Divergent Goals, Clashing Philosophies

Divergent Goals, Clashing Philosophies

Even though support for restoring restitution to its rightful place in the criminal justice process is grow- ing, its advocates do not agree on priorities and purposes. Some advocates have been promoting

this ancient practice as an additional form of pun- ishment, while others tout it as a better method of rehabilitation. Still other champions of restitution emphasize its beneficial impact on the financial well-being of victims and its potential for resolving interpersonal conflicts. As a result, groups with divergent aims and philosophies are all pushing res- titution but are pulling at established programs from different directions (see Galaway, 1977; Klein, 1997; and Outlaw and Ruback, 1999).

Restitution as aMeans of RepayingVictims Those who advance the idea that restitution is primarily a way of helping victims (see Barnett, 1977; and McDonald, 1978) argue that the punitively oriented criminal justice system offers victims few incentives to get involved. Those who report crimes and coop- erate with the police and prosecutors incur additional losses of time and money for their trouble (for exam- ple, from missing work while appearing in court). They also run the risk of suffering reprisals from offenders. In return they get nothing tangible, only the sense that they have discharged their civic duty by assisting in the apprehension, prosecution, and conviction of a dangerous person—a social obliga- tion that goes largely unappreciated. The only satis- faction the system provides is revenge. But when restitution is incorporated into the criminal justice process, cooperation really pays off.

If the primary goal of restitution is to ensure that victims are repaid, then they should be able to directly negotiate arrangements for the amount of money and a payment schedule. Reimbursement should be as comprehensive as possible. The crimi- nal ought to pay back all stolen cash plus the cur- rent replacement value of lost or damaged possessions, outstanding medical bills from crime- related injuries (including psychological wounds attended to by therapists), wages that were not earned because of absence from work (including sick days or vacation time used during recuperation or while cooperating with the investigation and prosecution), plus crime-related miscellaneous expenses (such as the cost of renting a car to replace one that was stolen or the cost of child care when a parent is testifying in court). Repayment on the


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installment plan should begin as promptly as possi- ble because victims must foot the entire bill in the interim.

Restitution as a Means of Rehabilitating Offenders Advocates of restitution as a means of rehabilitation (see Prison Research, 1976; and Keve, 1978) argue that instead of being punished, wrongdoers must be sensitized to the disruption and distress that their illegal actions have caused. By expending effort, sacrificing time and convenience, and performing meaningful tasks, they begin to understand their personal responsibilities and social obligations. By making fiscal atonement or doing community service, they can feel cleared of guilt, morally redeemed, and reaccepted into the fold. Through their hard work to defray their victims’ losses, offenders can develop a sense of accomplishment and self-respect from their legitimate achievements. They may also gain marketable skills, good work habits (such as punctuality), self-discipline, and valuable on-the-job experience as they earn their way back into the community.

If restitution is to be therapeutic, offenders must perceive their obligations as logical, relevant, just, and fair. They must be convinced to voluntarily shoulder the burden of reimbursement because it is in their own best interest as well as being “the right thing to do.” However, offenders probably will define their best interests as minimizing any penalties for their lawbreaking. This includes minimizing pay- ments to injured parties, even if restitution is offered as a substitute for serving time behind bars. Offenders most likely will underestimate the suffering they have inflicted, while those on the receiving end may tend to overestimate their losses and want to extract as much as they can (see McKnight, 1981). The sensibilities of wrongdoers must be taken into account, because their willingness to make amends is the key to the success of this “treatment.”

Restitution as a Means of Reconciling Offenders and Their Victims Some advocates of restitution view the process primarily as a vehicle for reconcil- iation. After offenders have fully repaid the indivi- duals they hurt, hard feelings can dissipate. Also,

reconciliation between two parties who share responsibility for breaking the law can be achieved after face-to-face negotiations. In situations without a clearly designated wrongdoer, restitution might be mutual, with each of the disputants reimbursing the other for damages inflicted during their period of hostility. Both parties have to consider the resti- tution agreement to be fair and constructive if a lasting, peaceful settlement is to emerge. (The philosophy and operating principles of restorative justice, which relies heavily on restitution, are discussed in Chapter 13.)

Restitution as a Means of Punishing Offenders Those who view restitution primarily as an additional penalty (see Schafer, 1977; and Tittle, 1978) argue that for too long offenders have been able to shirk this financial obligation to their victims. First, con- victs should suffer incarceration to pay their debt to society. Next, they should undertake strenuous efforts to repay the specific individuals they harmed. Only then can their entanglement with the criminal justice system come to an end.

Reformers who promote restitution as a means of repaying victims, as a way of rehabilitating offen- ders, or as the basis for bringing about mutual rec- onciliation can come into conflict with crime control advocates who view restitution as an addi- tional means of punishment and deterrence. The problem with imposing restitution as an extra pen- alty following incarceration is that it delays repay- ment for many years. Because few convicts can earn decent wages while behind prison walls, the slow process of reimbursement cannot begin until their period of confinement is over, either when the sen- tence expires or upon the granting of parole. When punishment takes priority over reimbursement, the victims’ financial needs, the offenders’ therapeutic needs, and the community’s need for harmony are subordinated to the punitive interests of the state. As long as prison labor remains poorly paid, restitu- tion and incarceration will be incompatible.

The major argument against prioritizing reim- bursement is that the operations of the criminal justice system are intended to benefit society as a whole and not just the injured party. Other

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considerations should come first: punishing crim- inals harshly to teach them a lesson and to deter would-be lawbreakers from following their exam- ple, treating offenders in residential programs so that they can be released back as rehabilitated and productive members of the community, or incapac- itating dangerous persons by confining them for long periods of time. Subordinating these other sentencing objectives to restitution would reduce the legal system to a mere debt collection agency catering to victims, according to a 1986 Supreme Court decision (Triebwasser, 1986).

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