Impediments to the Recovery of Restitution by Crime Victims

Article excerpt

Restitution is unique among criminal justice policies by virtue of the widespread support it has attained from many diverse constituencies. Restitution has received such universal praise as a panacea for victims of crime that in recent years a number of American jurisdictions have adopted legislation that creates a presumptive norm that restitution be awarded in appropriate cases. Despite popular support for its increased use and enactment of enabling legislation, restitution continues to be underutilized in actual case dispositions. The authors suggest that the underuse problem will not be cured and the powerful potential that restitution holds as a criminal justice sanction will not be realized until a consensus regarding the definition of restitution is achieved, significant gaps in the technical data about how restitution is effectuated are closed, and practical impediments to awarding and collecting restitution are dissolved. These goals, in turn, cannot be met until policy makers confront and begin to resolve the inherent conflicts posed when a restorative sanction, such as restitution, is pursued in a criminal justice system that is primarily punitive in nature.

INTRODUCTION

Statements on criminal politics, particularly from those with the burden of responsibility, are usually filled with answers. It is questions we need. (Christie, 1978.) (emphasis added)

A decade ago, Nils Christie offered the foregoing admonition in his discussion of the resolution of criminal conflicts through a victim-oriented court in which reparation by the offender would be the "first and foremost consideration" (1978). The themes of restitution and the victim's role in the criminal justice process have since been elevated to an unprecedented level of prominence in the criminal politics of the United States and internationally. Indeed, a virtual industry of programs, associations, advocates, and technical assistance experts has emerged, brimming with answers, "with the skills and experience to help make restitution work in your community." (RESTTA, 1988).

A postulate of the present discussion, however, is that long-term growth and survival of any industry, especially in the desultory market place of criminal justice, are jeopardized to the extent that its research and development operations are allowed to be eclipsed by ideological fervor and the momentum of its promotional, sales and training forces. In the restitutive sanctions business, in particular, despite the extreme confidence with which restitution is being widely promoted, very basic disputes persist about the fundamental nature and effects of product being so aggressively marketed, and the policies and procedures by which its use should be regulated. The aim of the present inquiry is to highlight some of the essential questions underlying those disputes, in response to Christie's challenge, which, in many respects, remains as disconcertingly cogent today as it was a decade ago. The role of restitution into the next decade and beyond may be determined in no small part by the significance that key decisionmakers in the juvenile and adult fields choose to attach to these enduring questions, and the integrity, energy, and resources invested in their efforts to respond.

THE UNIQUELY UNIVERSAL APPEAL OF RESTITUTION

Professional and popular opinion continues to be notoriously divided about the empirical and logical wisdom of almost every facet of criminal justice policy, over the relative emphasis upon retributive vs. utilitarian goals and sanctions (see e.g., Harland & Rosen, 1988), and even over the general scope and nature of the victim's role in the criminal process (McLeod, 1986). In perhaps unique contrast, the idea of requiring offenders to make restitution for the harm attributable to their crimes appears by every available indicator to command an almost universal level of favorable interest. And whether anything else can be said with assurance about developments in the definition and practice of criminal restitution in recent years, support for the concept in the 1980s has continued to find voice among an increasingly diverse and prominent constituency. …