Assessing the Criminal: Restitution, Retribution, and the Legal Process*
Assessing The Criminal (Ballinger Pub. Co., 1977)
Randy E. Barnett
John Hagel III
COMPETING GOALS AND THE QUEST FOR CRIMINAL JUSTICE
Perhaps the single most important characteristic of the contemporary criminal justice system in the U.S. is the profound sense of malaise, if not
crisis, that pervades the entire field. Thomas Kuhn, in his path-breaking work on The Structure of Scientific Revolutions, has noted that a growing awareness of the breakdown of the capacity for problem solving within an existing
paradigm has typically preceded a major transition to a new paradigm. It is precisely this type of breakdown that has generated so much concern both among professionals within the criminal justice system and among concerned
citizens who are exposed to the consequences of this breakdown. In an important sense, however, this analogy is not entirely appropriate, since it is
not clear that there is an existing paradigm of criminal justice, at least in the sense of an explicitly and systematically articulated framework for dealing with the problem of criminal behavior. Certainly at the intellectual
level the most remarkable feature of the criminal justice system is the almost complete lack of consensus regarding the most appropriate policies for responding to criminal behavior.
Furthermore, at the institutional level the situation becomes even more confused. As James Q. Wilson notes in the preface of this collection, it may be misleading even to
describe the criminal justice system as a "system." Partly this is a result of the fact that the administration of criminal justice in the United States is largely undertaken at the local or state level and thus
considerable variations in procedures and institutions may be encountered from one jurisdiction to the next. Probably more important, however, is the fact that our institutions reflect the confusion of our intellectual efforts to
con-front the problem of criminal justice. Moreover, since institutions change only slowly over time, they tend to represent a complex amalgam of existing policies and residues of earlier policies, some of which may have long since
been discarded at the intellectual level. In examining the prevailing conceptual approaches to the problem of criminal justice, it is
possible, despite the conflicting goals that differentiate these approaches, to identify two characteristics that they all share. The first is the assumption that there is a fundamental distinction to be made between tort law and
criminal law. While the reasons for this distinction sometimes vary, the effective result is to define criminal behavior primarily in terms of the relationship between the criminal and society or, more specifically, between the
criminal and various governmental institutions that presumably reflect the interests of society. While the individual victim of criminal behavior may be seen as triggering this relationship, there is considerable ambiguity
regarding the role of the victim after the criminal act has occurred and has been reported to the appropriate government authorities. In fact, the broad category of so-called "victimless crimes" raises the question as to
whether current concepts of crime even require the existence of a victim. A second characteristic shared by prevailing intellectual approaches to the problem of
criminal justice is that they seek to define the relationship between the criminal and society in terms of future-oriented goals. While the precise content of these goals may vary considerably, they all seek, in the words of John
Hospers, "to make the future better." From this perspective, society's response to crime is measured by its effectiveness in reducing the incidence of criminal behavior. Since there is a scarcity of resources, it becomes
necessary to choose among conflicting goals and to establish some schedule of priorities in which some goals acquire precedence over others. It is generally thought that the selection process should be governed by some form of
utilitarian calculus that weighs the costs and benefits associated with each goal. It is at this point that the various approaches begin to diverge and the resulting confusion becomes apparent. For, while there may be general
agreement over the need for some type of utilitarian selection process, no single process has yet been able to achieve widespread acceptance, and some observers have begun to suggest that this failure may be the result of certain
fundamental flaws in the underlying utilitarian assumptions. Thus, the formulation of criminal justice policies has been hampered by an inability to choose among numerous conflicting goals, and this has resulted in policies marked
by contradictory goals and shifting, ad hoc institutional compromises. The malaise within the criminal justice system stems not so much from the existence
of contradictory goals but from the apparent inability of the criminal justice system to meet any of the goals that have been proposed. It is illuminating, if somewhat depressing, to review some of this evidence. The three most
widely accepted goals within the criminal justice system are: (1) deterrence-maximizing the perceived costs to potential criminals and thereby reducing their willingness to engage in criminal behavior; (2) rehabilitation-developing
treatment programs for those who have already committed criminal acts in an effort to ensure that these individuals will not repeat their acts in the future; and (3) incapacitation-isolating in prisons those who have committed
criminal acts so that they will be prevented, at least for specified periods of time, from engaging in further criminal conduct. In evaluating
the deterrent impact of current criminal justice policies, a brief examination of the FBI's crime statistics for 1975 provides a revealing introduction to the extent of the crime problem in the U.S. today. For example, an average
of twenty-one serious crimes are reported every minute in the US., while one violent crime is reported every thirty-one seconds. Not only is the problem serious, but there is evidence that it is getting worse, suggesting that,
whatever deterrent effect the criminal justice system does have, its effective-ness in deterring crime may be decreasing over time. According to these statistics, the crime rate increased by almost 9 percent in 1974-1975 alone and,
over the period 1960-1975, the crime rate has in-creased by almost 180 percent. As Roger Meiners indicates in Chapter 14, recent surveys of
criminal victimization rates by the Law Enforcement Assistance Administration (LEAA) suggest that much of this increase in reported crimes may actually be a result of more effective reporting of criminal behavior rather than the
result of actual increases in criminal activity. While this is somewhat reassuring, the LEAA surveys also indicate that the rate of actual victimization is considerably higher than the reported crime statistics of reported crime
suggest. Growing concern over the reliability and interpretation of crime statistics has further complicated the utilitarian approach to the criminal justice problem by underscoring the fact that any evaluation of goals on the
basis of statistical evidence alone can never be conclusive. Attaining the goals of rehabilitation, incapacitation, and perhaps to a lesser extent,
deterrence critically depends on the ability of the criminal justice system to accurately identify and successfully prosecute the criminal. Unfortunately, there are strong reasons to question its abilities in performing these
functions. The FBI's statistics for 1975 reveal that only 21 percent of all serious crimes were "cleared" With regard to the goal of incapacitation, James Q. Wilson has observed that fewer people, as a proportion of the total population, are in prison today than were
in prison in 1955, despite the fact that the crime rate has more than doubled in the same time period. Thus, the existence of more criminals and fewer prisoners suggests that even the relatively limited goal of incapacitation has
been increasingly difficult to achieve. While recidivism is notoriously difficult to measure statistically, the limited available evidence casts considerable
doubt on the rehabilitative effect of imprisonment. One important study of California correctional programs concluded that variations in recidivism rates could not be explained in terms of the correctional programs to which the
criminal had been assigned, but rather that these variations were largely attributable to initial differences among the offenders processed. In other words, none of the correctional programs examined had any measurable effect on
the likelihood that a particular offender would commit another criminal act in the future. Actual estimates of recidivism rates, which vary depending on the
nature of the crime and the particular methodological assumptions employed, range from a low of approximately 35 percent to 80-90 percent. One study of FBI data on offenders who were released in 1972 indicated that, depending on
the particular category of crime involved, between 64 and 81 percent had been rearrested by 1975. In view of the doubtful effectiveness of existing policies, the
magnitude of their monetary costs becomes particularly disturbing. In 1973, public expenditures at all levels of government on correctional programs alone totaled $2.74 billion, while expenditures on the criminal justice system as
a whole reached nearly $13 billion in the same period. Thus, even if one were to accept the utilitarian assumptions underlying most contemporary discussions of the
criminal justice system, it seems clear that serious problems have emerged, and the ability of the system to confront these problems effectively appears increasingly open to question. Measured then by their own standards and their
own goals, the prevailing approaches to criminal justice are found wanting.
