The Rise, Fall, and Rediscovery of Restitution
The practice of making criminals repay their victims is an ancient one. Spontaneous acts of revenge were typical responses by injured parties and their kin before restitution was invented. Prior to the rise of governments, the writing of laws, and the crea- tion of criminal justice systems, the gut reaction of people who had been harmed was to seek to “get even” with wrongdoers by injuring them physically in counterattacks and by taking back things of value. But as wealth accumulated and primitive societies established rules of conduct, the tradition of retaliatory violence gave way to negotiation and reparation. For the sake of community harmony and stability, compulsory restitution was institution- alized in ancient societies. Reimbursement practices went beyond the simplistic formula of “an eye for an eye and a tooth for a tooth.” Restitution was intended to satisfy a thirst for vengeance as well as to repay losses. These transactions involving goods
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and money were designed to encourage lasting set- tlements (composition) between the parties that would head off further strife (Schafer, 1970).
In biblical times, Mosaic law demanded that an assailant repay the person he injured for losses due to a serious wound and required that a captured thief give back five oxen for every one stolen. The Code of Hammurabi granted a victim as much as 30 times the value of any possessions stolen or damaged. Under Roman law, a thief had to pay the victim double the value of what he stole if he was caught in the act. If he escaped and was caught later, he owed the victim three times as much as he took. And if he used force to carry out the theft, the captured robber had to repay the injured party four times as much as he stole. Under King Alfred of England in the ninth century, each tooth knocked out of a person’s mouth by an aggressor required a different payment, depending upon its location (Peak, 1986).
In colonial America before the Revolution, criminal acts were handled as private conflicts between individuals. Police departments and public prosecutors did not exist yet. A victim in a city could call upon night watchmen for help, but they might not be on duty, or the offender might flee beyond their jurisdiction. If the injured party sought the aid of a sheriff, he had to pay a fee. If the sheriff located the alleged perpetrator, he would charge extra to serve a warrant against the defen- dant. When the suspect was taken into custody, the complainant had to hire a lawyer to draw up an indictment. Then the complainant either prose- cuted the case personally or hired an attorney for an additional fee to handle the private prosecution. If the accused was found guilty, the person he harmed could gain substantial benefits. Convicted thieves were required to repay their victims three times as much as they had stolen. Thieves who could not hand over such large amounts were com- pelled to be servants until their debts were paid off. If the victims wished, they could sell these inden- tured servants for a hefty price, and they had one month in which to find a buyer. After that, victims were responsible for the costs of maintaining the offenders behind bars. If they didn’t pay the fees,
the convicts were released (Geis, 1977; Jacob, 1977; McDonald, 1977; and Hillenbrand, 1990).
In the years following the American Revolu- tion, the procedures that the British had set up in the colonies were substantially reorganized. Refor- mers were concerned about the built-in injustices afflicting a system in which only wealthy victims could afford to purchase “justice” by posting rewards and hiring sheriffs, private detectives, bounty hunters, and prosecuting attorneys. Crimes were redefined as acts against the state. Settling individual grievances was no longer regarded as the primary function of court proceedings. To pro- mote equal handling and consistency, local govern- ments hired public prosecutors. State agencies built prison systems to house offenders. A distinction developed within the law between crimes and torts. Crimes were offenses against the public and were prosecuted by the state on behalf of “the people.” Torts were the corresponding wrongful acts that harmed specific persons. Criminals were forced to “pay their debt to society” through fines and periods of confinement. But injured parties who wanted offenders to repay them were shunted away from criminal court and directed to civil court, a separate arena where interpersonal conflicts were resolved through lawsuits (McDonald, 1977).
The modern rediscovery of restitution in the United States began in 1967, when the President’s Commission on Law Enforcement and the Adminis- tration of Justice recommended the revival of this old practice that had fallen into disuse. Since the 1970s, opinion polls have indicated widespread public support for its restoration. A greater reliance on resti- tution also was endorsed by the American Law Insti- tute, the American Bar Association, the American Correctional Association, the National Advisory Commission on Criminal Justice Standards and Goals, the Supreme Court, the National Association of Attorneys General, the Office for Victims of Crime of the Justice Department, and reformist groups such as the National Moratorium on Prison Construction. The Federal Victim/Witness Protection Act of 1982 removed restrictions that had limited restitution to simply a possible condition of probation within the federal judicial system.
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Also in 1982, the President’s Task Force on Victims of Crime noted that it was unfair that peo- ple suffering serious injuries had to liquidate their assets, mortgage their homes, get along without adequate health care, or cut back on tuition expenses while criminals escaped financial responsi- bility for the hardships they inflicted. The task force recommended that judges routinely impose restitu- tion or else clearly explain their specific reasons for not doing so. The Violent Crime Control and Law Enforcement Act passed by Congress in 1994 made restitution mandatory in federal cases of sexual assault or domestic violence. The enactment of the Mandatory Victim Restitution Act of 1996 imposed repayment obligations on all violent offen- ders in the federal system. The Federal Bureau of Prisons created a payment collection program in the late 1980s that many state correctional authorities have copied. The growing use of alternative, creative, or constructive sentences reflects the redis- covery of restitution by judges (Leepson, 1982; Harland, 1983; Herrington, 1986; McDonald, 1988; National Victim Center, 1991b; Galaway, 1992; and Office of Justice Programs, 1997).
In the juvenile justice system, restitution has been ordered more often and for a longer period of time. The oldest existing repayment program for people who have been harmed by delinquents was initiated in Florida in 1945. The earliest community service program was set up in South Dakota in 1965. A Minnesota program established in 1972 was the first to allow youthful offenders to perform direct services for victims instead of paying them in cash. It also pioneered the use of mediation sessions between the two parties to foster a spirit of recon- ciliation. Hundreds of juvenile restitution projects were set up during the 1970s and 1980s (Warner and Burke, 1987; Klein, 1997; Bradshaw and Umbreit, 1998; and Roberts, 1998).