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Reparation Or Restitution by the Criminal Offender to His Victim: Applicability of an Ancient Concept in the Modern Correctional Process Bruce R

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Reparation Or Restitution by the Criminal Offender to His Victim: Applicability of an Ancient Concept in the Modern Correctional Process Bruce R Journal of Criminal Law and Criminology Volume 61 | Issue 2 Article 3 1970 Reparation or Restitution by the Criminal Offender to His Victim: Applicability of an Ancient Concept in the Modern Correctional Process Bruce R. Jacob Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Bruce R. Jacob, Reparation or Restitution by the Criminal Offender to His Victim: Applicability of an Ancient Concept in the Modern Correctional Process, 61 J. Crim. L. Criminology & Police Sci. 152 (1970) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Vol. 81, No. 2 Copyright @ 1970 by Northwestern University School of Law Printed in U.S.A. REPARATION OR RESTITUTION BY THE CRIMINAL OFFENDER TO HIS VICTIM: APPLICABILITY OF AN ANCIENT CONCEPT IN THE MODERN CORRECTIONAL PROCESS BRUCE R. JACOB* I. INTRODUCTION victims of crime, particularly victims of crimes of 4 In theory victims of crime have for centuries had violence. This recent concern for the plight of available to them the civil remedy of a tort action crime victims is largely attributable to the writings against persons who have wronged them through of Margery Fry, an English penal reformer, who the commission of crime. In practice, however, set forth her views in a book and a newspaper this remedy is in most instances of little value. article published during the 1950's. Miss Fry had In many cases the offender is unknown; or where originally been interested in the possibility of he is known, the victim often cannot afford the requiring that reparation be made by the criminal expense, in terms of money and time, of bringing offender to his victim as part of the process of a law suit against the offender.' In addition, since reforming or rehabilitating the offender.' Due to perpetrators of violent crimes are typically poor the practical difficulties inherent in such an ap- or financially destitute,2 a judgment against such proach she later became disenchanted with this offenders would be uncollectible. Moreover, if con- idea and instead advocated that society should victed and imprisoned, an offender's incarceration assume this obligation and compensate victims of merely serves to compound his destitute condition crime as a matter of social welfare policy.' All of the victim-indemnification plans adopted in recent for as a rule inmates of today's prisons are able to 7 8 earn very little, if any, money during their con- years in New Zealand, Great Britain and the 9 finement 8 United States have been designed primarily to During the last decade there has developed provide "compensation" rather than "reparation' throughout the world an increased interest in or "restitution". As used in the following discussion, legislation to provide monetary indemnification to the term compensation will refer to payment made * B.A., J.D., LL.M., Assistant and Associate Pro- from state funds to victims of crime. The words fessor, Emory University School of Law, 1965-69; reparation and restitution signify payment made Research Associate, Center for Criminal Justice, and S.I.D. Candidate (Harvard). by the criminal offender to his victim as indem- This paper was submitted to Professor Lloyd E. nification for the harm or injury caused by the Ohin of the Harvard Law School, for the course on Crime and Society, given in the Fall semester, 1968. crime, reparation being a broader term which The author gratefully acknowledges Professor Ohlin's seems to include the concept of restitution.? guidance and encouragement. IWolfgang, Victim Compensation in Crimes of Per- 4 See generally Compensation to Victims of Crime of sonal Violence, 50 MINN.L. Rxv. 223 (1965). Personal Violence: An examination of the Scope of the 2HomaE OFICE,l COMPENSATON FOR VICTIMs OF Problem: A Symposium, 50 MINN. L. REV. 211 (1965). Cmnes oF VIOLENCE, CMND. No. 1406, at 2 (1961); 5 M. FRY, THE ARms OF THE LAW 126 (1951). Geis, State Compensation to Victims of Violent Crime, 6 Fry, Justice for Victims, The Observer (London), PRESmENT'S ComMIssIoN ON LAW ENFORC ENT AND July 7, at 8, 1957, col. 2, reprinted in Compensationfor ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: Victims of Criminal Violence, 8 J. PuB. L. 191, 192-93 CRM AND ITS ImPACT--Ax AssEssmrEN 157, 159 (1959); see also Geis, supra note 2 at 160. (1967); Mueller, Compensation for Victims of Crime: See Cameron, Compensation for Victims of Crimes of Thought Before Action, 50 MNN. L. REv. 213, 220, Violence, The New Zealand Experiment, 12 J. PUB. L. n. 25 (1965). 