The growing dissatisfaction with this performance has given rise to an increasing receptivity to new
perspectives and has made people more willing to question the fundamental assumptions that have guided policy formation for so long. In particular, there has been renewed interest in two theories of criminal justice that have a
rather long tradition but have generally been in disfavor among more "social science "oriented policymakers. These two theories-retribution and restitution-by requiring a reconsideration of the question of individual
rights and of the extent to which policy formulation must be constrained by a prior conception of rights, demand a fundamentally different conception of criminal justice. As a consequence, there has been considerable resistance to
this revival by defenders of contemporary utilitarian orthodoxy. This development in the theory of criminal justice has been reinforced by recent developments in
contemporary political and legal philosophy for, in these fields, the question of individual rights has once again become a hotly debated issue. This new concern is not with legal rights, but with the existence and content of
individual moral rights that are independent of the state and the will of the majority. John Rawls, in his monumental study of A Theory o f Justice, has
done more perhaps than any other philosopher in precipitating this debate. His theory challenged the dominant positivist and utilitarian traditions in philosophy and eloquently developed an alternative framework within which
philosophical discussion might proceed. Most significantly, this new framework prepared the way for a new examination of the concept of justice from the perspective of individual rights. Robert Nozick, Professor Rawls' colleague in
the philosophy department at Harvard University, expanded upon the concept of individual rights in his book Anarchy, State and Utopia and explored some of its implications for moral and political philosophy.
Nozick begins by asserting that "individuals have rights, and there are things no person or group may do to them (without violating their rights).
Although Nozick specifically declined to lay out a theory of rights, this task was undertaken shortly afterward by Ronald Dworkin, professor of jurisprudence at Oxford University. His book, Taking Rights Seriously, outlines a theory of rights that is both far-reaching and a sharp break with the positivist theory that has dominated political and legal philosophy for so long. Dworkin draws an almost identical distinction between rights and moral goals. "I shall say that an individual has a right to a particular political act, within a political theory, if the failure to provide that act, when he calls for it, would be unjustified within that theory even if the goals of the theory would, on balance, be disserviced by the act. 4 And: "Rights based theories are ... concerned with the independence rather than the conformity of individual action. They presuppose and protect the value of individual action and choice." 5 The assumption of a rights-based theory is "that individual rights must be served even at some cost to the general welfare. 6 His final formulation of the concept of rights is strikingly similar to Nozick's: " . . . if someone has a right to something, then it is wrong for the government to deny it to him even though it would be in the general interest to do so." 7
Discussions of criminal justice frequently refer to "rights," but in this context the word has traditionally been accorded a different meaning. What are usually at issue are "constitutional rights," rights
granted the individual by the state, and even these rights are usually procedural in nature, e.g., the right to counsel or the right to a speedy trial, etc. These discussions have another marked characteristic: they are almost
exclusively concerned with the constitutional rights of criminal defendants and the so-called rights of society. Contemporary attitudes leave little room for the possibility that other participants in the criminal justice process
may have rights as well. What makes the approaches of Nozick and of Dworkin so important is that they force us to contemplate the rights of all persons in
all contexts including, a fortiori, the rights of all participants in the criminal justice system, and to do so outside the narrow context of constitutional construction and reasoning. A framework of individual rights enables us to
analyze each problem from a new perspective. Such a methodology offers us an opportunity to confront the inadequacies of existing institutions by critically challenging each assumption underlying the establishment of these
institutions. This approach offers a promise of new solutions that could scarcely even be conceived within the existing paradigm. To perceive
the significance of this new approach, it is necessary to examine more carefully the traditional formulation of the rights of the parties in the criminal justice system. We should begin by identifying the individuals considered to
be parties to the criminal action. Crime has, since the Norman conquest, been viewed as an offense committed against the king and later the state. The person against whom the crime was actually committed- the "victim"-
was (and still is) considered to be only a witness to the crime. Given this vision, it is not difficult to predict how rights in such a system will be allocated. Since the function of the criminal justice system was, until
recently, primarily to inflict suffering on "bad" criminals for their evil acts in the name of society, it was necessary to balance the rights of society against the rights of the accused. In this regard, procedural
safeguards can be seen as performing a vital role; they serve to assuage the consciences of the community when it is confronted with the sight of criminals suffering "for their sins."
In Chapter 10, "Crime and Tort: Old Wine in Old Bottles," Richard Epstein shows that the traditional distinction between the criminal
and civil legal processes can only be explained (and he believes justified) by the moralistic posture of the criminal law, which gives rise to the need to judge the mental state of the accused and to punish accordingly. This, in
turn, contributes to the need for procedural safeguards against wrongful punishments. The brutalities that such a system can produce and the lack of any resemblance to rationality in proportioning punishments has led some, like
Walter Kaufmann in Chapter 9 to reject punishment and justice altogether. Another consequence of a theory of justice that focuses on the moral attributes of those
accused of crimes is the need to probe the psyche to determine the extent of "badness" present. This often leads to the paradoxical result that those persons who commit the most heinous crimes may escape punishment
entirely. Such a result arises when the criminal act is so inhumane as to raise a question about the offender's "sanity." In this context, sanity is
defined by the psychiatric establishment with reference to "some gross deviation from normal human behavior" and thus a savage, shocking crime may in itself be interpreted as strong evidence of psychiatric abnormality. As
a result, psychiatric examinations are routinely ordered in any particularly severe crime (provided no monetary motive is present). The offender who is found "insane" is "not responsible for his acts," a
conclusion that can only be understood in the context of moral responsibility. Since this approach is exclusively concerned with judging the moral attributes of offenders (as opposed to judging the morality of their acts), when an
offender is incapable of "understanding right and wrong," he is not to be punished even if he perfectly well under-stands how to use a car, gun, knife, or axe.
What then happens to those acquitted by reason of insanity? Consistent with the assumptions underlying this approach to criminal conduct, an effort is made to
instill in the offender a sense of moral responsibility. In Chapter 3, Dr. Thomas Szasz examines the uses and inevitable abuses of so-called "psychiatric diversion" programs that may result in imprisonment for much longer
periods than the statutory penalty for the crime or, alternatively, in the quick release of criminals who, regardless of the severity of their offense, have been deemed "rehabilitated." As a result, Szasz condemns the
entire category of criminal defenses involving insanity, incompetence, and reduced capacity. Far from being isolated examples of the misapplication of current
philosophies of punishment, the lack of proportionality between punishment and criminal conduct is a natural result of "intent theories of punishment" which require the court to investigate and pass judgment upon the
mental processes of those accused of criminal conduct. By shifting our attention from the criminal's mental state to the nature of the criminal's acts, and the consequences of these acts, we can begin to extricate ourselves from
these theoretical and practical difficulties. Once we shift our inquiry to the nature of the criminal act as opposed to the criminal's mental state, we are immediately confronted with the other party to crime-the victim. Only by
examining the relationship between the criminal and the victim that is created by a criminal act are we able to judge the moral status of the act. In an
unpublished manuscript, Murray N. Rothbard has illustrated this point with the example of a person who is observed to be forcibly taking a watch from another person. He correctly points out that this observation alone is not
sufficient to allow the attachment of criminal liability, for the man taking the watch might be stealing it, or he might be trying to retrieve the watch from a thief. It is not the intent of the parties that determines the outcome;
it is the respective rights of the parties, in this case to the watch in dispute. Only when this is determined-when the rights question is resolved-can we attach liability.
