Restitution in Criminal Law: Compensation and Punishment

A fifth theory of punishment gained traction in the twentieth century and is becoming more essential in criminal proceedings as technology develops.

Punishment and Compensation

Restitution, a fifth paradigm of punishment that gained traction in the twentieth century, is becoming more relevant in criminal proceedings as technology progresses and the criminal law becomes more mild. The doctrine of restitution, reparation, or reimbursement – whatever one refers to it – interprets the criminal’s duty to society in a more commercial sense (perhaps in a more humane sense). Couldn’t the criminal’s obligation to society be paid by useful contribution to the community and the persons he injured, in addition to suffering society’s retribution? The answer is often yes, and courts are increasingly resorting to this strategy as newer and more precise methods of monitoring convicted offenders are incorporated into the criminal justice system.

Compensatory Punishment

While criminals who serve active prison sentences do not have the opportunity to recompense the communities and individuals they have harmed, modern criminal justice methods are making active incarceration less necessary, giving convicted criminals more opportunities to perform compensatory services. More intensive probation, weekend jail time, and house arrest (which can be enforced by using an electronic ankle bracelet that alerts police when the arrestee tampers with the bracelet or goes somewhere other than home or work) are just a few of the methods that allow convicted criminals to perform services or make payments while serving their sentences. A thief who serves jail time on weekends but is allowed to work and live at home during the week on the condition that he pay back the business he stole from, plus damages; or a sexual offender who is placed under house arrest for a year and allowed to work on the condition that he pay for psychiatric treatment for his victim.

The Function of Punishment

Compensation has the potential to be extremely compatible with the conventional goals of punishment in criminal law. Unpaid work may be a particularly painful experience for persons who are used to thinking exclusively of themselves, as is frequently the case with criminal offenders. The heavy inconvenience of house arrest, weekends in prison, community work, and turning up hard-earned salaries may act as enough deterrent in individuals and in general, and has the capacity to meet retributive needs. Furthermore, although severe criminals typically need more secure kinds of restriction, electronic homing devices and rigorous probation are usually sufficient to keep the vast majority of criminal offenders from committing new crimes. Finally, it seems that the possibility for rehabilitation is far greater for offenders who are given the chance to work and give back to the individuals they’ve harmed, as well as to society as a whole.

The compensatory way of punishment is similar to the monetary damages given in civil action. Regardless of the parallels in penalty, there is a significant theoretical divergence between crime and torts. A tort is defined as a harm committed by one private person against another. It is a personal conflict in which two parties are unable to reconcile their disagreements, and power to handle the issue is delegated to a third party, the government’s judicial branch. A crime is a wrong committed by a private person against society as a whole. Even when the victim of a crime is an individual, as is often the case, it is (in principle) society as a whole that suffers the consequences and seeks reparation.