Restitutionism Theory – A Rejection

Abstract

The theory of restitution is one of the most recent theories of criminal justice. It seeks to justify the compensation of the victim by the criminal. It however has many weaknesses that make it a theory that should be approached critically and carefully. Its worst problem however is its self contradiction. It seems to disagree with the same justice it seeks to issue. This paper identifies these weaknesses and rejects the theory as insufficient.

Key words: Criminal justice theory, theory of restitution, criminology

Introduction

The criminal justice theory is a premise that seeks to identify all aspects of a crime and to administer justice for the victims. Criminologists have come up with a variety of theories that attempt to explain why people commit crimes, and how justice should be administered. Of importance to this paper is the way theorists have required that crimes be resolved. Major theories of criminal justice include retribution theory, consequentialist theory, and restitutionism theory. Compared to the other the other two, the theory of restitution is the most recent. This paper seeks to analyze and reject the theory of restitution on grounds on grounds of relevance and applicability.

Theories of Criminal justice

Theories of criminal justice seek to determine the type and level of punishment that should be met on one who commits a crime. Retributive theory supports ‘an eye for an eye’ aspect of punishment. It argues that one should be met with the level of punishment that matches with his crime. Consequentialist theories on the other hand hold that action or lack of it should only be taken if it ends up bringing a positive outcome. Finally, restitution theory argues that criminals should be punished by making compensation to the victims of the crime (Gergen, 2005).

Methodology

Immediately after the introduction of the theory of restitution by Randy Barnett as an opposition article to the other two theories, it was met with a lot of criticism. Most of the criticism was based on the fact that the theory could not be applied to all situations satisfactorily. For example, some critics argued that the theory could not be applied to those criminal activities that could be termed as victimless. Others felt that the theory would fail in crime prevention. These criticisms were followed closely by answers and improvements from those who favoured the theory.

This paper does not intend to show the validity of any of the criticisms or to show the insufficiency of any of the answers or improvements that were given. Instead, it seeks to show the irrelevance of the theory itself in its attempt to met justice. It seeks to show that the theory is self defeating and cannot be applied satisfactorily to some crimes without breaking its own prescriptions. The research paper initializes by studying the basic aspects of the theory. It is followed by a look at the sufficiency (and lack of it) of the theory. The possible opposition to the paper are then assessed and rejected.

Restitutionary theory

Restitutionary theory argues that justice can be administered by making the criminal compensate the victim for the crime committed (Hajdin, 1987). According to the theory, a crime has been committed to the victim and not to the society. With this respect, the victim and not the society has suffered a loss and needs to be compensated. To understand the theory, one must understand what the criminal must compensate, who he must compensate to and the means of compensation.

What should a criminal compensate?

The theory requires the criminal to compensate for the damage that have resulted from the crime. The theorists however indicate that the list of what should be compensated for be comprehensive. They argue that the criminal should be exhaustive in his compensation efforts (Hajdin, 1987). If for example a criminal act includes violence, the criminal should compensate for the physical harm caused, the psychological harm as well as costs incurred in medical bills, and for inability to raise an income caused by the crime. Furthermore, the criminal should also compensate for the costs incurred during the justice process. In essence, the theory advocates for full restitution. It argues that the victim should be left in a position that is no worse than where he would be if the crime had not occurred. In that regard, failure to compensate for any of the above costs would cost the victim either directly in bills and fees or indirectly in form of taxes.

Conflict has arisen on two aspects here. First, the definition of compensatory damage is unclear. It is not clear, for example, whether a victim should be compensated for those crimes that do not involve direct loss or damage (Hajdin, 1987). A good case is that of an attempted crime that does not go through or a crime that involves causing risk to other people. Second, the theory is unclear as to whether the criminal should compensate for the risk he initiated for the complete loss on the part of the victim (Linzer, 2001).

Who should be compensated?

The theory requires that the victim of the crime be fully compensated. However, there have been various conflicts insofar as who the victim of the crime is (Linzer, 2001). In the case of a murder, the direct victim is the person who has been killed. However, this person is not in a position to obtain compensation. Other victims include the family of the person to whom the crime has been committed in terms of the grief they undergo. A person who witnesses the occurrence of a serious crime may also suffer trauma as a result of it. A third class of people who may claim compensation are those who suffer as a consequence of the crime even if they are unaware of the occurrence. People may also choose to improve their security detail with the rise of criminal activities in their area hence incurring costs in terms of salaries for security personnel and payments for security equipment. A third class of people who may claim compensation are those who suffer as a consequence of the crime even if they are unaware of the occurrence. If the rate of crime increases, the rise in demand of security personnel and insurance may rise. The list of potential victims can therefore be very large if the entire list is populated. The victim ceases to be one person, but instead the society.

There has been conflict as to whether all those affected by a crime should be compensated. Most restitutionists have agreed that those who are affected by a crime either directly or indirectly by direct interaction with the crime or those involved should be compensated. Whether to compensate those who are affected by the crime indirectly without knowledge of its occurrence has been prone to a lot of conflict. The most acceptable notion, however, has been for the victim to compensate the society itself since the effect of a crime is wider than the individual.