It should be apparent, then, that the contemporary exclusion of the victim described in Chapter 13 is no institutional accident. The intent theories of punishment
simply provide no place for a victim except as a witness to the manifestation of evil intent. Although the traditional theoretical approach as formulated, for example, by John Hospers in Chapter 8, "Retribution: The Ethics of
Punishment," with its focus on the criminal's moral "desert," contains no comfortable "slot" for the victim, Randy Barnett, in Chapter 16, "Restitution: A New Paradigm of Criminal Justice," cites
historical evidence that this has not always been the case. In fact, until the rise of European nation states and the consolidation of the institution of the monarchy, the victim of aggression had occupied the central focus in
traditional legal systems in Europe. Under these earlier systems, which prevailed for centuries, aggression by one individual against another had been dealt with by requiring the aggressor to make payment of money or personal
services to the victim or the victim's kin to compensate for any losses. As Barnett's account demonstrates, the current view that contemporary forms of state
monopoly justice arose to protect individuals from the uncontrollable violence of blood feuds is a serious distortion of history. Blood feuds had in fact largely been replaced by institutional forms of restitution long before the
rise of feudal monarchies and the forcible imposition of a new system for dealing with criminal behavior. Such commonly accepted myths determine in many respects our prevailing responses to the criminal justice problem. Only by
challenging them will we be able to explore the dimensions of a new paradigm based on a systematic examination of the rights of each individual involved in the criminal act. We should be forewarned that any new paradigm may raise
more questions than it answers, but what really matters is the promise of solutions. We may begin to explore the dimensions of this new paradigm by considering
the rights of the victim. Perhaps the most important insight of this new paradigm is that a crime exists because the rights of an individual, rights that each of us possess, have been violated in some way. Once this is
acknowledged, the victim must be considered a party to the criminal prosecution. In contrast with a positivist conception of crime, this conception defines crime
in terms of the actions of one or more individuals that violate, or threaten to violate, the rights of one or more other indi-viduals. One implication of this is that a criminal action necessarily involves a minimum of two
individuals: an aggressor and a victim. It will be readily seen that this formulation diverges fundamentally from the positivist approach, which defines crime as any action that has been prohibited by statute. Our view of criminal
conduct, on the other hand, would encompass any action that violates individual rights regardless of whether that action has been statutorily prohibited. Similarly, our conception would regard "victimless" crimes as a
contradiction in terms: there can be no crimes without victims. Any discussion of criminal justice presupposes a definition of what constitutes criminal behavior.
Ronald Hamowy's paper (Chapter 2) represents an important contribution to our understanding of the process by which many sexual activities that do not violate the rights of other individuals came to be declared illegal. Contrary to
popular conception, many of these activities had not been legally prohibited prior to the first few decades of the twentieth century, and the expansion of American criminal law into these areas was not precipitated by a revival of
religious zeal. Rather, the nineteenth century may generally be characterized as a period of relatively limited statutory intrusions into private sexual activity. The dramatic growth in statutory law in this field was actively
promoted by the medical and psychiatric professions which had come to view certain forms of sexual behavior as immoral conduct to be suppressed through criminal law. The medical and psychiatric theories that served to justify such
a significant inflation of statutory law have long since been discredited, but their legacy lives on in the statute books. Until the entire concept of victimless crimes has been abandoned, it will continue to obscure the true
nature of crime, thereby frustrating efforts to confront the problem of criminal justice. Our definition of crime focuses on the violation of rights and, in
particular, the fundamental right of all individuals to be free in their person and property from the initiated use of force by others. If this right is violated, an imbalance is created between the offending party and the victim.
We are accustomed to speaking of a criminal paying his "debt to society," but we would suggest that this is a remnant of our feudal past. Within the framework presented here, it is more appropriate to speak of paying
one's "debt to the victim." Only when the imbalance created by the criminal act has been rectified can it be said that justice has been done. Although such a concept of crime has only recently become academically
respectable, it has never been beyond the common sense of the non-philosopher. Nor is this attitude foreign to traditional American concepts of justice. In Chapter 13, William F. McDonald points out that the American sys-tem of
justice abandoned this view in favor of the societal view of crime only gradually and reluctantly. While the new paradigm focuses on the right of a victim to
demand rectification of the imbalance created by the criminal act, the precise nature of this rectification continues to be a controversial issue. In Chapter 11, "Punishment and Proportionality," Murray N. Rothbard
stresses the important insight that the rights of the victim to seek rectification are necessarily limited by the nature and consequences of the offense against which rectification is sought. In other words, the concept of
rectification implies a rigorous standard of proportionality relating the sanction imposed upon the offender to the nature of the offense. The controversy,
however, arises over the precise nature of the sanctions that may be employed for a particular crime. Rothbard would argue that, if the criminal act had involved the infliction of pain, the victim would be entitled to inflict a
proportional degree of pain on the offender. However, the victim would have discretion to decide to impose a lesser sanction or even no sanction at all. An
alternative approach would be to limit the range of sanctions available to the victim by declaring that the deliberate infliction of pain or suffering upon an offender will not be permitted as an end in itself and that only if the
pain or suffering results from an attempt to enforce some other form of sanction will it be permitted. Under this alternative approach, only sanctions that were designed to pro-vide constructive reparation to the victim, either in
the form of money or services, would be permitted. Since this debate has just begun, the contours of these alternative approaches can only be tentatively and somewhat sketchily outlined. What is important, however, is the very
existence of the debate. As already suggested, this new paradigm of criminal justice would allocate to the victim a central decision making role in determining
the nature of the sanction to be imposed upon the convicted offender. Within the limits established by the principle of proportionality, the victim may specify the form of sanction to be imposed, or he may delegate this
responsibility to another (perhaps the court) or he may partially or completely forgive the criminal. This discretion may be exercised by the victim for any reason whatsoever. In this respect, a rights approach to crime does not
foreclose the pursuit of various goals within the criminal justice system; it merely stipulates the party (the victim) that will have the discretion, always within the limits imposed by the nature of the original criminal act, to
choose among a wide variety of possible goals. It should be noted that, while a restitutive theory recognizes important rights in the victim and seeks to redress
the long-standing neglect of the victim in the criminal justice system, this does not imply an endorsement of any measure that purports to assist victims. Roger Meiners (Chapter 14) demonstrates convincingly the profound economic
and practical problems that would be encountered in the implementation of any of the programs for government-financed victim compensation that have been presented in Congress in recent years. The restitutive theory would also
reject such programs on moral grounds since, rather than providing for compensation of the victim by convicted offenders, these programs would place an additional tax burden on the rest of the population to compensate the victim
for his misfortune. In effect, such programs are not very different from conventional welfare programs, and they would entail a violation of the rights of innocent third parties in order to achieve the goal of compensating victims.
