Benjamin Birney Law and Nerdonomics

25Aug/120

Restitution is old. Is it just?

ABSTRACT: Despite the venerable heritage of restitution and its widespread use today, the idea that compensating the victim complements punishing the criminal is vulnerable to theoretical challenge. The punishments of criminal sanction are usually much harsher than the remedies of the civil law. (The remedy for most civil wrongs is money damages, which the prevailing plaintiff may or may not be able to successfully collect. The iconic remedy for a crime is incarceration.) One can justify these harsher punishments on the grounds that a crime, unlike a civil wrong, harms all people, not just a discrete group of victims. Crimes like murder, arson, and robbery are, in theory, wrongs of such a nature that the very act of committing one creates unstable conditions in society that harm everyone. Thus, a criminal punishment must be imposed for a wrong that affects everyone; the punishment is on behalf of the community, and any compensation should naturally flow to the community.

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