIONS ARE AT ISSUE IN CRIME. RESTITUTION RECOGNIZES THE RIGHTS OF VICTIMS, AND THIS IS THE PRINCIPAL SOURCE OF ITS STRENGTH. THE NATURE AND LIMIT OF VICTIM RIGHTS TO RESTITUTION, AT THE SAME TIME, DEFINE THE NATURE AND EXTENT OF CRIMINAL LIABILITY. AGGRESSIVE ACTIONS OF CRIMINALS CREATE A DEBT TO VICTIMS. CIVIL REMEDIES SUCH AS RESTITUTION, BY THEMSELVES, ARE INADEQUATE IN THE CASE OF CRIMINAL ACTS. THE ELEMENT MISSING FROM TORT BUT PRESENT IN CRIMINAL ACTS IS THE GUILTY MIND; THE OFFENDER HAS AFFRONTED THE VICTIM'S DIGNITY, HAVING INTENTIONALLY USED THE VICTIM AGAINST HIS WILL FOR THE OFFENDER'S OWN ENDS--THERE ARE CERTAIN KINDS OF WRONGS WHICH NO AMOUNT OF MONEY CAN RECTIFY. CRIMINAL ACTS HAVE CREATED VICTIM RIGHTS. THE CRIMINALS' ACTS HAVE BOTH ALIENATED THE OFFENDERS' RIGHTS AND CREATED OBLIGATIONS CORRELATIVE TO NEWLY-CREATED RIGHTS OF VICTIMS. IF THE FORM OF REMEDY FOR CRIME IS TO REFLECT AS MUCH AS POSSIBLE THE CRIMINAL ACTS, THAT REMEDY SHOULD REFLECT THE COMPLEXITY OF CRIMINAL ACTS AND SHOULD INCLUDE BOTH MONETARY RECTIFICATION AS IN TORT AND A FURTHER ELEMENT AIMED SPECIFICALLY AT MORAL WRONG. WHETHER THE NEED FOR PUNISHMENT CAN BE DETERMINED THROUGH CIVIL PROCEEDINGS AND, HENCE, WHETHER PUNISHMENT CAN BE VIEWED AS A CIVIL SANCTION AND REMEDIES FOR STATUTORY VIOLATIONS ARE AREAS FOR FURTHER STUDY (I.E., PUBLIC INTEREST INHERENT IN REGULATORY LAWS SUCH AS TRAFFIC LAWS MAY REQUIRE STATE INVOLVEMENT IN VIOLATIONS OF THESE STATUTES). (DEP)