In a significant sense, a restitutionary theory of justice shifts the focus of decision making to the victim, but at the same time, it reserves certain important
rights to the criminal, rights that are more specific and meaningful than the rights of the criminal that are recognized by the present system. Currently, as long as the sanction is determined according to law, in adherence to the
procedural due process rights of the accused, and as long as the sanction is not so extreme as to be considered "cruel and unusual" (a very narrowly defined standard), the criminal does not have a right to any limiting
standards of proportionality. Partly in response to this situation, there has, in recant years, been a growing movement on behalf of so-called "prisoner's
rights." In this movement does not reflect a proper understanding of the meaning of "rights," at least in the sense in which the word has been used here. Rather, in an effort to shield individuals from the extreme
vagaries of a penal system generally acknowledged to be irrational and unjust, this movement argues that the "interests" of the criminal must be balanced with a variety of other factors in an effort to achieve a
"fair" system. In contrast to this balancing approach, the restitutionary theory of justice suggests that the criminal has certain rights that need not
be balanced" at all. In his famous pronouncement, Hegel asserted that punishment is regarded as containing the criminal's right and hence by being punished he is honored as a rational being." While the restitutionary
approach shares little with Hegelian philosophy, this statement, cut loose from its underlying theory, is suggestive of an important insight. The criminal does
have a right to punishment or, rather, a right to limited punishment measured by the extent of his transgression. This right stems from the underlying assumption that all persons have rights and that the criminal has only
abrogated his to the extent that he has violated the rights of others. Therefore, "the criminal's right as a "rational being" is the right to be protected from a sanction that beyond the nature and consequences of
his acts. In short, the criminal's rights pick up at the exact point that the victim's rights leave off. Furthermore, since we are advocating a relatively specific approach to sanction formation, the criminal has as much
right to participate in the adherence to that approach as does the victim. Moreover, party to the action (with considerable knowledge about the crime committed), he has a right to participate in the determination .t the
sentence. This is in sharp contrast to the current arguments in mitigation, which are usually heard at the discretion of the court and usually serve merely as a device to provoke sympathy for the accused.
It would be misleading to characterize the present system as harsh or excessively permissive since, by restitutionary standards, it may sometimes be one or
the other. The point is precisely that, as a consequence of the reliance on faulty conceptions of it, the present system will almost certainly be one or the other. Some criminals may be punished too harshly, while others are
punished leniently. Advocates of "law and order" will tend to focus on one aspect, while civil libertarians will be more concerned with the other. As may he expected in such a long-standing dispute, the two sides
are focusing on two dimensions of the same problem, and side has been able to identify the underlying problem. The convicted offender then has a right to a just
sanction, which is ultimately based on the nature and consequences of his acts and which, in this limit, may be specified by the victim. This does not, however tell us about the rights of the accused. The right to impose sanctions
on the criminal can only be derived from the fact that he did trespass on the rights of others. What about those who are accused of a crime but who either did not commit the crime or against whom the evidence is weak?
The assumption underlying the rights approach, to repeat, that all individuals have certain rights that can only be alienated by their own free choice. The accused
who is in fact innocent has, therefore, al the rights of the non-accused for he has done nothing to alienate those rights. Any forceful imposition is, therefore, an unjustifiable violation of that individual's rights, It is
not sufficient to define other procedural requirements and then to permit infringement upon an individual's substantive rights so long as those procedural requirements are satisfied. Even if undertaken in good faith, the
prosecution of an innocent person that results in the infringement of that person's substantive right in any way is itself a crime. The authority responsible for such a prosecution would be liable, provided, of course, that
the falsity of the prosecution can be established. The standards of proof necessary to implement that approach are discussed below. Of course, the inherent uncertainties of
human knowledge must be acknowledged. The rights we posit are ontologically grounded, that is, grounded and derived from the facts of human existence and the facts of specific actions. In order to identify the rights of each
individual in a particular situation, it is first necessary to ascertain the factual context and it is inevitable that humans will occasionally err in pursuing this factual inquiry. The possibility of such error must be recognized,
and procedures must he devised that will remedy any injustice caused by such errors. The American adversary system has often been criticized as an inadequate
process for "truth seeking." However, even more broadly, it might be suggested that any system that structures judicial decisionmaking oil the basis of presumptions and procedural devices rather than on the basis of an
explicit and overriding concern for the facts of the specific case must, to some extent, compromise its "truth reeling" function. It is a tribute to one common sense rejection of the positivist imperative that, the
current, system seeks the truth to the extent that it does. As a consequence of its affirmation of the primacy of the truth-seeking function, the restitutionary theory of justice provides philosophical support for our deeply
ingrained intuitive beliefs. Since this chapter is primarily concerned with outlining a substantive theory of criminal justice, the many problems of
crafting a legal process consistent with that theory must unfortunately remain largely beyond its scope. However, Lloyd Weinreb, a professor at Harvard Law School, has recently published a study entitled Denial of Justice
that moves beyond a critique of the adversary system and presents a proposal for ail alternative system. One additional aspect of a restitutionary rights approach is perhaps the most difficult to accept as a result of our somewhat schizophrenic attitude toward crime. On the one
hand we recognize that crime is perpetrated against specific, identifiable victims hilt at the same time a certain holist conception of society leads i s to believe that, in some sense, society is the real victim. By focusing on
crime in terms of individual rights, the preceding analysis has at least implicitly been highly critical of the latter conception of crime. However, it is still necessary to consider what. rights, if any, third parties would
possess once a crime has been committed. This question must be strictly distinguished from the important, but far different, question of what interests third parties might have when a crime, committed. Members of the
community are interested in crime in a number of ways: there may be fear that similar acts will be committed against them in the future; there may be economic consequences to the community of criminal activity; acid the rest of the
community may share a common moral outrage at the criminal act itself. Do these and other potential interests give third parties rights in the same sense that, victims and accused or convict
ed offenders have rights? Under the restitutionary theory outlined above, a criminal act does not vest any right in third parties. A specific action is defined as criminal within the context of this theory only if it violates the
right of one or more identifiable individuals to person and property. These individuals are the victims of the criminal act are the only the victims, by virtue of the past infringement of their rights, acquire the right to demand
restitution from the criminal. This is not to deny that criminal acts frequently have harmful effects upon other individuals beside the actual victims. An act that is denied that a
harmful "affect," absent a specific infringement of rights, may vest rights in a third party. While an elaboration of the; principle, which would require a detailed analysis of theconcept of rights, is beyond the scope of
this study, we contend that a violation of rights cannot occur unless one individual has used force, the threat of force, or fraud against another individual.
