RESTITUTION - A NEW PARADIGM OF CRIMINAL JUSTICE (FROM ASSESSING THE CRIMINAL - RESTITUTION AND RETRIBUTION, AND THE LEGAL PROCESS, 1977 BY RANDY E BARNETT AND JOHN HAGEL 3D - SEE NCJ-46958)

• NCJ Number: 46974
• Author(s): R E BARNETT
• Date Published: 1977
• Length: 35 pages
• Corporate Author: Ballinger Publishing Co
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

THE CURRENT 'CRISIS' IN THE PARADIGM OF PUNISHMENT IS EXAMINED, AND A PROPOSAL FOR ITS REPLACEMENT BY A PARADIGM OF RESTITUTION IS PRESENTED.

Abstract

THE OLD PARADIGM OF CRIMINAL JUSTICE -- THAT OF PUNISHMENT -- IS IN A CRISIS PERIOD, NOT ONLY BECAUSE OF THE UNCERTAINTY OF ITS MORAL STATUS, BUT BECAUSE OF ITS PRACTICAL DRAWBACKS. THE INFLICTION OF SUFFERING ON A CRIMINAL TENDS TO CAUSE A GENERAL FEELING OF SYMPATHY FOR HIM. SINCE THE PRISON TERM IS SUPPOSED TO BE UNPLEASANT, AT LEAST A PART OF THE PUBLIC COMES TO SEE THE CRIMINAL AS A VICTIM, AND THE LACK OF RATIONALITY BETWEEN A TERM OF IMPRISONMENT AND THE HARM CAUSED THE VICTIM ALSO CAUSES THE OFFENDER TO FEEL VICTIMIZED. THE LONG, PONDEROUS CRIMINAL JUSTICE PROCESS IS ALSO A PRODUCT OF THE PUNISHMENT PARADIGM, LARGELY DUE TO A FEAR OF ANY UNJUST INFLICTION OF PUNISHMENT. AS THE PUNITIVE ASPECT OF A SANCTION IS DIMINISHED, SO TOO WOULD BE THE PERCEIVED NEED FOR PROCEDURAL PROTECTIONS. FURTHERMORE, A SYSTEM OF PUNISHMENT OFFERS TO INCENTIVE FOR THE VICTIM TO INVOLVE HIMSELF IN THE CRIMINAL JUSTICE PROCESS. A NEW PARADIGM -- ONE OF RESTITUTION -- WOULD CALL FOR A COMPLETE REFOCUSING OF THE IMAGE OF CRIME. WHAT IS NOW SEEN AS AN OFFENSE AGAINST SOCIETY MUST BE SEEN AS AN OFFENSE AGAINST AN INDIVIDUAL VICTIM. THERE ARE TWO TYPES OF RESTITUTION PROPOSALS: A SYSTEM OF 'PUNITIVE' RESTITUTION AND A 'PURE' RESTITUTIONAL SYSTEM. PUNITIVE RESTITUTION WOULD SIMPLY ADD RESTITUTION TO THE PARADIGM OF PUNISHMENT. THE RESTITUTION WOULD COME FROM THE OFFENDER'S OWN WORK, EITHER IN PRISON OR OUT, OR, IF A FINE IS USED, IT WOULD BE PROPORTIONAL TO THE EARNING POWER OF THE CRIMINAL, IN ORDER TO BE EQUALLY UNPLEASANT FOR A POOR OFFENDER OR A RICH ONE. THE AMOUNT OF RESTITUTION WOULD THUS BE DETERMINED NOT BY ACTUAL HARM DONE BUT BY ABILITY OF THE OFFENDER TO PAY. PURE RESTITUTION IS CONCERNED WITH COMPENSATION FOR ACTUAL DAMAGES. AN OFFENDER WOULD FIRST BE TRIED TO DETERMINE GUILT OR INNOCENCE. IF FOUND GUILTY AND ABLE TO MAKE RESTITUTION IMMEDIATELY, SHE WOULD DO SO. IF SHE COULD NOT, SHE WOULD EITHER BE ALLOWED TO WORK AND USE PART OF HER WAGES TO COMPENSATE THE VICTIM, OR SHE WOULD BE CONFINED TO AN EMPLOYMENT PROJECT, WHERE PART OF HER EARNINGS WOULD AGAIN BE SET ASIDE FOR RESTITUTION. EXPERIMENTATION IS BEING CONDUCTED WITH VARIATIONS ON THIS BASIC SYSTEM, AND REFINEMENTS WILL BE MADE. SOME ADVANTAGES OF RESTITUTION ARE THAT IT: (1) PROVIDES ASSISTANCE TO THE VICTIMS OF CRIME; (2) ENCOURAGES VICTIMS TO REPORT CRIMES AND TO APPEAR AT TRIAL; (3) AIDS IN THE REHABILITATION OF CRIMINALS; (4) PROVIDES A 'SELF-DETERMINATIVE' SENTENCE (I.E.,) THE LENGTH OF CONFINEMENT IS IN THE OFFENDER'S OWN HANDS -- THE HARDER HE WORKS, THE FASTER HE MAKES RESTITUTION); (5) SAVES TAXPAYERS A GREAT DEAL IN COURT COSTS AND THE MAINTENANCE OF INMATES; AND (6) DISCOURAGES MUCH WHITE COLLAR CRIME BY ELIMINATING LENIENT TREATMENT OF CORPORATE OFFICIALS AND REQUIRING REPAYMENT OF FUNDS EMBEZZLED. PRACTICAL, THEORETICAL, AND DISTRIBUTIONARY (I.E., THAT RICH PEOPLE WILL BE ABLE TO COMMIT CRIMES WITH IMPUNITY IF THEY CAN AFFORD IT) CRITICISMS OF RESTITUTION ARE ALSO DISCUSSED. (VDA)