Criminals Owe Debt to Victims, Not Society

http://www.americandaily.com/item/4164

Criminals Owe Debt to Victims, Not Society
Wendy McElroy, 01/04/04

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 -- victim's 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 law.

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 are handled.

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.


--
Atheism teaches that there is no God, hence no God-given rights. That
ideology coupled with a system that believed in the superiority of the state
at the expense of the individual was murderously synergistic.