As indicated at the outset, of this
discussion on individual rights, a fundamental distinction must be made between moral rights and moral goals. While the two concepts are analytically distinct, they are also integrally related to each other in that moral rights
provide a framework within which one may properly pursue a variety of moral goals. To recall Nozick's illuminating phrase, rights constitute "moral side-constraints" that define the limits of permissible action in
striving to attain moral goals. Another useful way of developing the distinction between moral rights and moral goals would be to indicate its similarity with the distinction that Lon Fuller has made in his The Morality of Law between the morality of duty and the morality of aspiration. Thus far, our discussion has focused on an elaboration of the concept of moral rights, and it is now appropriate to shift our attention back to the question of moral goals. It should now be clear that any
evaluation of the various goals that have been proposed for the criminal justice system must begin with an analysis of their compatibility with the moral rights framework that, has been elaborated above. If we accept the existence
of moral rights, we must reject any goals that would require us to violate the constraints implied by such rights. Much of the confusion characterizing the current debate over proper goals for the criminal justice system stems from
the failure to recognize that such a debate cannot occur in a moral vacuum. Without a moral rights framework that provides an objective standard for evaluating each goal, we are left to wander aimlessly from one goal to another. A
moral rights framework provides the necessary context within which a utilitarian calculus may properly be employed to select among competing goals.
In discussing those various goals that have been proposed four the criminal justice system, it soon becomes apparent that virtually every one of these goals may be subsumed under the
broad rubric of crime prevention. Thus, such diverse goals as deterrence, rehabilitation, and incapacitation in fact represent subsidiary ends that are all directed toward the larger goal of preventing crime. While the goal of
crime prevention is certainly a legitimate and important one for any social system, it is not, strictly speaking, an appropriate goal for the criminal justice system.
Once a certain action has occurred, it should be the function of the criminal justice system to determine whether that action has violated the rights of individuals
and, if it has, to take the steps necessary to rectify the imbalance created by the criminal act. The criminal justice system, then, is designed to address only one dimension of the crime problem: justice. In performing this
function, the criminal justice system necessarily adopts an exclusively past-oriented approach, focusing on past criminal actions. This is not to say that
crime prevention is unimportant or even that an efficient administration of criminal justice will not contribute to the attainment of this goal. However, it does imply that the prevention of crime or any such goal should constitute
merely a byproduct of the primary function of the system: the administration of justice. As Professor Weinreb has noted in his book Denial of Justice:
The function of criminal process is to determine criminal guilt with a view toward imposing a penalty. If it provides a civic education for some people (which is doubtful) or a public entertainment, so much the better; but these are not its functions, any more than it is the function of the judicial system to provide comfortable berths for the friends of successful politicians, as it does. Nor is it the function of the criminal process itself to punish or rehabilitate criminals or deter the commission of crime, although there too, it may be, so much if it does. Criminal process is not a means to redistribute income, or encourage patriotism, or promote individual expression, except incidentally.
11 To the extent, that this primary function of the administration of justice is performed effectively, it is reasonable to
assume that this in itself will contribute in several ways; to the harder goal of crime prevention. For example, as Randy Barnett points out, to the extent that the certainty of a sanction for criminal behavior will deter such
behavior, the administration of an effective criminal justice system will have a deterrent effect on criminal behavior. In Chapter 15, "Restitution as an Integrative Punishment.," Burt always has also cited a growing body
of evidence suggesting that a restitutionary approach to criminal behavior has at least, a potentially significant reconciliative effect on the offender. However, these positive
effects arise as a consequence of the administration of criminal justice, and they are not properly goals to which the administration of justice may he subordinated. To do so would be to suggest that certain violations Of
individual rights should remain unrectified in the interest of some goal, but the only person who may properly make such a choice is the victim of the criminal action. If the victim insists upon the rectification of the previous
rights violation, then it, is the responsibility of a criminal justice system to assure that such a rectification occurs. In such a situation, justice requires the rectification of the past rights violation, and the subordination
of this task to any other goal, would itself constitute an injustice and would contradict the very definition of a criminal justice system. It should be repeated, however, that this insistence on the proper role of a criminal
justice system qua criminal justice system is not meant to deny or minimize the desirability of pursuing outside the framework of criminal justice pertain goals designed to prevent. crime. This
point is especially relevant to a consideration of widely quoted criticisms of the administration of the criminal justice system
However, this perspective neglects the crucial distinction between rights and goals. It is true that crime prevention has traditionally been a goal but, as a goal, it is
completely irrelevant to the question of criminal justice. The point has already been made that, in its focus on prior rights violations, justice is uniquely and exclusively backward-looking goals as prevention of future
crime. There is a broad spectrum of activities that may contribute to a goal of crime prevention, ranging from installing a burglar alarm to the hiring of private guards, but are entirely outside the scope of criminal justice.
To the extent that Dershowitz suggests that it may be proper to infringe individual rights if such infringements would contribute to the goal of crime prevention, he is
ignoring the fact that rights, by their very nature, may never be "properly" infringed upon in pursuit of any goal. They are constraints upon goal-oriented policies and are not simply additional goals that may be balanced
and subordinated in a utilitarian calculus. In Chapter 16, Randy Barnett has demonstrated that this strict distinction between rights and goals in the area of criminal justice would in fact entail a fundamental reevaluation of the
law of criminal attempt. Thus, unless it could he demonstrated that a so-called "attempt" was in fact a past action that had violated another individual's rights, it would be impermissible for the criminal
justice system to impose any sanctions against, the accused individual. This would be true even if it could be demonstrated that the accused individual had the intent of committing an aggressive act that such an intention
made it probable that the individual would seek to commit the act again. While sanctions could not be imposed by the criminal justice ,system upon the accused individual,
this does not mean that other individuals in the community could not take certain actions against the accused individual, provided that these act ions do not, infringe upon that individual's rights. For example, individuals
in the community might seek to isolate the accused individual by refusing to associate or trade with him. Such forms of voluntary action can often prove very effective in enforcing the norms of a community and in discouraging
the accused individual from pursuing his attempted course of action. A similar form of analysis would he necessary; at any other point in the criminal justice system where it might
In discussing the broad goal of crime, prevention, it becomes particularly
important to seek a better understanding of the origins of criminal behavior. Perhaps more than any other area of the crime problem, this subject has been one of enormous
controversy in which passion and prejudice have often prevailed over reasoned analysis. This is especially troubling since it is very difficult to conceive of the formulation of policy goals in this area without. a prior agreement
as to the major factors responsible for the behavior that these policy goals will seek to prevent. In this regard, the path-breaking research by Dr. Stanton Samenow and the late
Dr. Samuel Yochelson at. St. Elizabeth's Hospital in Washington, D.C., deserves special attention. In Chapter 4, Samenow summarizes the results of their fourteen year project. In the course of their research, they eventually found
themselves unable to accept many of the conventional assumptions regarding the origins of criminal behavior, assumptions that they also shared when they began the project. For example, they came to the unexpected conclusion that
psychological disorders did not adequately account for criminal behavior, thus confirming many of the theoretical insights of Thomas Szasz. They also could not identify any environmental factors, such as lack of educational
opportunities or poverty, that would explain why certain individuals became habitual criminals. After intensive interviewing of "habitual"
or "career" criminals, Samenow and Yochelson concluded that these individuals all shared certain distinctive thinking patterns and that these thinking patterns were, not inherited but, instead, represented a series of
conscious choices made by each individual, usually at a relatively early stage in life. One immediate implication of their observation is that the conventional goal of "rehabilitation" has been fundamentally misguided. As
Samenow indicates, the very term "rehabilitation" suggests restoration to a previously existing condition, whereas his research questions whether the "career" criminal has ever developed the thinking patterns
necessary to live responsibly. Based on their initial research, Samenow and Yochelson sought to develop a treatment program that would systematically change the distinctive thinking patterns of the career criminal and, through a
process of "habilitation," instill new thinking patterns that. would enable the individual to live and act responsibly in society.
