Could restitution play a role in criminal justice reform?
It is widely acknowledged that the United States has a problem with mass incarceration. According to the Bureau of Justice Statistics, the nation has more than 1.5 million inmates in both state and federal prison. The number places America as one of the most incarcerated nations in the world, both by numbers of inmates and per capita.
Many state governments, along with the federal government, are looking at ways to reduce the prison population. They largely have focused on low-hanging fruit, such as nonviolent drug offenses. The federal government has decreased prison sentences for some drug offenses and even made some of those retroactive, releasing some inmates early. Some states even have decided to decriminalize or legalize marijuana. But on the state level, drug possession is only 3.6 percent of the prison population.
A possible avenue to target for states looking to reduce their prison populations is changes to punishments for property crimes, such as burglary, fraud and theft. Inmates convicted of property crimes make up 19.3 percent of the prison population. Should states, for example, look at using restitution, in combination with probation, as an alternative to incarceration?
All 50 states already offer restitution. Restitution is different from a civil judgment, in that it is awarded when the offender is convicted in their criminal trial. Some states offer compensation to victims awarded out of a state compensation program.
The concept dates back to biblical times. Indeed, Exodus 22:3 seems to mandate restitution. Those who couldn’t pay were sold into slavery. The Roman Empire imposed restitution on thieves, ordering them to pay several times the value of the stolen item. While many cultures punished theft by corporal punishment, public humiliation or even death, it only began to be punished by incarceration in the 19th century in Britain and the United States.
Restitution is defined by the National Center for Victims of Crime as “payment by the offender to the victim for the harm caused by the offender’s wrongful acts.” The organization also has a list of out-of-pocket expenses that could be covered by restitution orders:
- Medical expenses
- Therapy costs
- Prescription charges
- Counseling costs
- Lost wages
- Expenses related to participating in the criminal justice process (such as travel costs, child care expenses, etc.)
- Lost or damaged property
- Insurance deductibles
- Crime-scene cleanup, or any other expense that resulted directly from the crime
It’s important to note that pain-and-suffering cannot be awarded through restitution because it is not something that can be quantified with a bill or a receipt.
Is restitution a viable alternative to incarceration in the 21st century? It could be implemented for property crimes that did not result in violence and for first-time offenders. The way it would work is that a value could be agreed on that the offender would have to pay. If the offender could not pay immediately, a repayment plan would be established with interest charges. The state would tack on probation for however long as it takes to pay the restitution or it could be an additional sentence for those offenders who pay immediately. This would provide closure for the victims and serve as a deterrent to thieves and fraudsters who know they would have to pay back everything they stole (and a bit more) if they’re caught.
What would the public think about this? A study was published in 2014 by the Journal of Sociology and Social Welfare showed there was strong support for creative restitution for property crimes. Panelists saw it as a way to personalize their cases. A 1980 study saw 61 percent of victims saw financial compensation as the fairest means of punishment. Support can be built if a sound proposal is made.
Restitution is not without its drawbacks. One of them is the difficulty to collect, but some states are working to fix that. It does appear to offer a solution to reduce the numbers of inmates in prison for property crimes.