How should compensation be done?

Compensation in monetary form has been widely accepted. There are however several possibilities of how this can be done. First, the criminal can simply pay the required amount of money. This is however not always possible as some criminals are not in a position to repay the amount of money that may be required for the crimes they claim. Second, in cases where the criminal is unable to cover the compensation fee, he may be put in a type of employment contract in which the cost is gradually deducted from his income. Third, radical theorists have argued that the criminal’s organs could be sold to cover the cost of compensation. Finally, restitutionists have argued that criminals should be involved in gladiator fights to raise the funds for their victims (Linzer, 2001).

Another form of compensation comprises the payment of the loss by performing activities that are required by victim (Tuckness, 2010). The victim may also want to resolve the issue by reconciliation. This method s however only applies upon request by the victim. This method the advantage of this method over any other is its ability to health the psychological damage that may result from a crime. Finally, traditional methods of punishment could be employed to punish. In this case, however, the prison services that are often covered by the state are covered by the victim.

Failure of the theory

The theory has been especially favoured by those who cite it as either morally acceptable or lacking internal contradictions. However, according to this paper these assumptions are mistaken.

First, if the theory is used as the foundation of criminal justice, there exist third parties who are negatively affected by the system. These are especially people related to the criminal. If, for example a criminal is required to compensate the victim in monetary form, his financial situation may be greatly affected as to disable him to service the needs of his family. The confinement of a criminal to an employment system on the other hand may expose his family to trauma. The sale of his body organs would incapacitate him hence leaving his family untended. The use of this theory of justice therefore uses causes unforeseen damage to third parties. These damages are often those that would have required compensation if they had been committed by a criminal to a victim. They include incapacitation, economic losses and trauma. The group of those who could be affected is wide and ever growing. It may include friends, family and colleagues. Other people may also be affected by the justice system for example without even knowing that the crime even existed. If a sufficient number of criminals had to sell their homes to cover compensation fees, they would, as a result, cause a decrease in price of homes in the area. While it is widely accepted that at least some of those affected by the crime without knowledge of its occurrence should be compensated for the inconvenience, it is not conceivable why such people are not included in the compensation program.

Another way restitution affects members of the family is by the size of the compensation that is often associated with it. The theory of restitution requires the victim to be fully compensated for his loss. There also exist a number of parties who qualify for compensation in the case of any crime. Third, restitution requires that the criminal settles all the damages caused by the crime.

For such reasons, it is evident that restitution will in most cases comprise of very huge sums will cause massive effects to third parties. Since the third parties are independent parties, it is evident that they should not experience such effects for a crime they did not commit. Restitution argues that causing such damage is wrong and should therefore be avoided. The fact that it then becomes the campaigner of the cause of such damages portrays restitution as an inconsistent theory.

The theory of restitution fails in uniting theory and practice. It only seems workable in philosophy but does not fit into real life situations of the society. It therefore stands so much as a theory that defeats itself as to be rejected.

Possible negations

In response to the conflict within restitution, theorists may argue that either it is right to cause damage to someone in response to a crime or that the weight of the damage is less than the weight of the damage caused by the crime. While this argument could be argued using the intention/foresight aspect and claiming that the damage to third parties is a foresight and not intended, the restitutionist case would be ironic. This is because restitutionists have assumed that the case of intended/foresight have assumed that this aspect of argument would be irrelevant from a restitutionist point of view. They believe that this aspect is one that only relevant to the theory of retribution.

Secondly, the restitutionist cannot argue that the damages caused to the victims by the criminal were only foreseen and not intended. This would imply that the crime does not exist in all cases where the damage was not intended but only foreseen by the criminal and therefore the criminal is innocent. For that same reason, it is unacceptable that the restitutionists should use the same argument in their defence.

Conclusion

The theory of restitution should be rejected on grounds of irrelevance and inconsistency. It argues that justice should comprise the compensation of the victim by the criminal. It further requires the criminal to compensate a large number of people to whom damage has been caused. The theory foresees the damage that is likely to be caused to innocent third parties in the case of compensation of such a large number of people. The theory also fails on other grounds. It does not explain sufficiently who should be compensated. It also does not address the total value to be compensated in the case of crimes that do not hold specific damage. The theory also does not address the issue of who should be compensated sufficiently. It fails to address the case of crimes that are committed that do not have a specific victim. Due to its weaknesses, together with the fact that the theory is self defeating, the theory should be laid to rest.

References

Gergen, M. (2005). A Thoroughly Modern Theory of Restitution: The Law and Ethics of Restitution. By Hanoch Dagan.+. Tex. L. Rev., 84, 173–2135.

Hajdin, M. (1987). Criminals as Gamblers: A Modified Theory of Pure Restitution. Dialogue, 26(01), 77–86.

Linzer, P. (2001). Rough Justice: A Theory of Restitution and Reliance, Contracts and Torts. Wis. L. Rev., 695.

Tuckness, A. (2010). Retribution and Restitution in Locke’s Theory of Punishment. The Journal Of Politics, 72(03), 720–732.