Samenow demonstrates considerable sensitivity to the moral and policy implications of his research, and his study explores some of these issues. In particular, he questions the
traditional goals of rehabilitation and deterrence and he suggests that criminal sanctions may have the least deterrent, effect on precisely those extreme criminals that he has studied. Based on his research, Samenow
also questions whether a restitutionary approach criminal justice would have any significant rehabilitative effect on the career criminal. Samenow's work is extremely important, for
anyone concerned with developing appropriate goals for dealing with the problems of crime. The challenge will be to articulate goals consistent with his analysis that can be pursued without violating the constraints imposed by a
framework of moral rights. For example, Samenow's research suggests the need to develop new forms or testing and counseling to identify and treat individuals who appear to exhibit the thinking patterns characteristic of criminal
behavior. However, unless such programs are formulated and administered in a manner that is entirely consistent with individual rights, it is not difficult to imagine the enormous potential for abuse that such programs might have.
Such programs could not be tolerated unless they relied exclusively on the voluntary and informed participation of the subjects. Potential models do exist for such programs-Alcoholic, Anonymous and Synanon are two particularly
prominent examples. Edward Banfield's insights on the relevance of time horizon to criminal behavior, a subject that he discusses in Chapter 5,
"Present Orientedness and Crime," appear to correspond closely with the results of Samenow's empirical research. Panfield argues that individual's psychological orientation toward the future underlies distinctive
patternings of attitudes and that certain individuals exhibit a significantly greater degree of present-orientedness than others. While cautioning that a high degree of present-orientedness in certain individuals will not
necessarily result in criminal behavior, Banfield does suggest that such individuals are more likely to commit crime and that they will be less deterred by the threat of punishment..
Gerald O'Driscoll's paper (Chapter 6) on Banfield's concept of time horizon underscores the extent to which this concept is compatible with the theory of time preference
developed by the economist, Ludwig von Mises. O'Driscoll also contends that Banfield's theories are difficult to reconcile with the assumption; underlying much of the existing literature on the economies of crime. A common
characteristic of this literature, is to assume that every individual's orientation towards the future is identical and therefore that each will be equally affected by a given structure of incentives and penalties. On the other
hated, if Banfield is correct, that individuals differ in their orientation toward the future, then one would anticipate that the same future of incentives and penalties would have a differential effect on each person. Such a
conclusion would be particularly disturbing for anyone favoring a utilitarian approach to criminal sanctions, since it suggests the impossibility of measuring the differential deterrent effect of a particular sanction.
O'Driscoll observes that this may be one reason for the enormous difficulties already encountered in the statistical measurement of the impact of various approaches to punishment. The final portion of O'Driscoll's study argues that
a strictly utilitarian approach to policy formation would be inadequate. While Banfield concentrates almost exclusively on the role of various cultures in reinforcing or
weakening the natural disposition of the individual to prefer present to future rewards, his analysis tends to overlook the extent to which social institutions may also influence "present-orientedness." Since institutions are
far more susceptible to modification than cultures, more systematic research into the relationship between social institutions and individual "time horizons" might suggest institutional reforms that could indirectly
contribute to the goal of crime prevention. Mario Rizzo's paper on "Time Preference, Situational Determinations and Crime (Chapter 7) critically evaluates the entire
concept of present-orientedness as a hypothesis for explaining why some individuals commit crimes while others do not. Rizzo also questions whether, in certain circumstances, present-orientedness might be considered a rational,
rather than defective, attitude. In pursuing this analysis, he focuses attention on the role of political institutions as a source of present-oriented behavior within the social system.
As already mentioned, Samenow's study questions whether a restitutionary approach to criminal justice would have any positive rehabilitative impact on the hardcore criminal.
While there is still insufficient evidence to resolve this question conclusively, the research cited in Burt Galaway's paper on "Restitution as an Integrative Punishment" (Chapter 15) provides reason to believe that a
restitutionary system may perform a positive habilitative role for individuals who are not hardcore criminals. By requiring the offender to undertake positive actions designed to rectify the imbalance that has been created between
the offender and the victim, restitutionary sanctions may help to instill a sense of responsability and to reduce the offender's sense of alienation from the rest of society. Since restitutionary sanctions have thus far only been
applied on a limited scale within the criminal justice system, the likelihood of such positive effects must remain largely speculative at this point. However, the experimental evidence that is available suggests that, far
from requiring the abandonment of habilitation of criminal offenders, a restitutionary system of criminal justice may actually contribute to the attainment of this elusive goal.
Leonard Liggio's paper on "The Transportation of Criminals" (Chapter 12) provides an illuminating historical analysis of one criminal sanction- the transportation
of criminal offenders to distant penal colonies- that was primarily designed to incapacitate the criminal offender by isolating him or her from the rest of society. As Liggio notes, thw idespread use of prisons in England to
achieve the same goal occurred at a much later date as the result of the influence of Bentham's utilitarian political and economic theories. Liggio is critical of the shift from penal colonies to prisons, noting that it imposed a
significant additional tax burden upon the population and that it was prompted by a futhedesire to rehabilitate the criminal from the rest of society. In his conclusion, Liggio proposes that we return to the original goal of
isolating the criminal. As with any other goal, the isolation of criminal offenders is a legitimate approach to crime prevention provided that it is undertaken in a manner that does not
violate individual rights. In this regard, Liggio indicates that, under Anglo Saxon common law in England, neighbors formed voluntary personal associations at the local level and expelled from their associations anyone found guilty
of a felony crime. Thus, through individual private action involving the right to trade and associate with whomever they chose, neighbors developed highly effective procedures for isolating habitual offenders from their midst.
