Most people realize
that the court and penal systems in North America are seriously broken and
must be fixed. With the possible exception of China, the United States currently
imprisons more of its population than any other nation: the Bureau of Justice
Statistics reports 2,033,331 imprisoned as of December 31, 2002.
And the tax burden for doing so is staggering. The answer to both problems may lie in one word: restitution.
Or two words -- victims' rights.
Solutions to the expense and other social costs of imprisonment abound, including
"private" prisons and the repeal of victimless crimes.
Without dismissing those approaches, I would like to challenge a basic concept
in the law. Namely, that criminals owe a debt to society. I believe an individual
who commits a crime owes a debt -- that is, restitution -- to the individual
who has been harmed.
For years, I've argued against the idea that categories of people commit
crime -- e.g. "men" are rapists, "men" commit domestic violence, "whites"
oppress minorities. Equally, I reject the idea that a category such as "society"
can be a victim in any legally meaningful sense. Categories do not swing
fists, rape, and murder: individuals do. Categories are not battered, violated,
and killed: individuals are. The real victims deserve to be the focus of
Repaying individuals for their injuries is associated with the civil courts,
which traditionally handle private and nonviolent matters such as contract
disputes. Civil judgments attempt to restore to individuals what they have
lost or, at least, to provide whatever compensation is possible. Often, court
costs can be assessed against those found "guilty."
Repaying society is associated with the criminal courts, which handle violence
such as rape and murder. Criminal judgments do not attempt to compensate
the individuals harmed except, perhaps, by providing the satisfaction of
seeing someone punished. Indeed, as taxpayers, the victims themselves pay
for that satisfaction by supporting an expensive judicial and prison system.
I believe both civil and criminal court systems should aim at compensating the victim.
What would a criminal system organized around restitution look like? No one
knows. The current system has evolved, for better or worse, over centuries
and circumstances. Any other system would do the same. But it is possible
to sketch a working hypothesis that gets the discussion rolling.
A criminal court that focused on restitution would force those convicted
to repay their victims not only for direct financial losses but also in compensation
for emotional trauma. Criminals would bear the cost of court proceedings
and of collecting any restitution that is not rendered voluntarily. If criminals
did not have the means to pay a judgment or could not be trusted to do so
over time, they could be monitored or confined to an institution for the
sole purpose of working to earn that compensation and to pay the cost of
confinement. The taxpayer would be taken out of the loop.
Objections immediately arise: for example, some categories of crime are so
heinous that they do not seem to allow restitution. How can you compensate
a victim of rape or murder?
I have always found this objection to be odd. The fact that there may be
no perfect or adequate form of restitution is not an argument against providing
whatever repayment is possible. A rapist cannot restore a victim's sense
of safety but he or she can be made to pay such items as medical bills, the
cost of counseling, and compensation for emotional trauma. A murderer cannot
repay his debt to the dead but he can be forced to earn money to pay in perpetuity
the expenses of a victim's family: food, mortgage, tuition, and so on. It
is odd to argue that only non-criminal or trivial injuries deserve restitution.
The more serious the injury, the more it seems that the victim deserves compensation.
Another objection: what happens to the healthy desire for vengeance? That
desire would have to be satisfied by the penalties imposed. The justified
rage of victims cannot become the foundation of jurisprudence if courts are
to preserve objectivity.
And what of the repeat and violent offender? A criminal who chooses repeatedly
to rape (for example) is the Achilles heel of most systems of justice, including
one based on restitution. Such a criminal may pose such a clear and present
danger to others that preventative imprisonment is the only option. But these
extreme cases should not dictate how the overwhelming majority of offenses
In focusing on restitution, the distinctions between civil and criminal court
would not be entirely collapsed. Those distinctions recognize important differences
between a dispute and a violent crime. One difference: restitution for non-violent
conflicts is far more limited and often confined to paying for a dented fender
or its equivalent. Thus, civil courts adjudicate "guilt" by a preponderance
of the evidence. Restitution for violent crimes is more likely to include
extreme judgments. Thus, criminal courts would properly maintain the standard
of "beyond a reasonable doubt."
Every court system is rife with possibilities for corruption or injustice;
the preceding one is no exception. Prisoners who are forced to work can be
exploited by corporations who pay them far less than their labor is worth.
People could be imprisoned simply to swell that labor pool. But such difficulties
are no more insurmountable than the ones confronting any other system.
And a justice built on restitution has at least three advantages over others:
the victim is the beneficiary; the prison population is reduced; and, taxpayers
do not literally pay for crimes they have not committed.
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.