367 (1963). 3It has been estimated, for example, that ninety SHOME OFFICE & ScoTmis HOME OFFICE, Comr- percent or more of the inmates of the United States PENSATION FOR VICTIMS OF CRIMEs OF VIOLENCE, penitentiary in Atlanta, the largest of the correctional CmNoD. No. 2323 (1964). institutions in the federal system (and one of the better 8 Such plans have been adopted in California, New institutions in America from the standpoint of provid- York, Maryland, Massachusetts, and Hawaii. See e.g. ing wage-earning opportunities to inmates), are "indi- CAL. PEN. CODE §§13600-03 (West 1965); CAL. gent" in the sense that they would not have or be able WELFARE & INsT'NS CODE §11211 (West 1965). to raise as much as $300 to retain legal counsel. Inter- 10According to WEBSTER'S THIRD INTERNATIONAL view with Mr. Lee Jett, Jr., Chief of Classification and DICTIONARY 1923, 1936 (Unabridged, 1966) the words Parole, United States Penitentiary, Atlanta, Georgia, "reparation" and "restitution" have quite similar December, 1966. meanings. Both mean "the act of restoring." "Repara- 52 REPARATION TO VICTIM OF CRIME In this paper existing victim compensation plans Compensation is limited, under the British pro- will be examined along with a discussion of argu- cedure, to cases involving personal injuries result- 18 ments for including the element of reparation in ing from crimes of violence. In making its decision victim indemnification schemes. Also to be con- the board is to consider among other things whether ways in which the earnings or not the victim was partially to blame for his sidered are the possible 1 9 of convicted offenders might be increased so as to own injuries. make practicable the incorporation of the concept Under a 1967 California act's a crime victim, or of reparation in existing victim indemnification a member of his family or a dependent who has legislation to provide financial sustained injury or pecuniary loss as a result of plans or in future 12 assistance to victims of crime. physical injury or death may obtain compensa- tion through an administrative procedure. When HI. RECENTLY-ADOPTED VICTIM an award is made, the state becomes subrogated to COMPENSATION PLANS any right of action accruing to the claimant as a 22 result of the crime for which the award was made. in One of the theories which has been advanced The act also contains the following unique pro- involving support of proposals for legislation vision which applies during the sentencing phase compensation by the state to victims is that the of the offender's trial: state has a duty to protect its citizens from crime and that if it fails to do so it incurs an obligation Upon conviction of a person of a crime of to indemnify those who are victimizedJ' A second violence... resulting in the injury or death of argument is that since the state imprisons offenders another person... the court shall take into con- and thereby renders most of them unable to answer sideration the defendant's economic condition, will cause the family to their victims in terms of tort damages, the state and unless it finds such action of the defendant to be dependent on public welfare, should be responsible to such victims.2 The third may, in addition to any other penalty, order the most widely accepted reason for adoption of and defendant to pay a fine commensurate in amount is that the state should aid compensation schemes with the offense committed. The fine shall be unfortunate victims of crime as a matter of general deposited in the Indemnity Fund in the State welfare policy?' Treasury... and the proceeds in such fund shall The New Zealand Criminal Injuries Compensa- be available for appropriation by the Legislature tion Act became effective on January 1, 19644 to indemnify persons filing claims pursuant to this It established an administrative tribunal which has chapter." power to hold hearings on claims for compensation and make awards. Compensation is limited to A recent New York statute also creates an ad- power to entertain claims personal injuries resulting from certain crimes of ministrative board with for physical injuries.24 violence 5 No compensation is allowed for loss of by victims for compensation involving or damage to property?' The government reserved This act apparently is applicable to claims the to itself the right to collect from the offender after all types of crimes except those arising from 7 On August operation of a motor vehicle in which injury was an award has been made to the victim 25 1, 1964, the British government introduced a non- not intentionally inflicted. The Massachusetts statutory scheme establishing an administrative victim compensation law which became effective board to assess and award compensation to victims. on July 1, 1968,26 limits compensation to crimes amends, iS.
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