The papers of John Hospers and Walter Kaufman in his collection serve to focus attention on certain issues raised by some retributionist theories of justice. One of the
great difficulties in discussing a retributionist theory of justice is that there are in fact many variants of the theory, and it becomes essential to identify specifically which one is being discussed. Many traditional
formulations of this theory, such as the one expounded by Immanuel Kant, appear to justify the deliberate infliction of pain on criminal offenders, not so much because of specific criminal action that the offender
committed, but because the offender, by his or he demonstration of reprehensible character , deserved such punishment. The criminal act tends to be considered only as on overt indication of the lack of moral worth of the individual
committing the act. This approach to criminal legal theory is exemplified by Richard Epstein's attempt to rationalize the distinction between tort and criminal law. As he correctly indicates, the historical distinction is based on
just such a moral judgment. Kaufman's paper is critical of all variants of retributionist theories, but he appears especially
critical of the variant outlined above. In contrast, John Hospers' effort to defend retributionist theories of justice involves the presentation of a "deserts theory" of justice that, shares many similarities
with the "Kantian" view. For this reason, it, is essential to distinguish this variation of retributionist, theory from the theory elf criminal justice developed earlier in this chapter.
The fundamental weakness of this type of retributionist theory does not, rest on all explicitly developed theory of rights. This, in turn, has a
number of unfortunate consequences. By focusing attention too heavily on the moral worth of the criminal offender, tire theory is led to reject, the imposition of sanctions upon individuals who had violated the right of others hut
who, for a variety of reasons, might not, be considered deserving of sanctions. Such a retributive approach is inconsistent with the concept of justice that requires the rectification of all least, violations of rights. Moreover,
by departing front a theory of criminal justice that is based upon a relationship between two parties, such ;in approach ignores the rights of the victim entirely and the victim is reduced to the relatively marginal role or
witness. For those reason, by viewing punishment as essentially related only to the moral worth of a given defendant, this approach approach would encourage the uninvited participation of third parties. By denying the, victim's
legitimate role in the criminal justice process, there remains do reason why the evaluation of an individual's moral worth and the levying of punishments could not be performed by anyone.
The problems arising from this failure to ground a retributionist theory of criminal justice firmly on a prior explicit theory of individual rights con firms
the importance of the rights-goals framework that this paper described. To summarize the argument this far, we have identified two analytically distinct. questions that arise in any systematic consideration of the problem of
crime: the justice question and the utilitarian question. We have contended that the general failure to distinguish between the issues raised by each question has been responsible for much of the confusion that characterizes most
contemporary discussions of crime. The first question is the one with which the institutions of the criminal justice, system should be exclusively concerned. The issues
raised by the justice question are: the definition of individual rights, the, identification of categories of acts that constitute violations of those rights, and the rectification of imbalances created by actions that
have violated the rights of others. To analyze each of these issues in detail that they deserve would require a separate book; our purpose at this point is merely to emphasize that this type of analysis constitutes the
foundation of a restitutive theory of justice. In contrast, the utilitarian question has much broader focus and concerns the issues of how we can
maximize various goals(such as deterrence, habilitation, and incapacitation) that seek to prevent crime or to achieve other socially desirable objectives while remaining within the constraints imposed by the framework of
moral rights. Properly understood, the latter question can only be answered by first addressing the justice question. The current confusion plaguing the criminal justice system arises typically on one of two ways:
either one assumes that the second question can be answered without explicitly addressing the first question, or one assumes that the two questions are in fact indistringuishable. The search for a new paradigm must begin with the
realization that these two questions are in fact distinct and that, without a firm grounding, in a theory of rights, the search for goals in dealing with crime will ultimately prove fruitless.
The preceding discussion seeks to provide a very brief introduction to the elements of a new theory of criminal justice, one combining the strengths of varying traditional theories
while, hopefully, resolving many of the contemporary dilemmas. Such a theory might be called a "restitutionary theory of justice." There are two main aspects of this theory: first, it attempts to define the proper scope
to any criminal justice system qua
justice system, and second it identifies the principles by which a just system should operate. In other words, this theory focuses on the questions that, have traditionally occupied the attention of philosophers: it defines the boundaries of justice and it specifics within those boundaries wherein justice resides.
Under a restitutionary theorv of justice, the dominant concern of any criminal proceeding should be the fact that some person or persons have violated the rights, properly
defined, of another. The settlement of this dispute using principles of justice may not achieve any independent social goals, but it will vindicate the rights of the aggrieved party and thereby vindicate the rights of all persons.
For too long we have lost sight of this ultimate purpose of criminal law, and we are now beginning to recognize the consequences. If the rights of one of us is not been protected, if the rectification of any one of our rights is
ignored for the sake of any "larger" purpose, then the very notion of individual rights itself has been demeaned and all of our rights diminished. In short, there can be no longer or more important goal than the rectification of
each individual wrong. This goal has been entrusted exclusively to the criminal justice system, and it must therefore take precedence over any other competing goal. One
corollary of this analysis is that the traditional objectives of our present, institutions have far exceeded the proper function of any criminal justice system. Because of this, not only have additional goals not been
attained, but, their pursuit has impeded the attainment of the only proper concern of a criminal justice system: justice. Having stipulated what to some must seem
obvious-that, a criminal justice system should confine its activities to discovering and enforcing justice-it is necessary to determine with greater precision what constitutes restitutionary justice. While detailed analysis of this
concept would lake us far beyond the confines of this work, certain basic principles have been identified in the preceding discussion and should be briefly noted here. These principles of justice are universal and apply with equal
force to in infinite, variety of specific fact, situations.
A restitutionary theory of justice begins with the principle that there are two parties to any
criminal action. They are not , as traditionally conceived, the state and the defendant(s), but are, rather, the victim and the defendant. The state, if it is to play any role, would he restricted to mediating the dispute and
enforcing the judgment. This statement of the principle should not minimize the profound difficulties that may be encountered in defining with greater
precision whether someone may be considered a "victim" of certain actions. These difficulties will only be surmounted if we are first act to elaborate a theory of, rights that defines the specific rights possessed by all
individuals; and the circumstances under which the rights would he considers I violated. Such a theory would be indispensable, for example, in valuating the claim that certain so-called "victimless crimes" do in fact
involve victims and therefore are an appropriate concern of the criminal justice system.
The criminal act. creates an imbalance
between the parties that requires rectification. This imbalance results from the fact that. the criminal leas infringed upon, and thereby denied, the rights of the victim. The nature of this imbalance is most clearly revealed in
the example of stolen property that must be returned to the original owner. In that case, what has been violated is the victims right to his property. This circumstance differs only in visibility, and not in principle, from any
violation of the victim's rights. Because this imbalance arises from a wrongful imposition on the victim, one variant of the theory of restitutionary justice would hold that this wrongful imposition cannot be rectified by simply
inflicting unpleasantnerss- punishment- on the offender. Rather, the criminal act creates a nexus between the offender and his victim that will be removed only when the offender has performed some constructive act of reparation
(either a monetary payment or performance of services) or the victim or the victim's heirs. This act of reparation should he designed to
put the victim or the victim's heirs in the position that they would have been in if the original criminal act had never occurred. While it is a truism that nothing can ever fully compensate for the suffering, or even death, of the
victim, this unfortunate fact should not. he used as justification for passivity: there is still an obligation to try as host we can to rectify the unbalance that the criminal acct has created.
While we feel more comfortable with a theory of constructive, reparative sanctions, as indicated earlier, others most notably Murray N. Rothbard in
Chapter 11, favor another variant of restitutive justice that more nearly approximates the traditional concept of lex talinis. The differences betwecn these two variants of restitutive justice cannot be ignored, but we
believe that there are far greater similarities which justify their classification as variants of a single paradigm. Both variants of restitutionary theory
hold that an objectively, if occasionally somewhat, imprecise. proportioning of a sanction car be achieved through an examination of the nature and extant of the criminal act. Perhaps the most difficult challenge confronting the
restitutive approach is, as Walter Kaufmann points out, the determination of what constitutes a "just" sanction. The difficulties of such an undertaking cannot be denied, but the promise of a restitutive paradigm is that,
unlike current approaches or even a Kantian form of retribution theory, it provides principles to aid determination. Once a determination is made, it is the
responsibility of the enforcing agency to protect the rights of the criminal as well as the victim by setting an upper limit on the severity of the sanction that may be imposed. This upper limit would be determined on
the basis of the severity of the offense. Extraneous factors should not influence this finding, since what is being judged is not the moral worth or depravity of either the victim or the defendant but the extent to which the
defendant's actions created an imbalance between the defendant and the victim.
Since it is the victim whose rights have been violated, it is up to the victim to insist upon the punishment of the
criminal or to pardon. The only person who may forgive air offense is the person who suffered the offense. Possible motives influencing the victim's decision may include preventive considerations, prospects for rehabilitation,
blind hatred, or compassion and charity. We may seek to educate victims as to goals that any of us feel are appropriate for him to consider, but we cannot remove from the victim's hands the ultimate decision and responsibility for
the sanction. Since third parties lack any standing in a restitutionary theory of justice, the decision to punish the convicted offender cannot be affected by any broader societal
concerns except to the extent that. these concerns are shared by the victim and influence his or her decision. More broadly, however, an important societal concern is enforced by a restitutionary system of justice since, in
handling each instance of criminal behavior, such a system not only reaffirms the victim's rights but assures everyone else in society that their rights will be similarly vindicated if ever transgressed.
While some have expressed the concern that a criminal proceeding could place an undue burden on the victim by assigning him or her such a prominent role in sentencing, early pilot
programs suggest that this role could be structured in a manner that will increase, rather than diminish, the victim's security and well-being. Nevertheless, this concern is a real one and the form of a restitutive system will have
to be crafted with great care to avoid any unnecessary burden on the victim. Such a consideration may lead to basic reforms in the adversary system.
The theory of restitutionary
justice is based on the recognition that all individuals possess rights by virtue of their humanity. For this reason, the rights of the victim must be rigorously enforced, but we should not lose sight of the fact that those accused
of crime are individuals as well in similarly possess certain rights that, may not be violated. If the defendant is, in fact, innocent, then that individual possesses the same rights as any other person. Even if the defendant is in
fact guilty, then the individual loses his or her rights only to the extent that his or her actions transgressed against the rights of others and the individual retains all other rights.
Any attempt to structure a criminal proceeding must cope with the fact that our knowledge of the true circumstances of any past criminal act will necessarily be
imperfect and yet realize that our ability to do justice in each case will depend on our success in discovering the truth. While we must be prepared to act on the basis of erroneous information, we should always recall that
the rights of each party are to be determined by the facts themselves and not by the fact, that certain procedures were observed in reaching a particular outcome. Thus, a particular criminal proceeding may result in the injustice
of convicting an innocent person on the basis of imperfect information, and the tact that certain procedures were observed cannot eliminate the fact that, an injustice has occurred. To hold otherwise would seriously undermine our
quest for the procedures and institutions that will be most effective in performing; the truth seeking function. This once again underscores the fact that the questions of criminal process are intimately related to the substantive
concept of justice and that it is necessary to consider this latter question before one can begin to craft the procedures and institutions of a criminal justice system.
It is incumbent on any neutral third party mediating a dispute to establish a standard of proof before it acts to enforce the claim of a victim against a particular accused individual.
Only in this way will the third party be able to minimize its potential liability should the accused individual later charge that the third party wrongfully infringed his or her rights on the basis of imperfect information. By
explicitly adopting a standard of proof, the third party provides an objective standard by which any outsider may independently judge the correctness of the decision.
A restitutionary theory of justice would require a fundamental reevaluation of the standard of proof presently employed in criminal proceedings by the state. Two
alternatives are consistent with a restitutionary theory of justice that recognizes two parties to a criminal action who each possess certain rights. Preponderance of the Evidence Standard. If the prosecution can prove by
a preponderance of the evidence that the defendant is guilty, then the defendant would be judged to have committed the crime and he would be required to attempt to restore the victim. If, however, the prosecution fails to meet its
burden, then the defendant would he judged to be innocent and would therefore he entitled to compensation by the charging authority for the injustice of being forced to participate in the criminal process. The injury may have
included physical confinement, loss of income, assorted expenses, and other less tangible injury as well. In this procedure it would be easier to prove a person guilty than in the current. system, but this would be offset by the
more serious consequence to the charging authorities in the event, that they fail to prove their case. Reasonable Doubt Standard.
An alternative method would raise the requisite standard of proof for both sides. In order to be found guilty of the crime, the defendant would have to be proved guilty beyond a reasonable doubt. By the same token, before the defendant could be compensated for being forced to participate ill the criminal process, his or her innocence would have to be established beyond a reasonable doubt as well. If neither party could prove its case, then the resultant losses would remain with the parties originally sustaining them.
Any
theory that, involves a set of clear, concise principles will inevitably be accused of "oversimplification." Although this essay has only attempted to outline the restitutionary view in a highly schematic fashion, even a
more detailed elaboration of this position would not escape such a criticism. It is an unfortunate fact that any statement of absolute moral principles today is regarded as inherently suspect. The irony is that the dominant
utilitarian and empiricist attitudes in our society have produced a legal system that glorifies complexity and is captivated by the verbal sleight, of hand. In fact, it is the present criminal process that
"overcomplicates" the crime problem by being theoretically unable to choose among conflicting goals and rationales to arrive at a swift, predictable, and just result. While some may still wish to defend the current system
by arguing that justice requires careful and slow deliberation, there is a growing awareness that, rather than serving the ends of justice, the delay and confusion pervading the system only result in the classic case of justice
denied. We all pay the price for the unprincipled (or, in some cases, false-principled) nature of the current system. To defend a principled approach to justice,
however, is not to minimize the difficulties involved in its application. The tenets of resttitutionary justice may be articulated, understood, and internalized, but still present major problems as one seeks to translate these
principles into a viable system of criminal justice. Examples of these problems include the attempt to proportion punishment to fit the crime and the obstacles that will be encountered in seeking to administer efficiently a system
of restitutionary payments. Hard cases cannot be eliminated, but the recognition of this fact is not a condemnation of restitution. The proper function
of any theory of justice is to discern the complexities inherent in any legal process and to provide the criteria for solving them. A restitutionary paradigm of justice performs this function by confronting the realities of
the criminal act, recognizing the respective rights of the parties, and, thereby, pointing the way to a settlement of the dispute that may be ameliorative and constructive, but that is, above all else, just.