Several men assaulted my best friend last week. As I sat in the hospital, waiting to visit him in the trauma unit, I trembled with a conviction that the assailants ought to be locked in a cell forever, or worse. I soon cooled off enough to forge more levelheaded expectations for the criminal justice system. I figured some sort of prolonged retribution – incarceration – fit within the proper scope of justice.
Yet, jail time struck me upon further consideration as insufficient to right the wrong endured by my friend. Retribution composes only one dependent variable in the criminal justice equation. Justice requires another quotient to consummate the proportionate consequences of the crime.
Retribution, alone, ought to be considered merely a supplementary component of a broader jurisprudence grounded in the theory of restitution. The restitution theory of justice views crime categorically as involving two parties: an offender and a victim. By transgressing the rights of another, a criminal act creates an imbalance between the two parties. The offender thereby creates a debt to the victim that must be rectified through financial or other means within proportion to the transgression.
Because the imbalance arises from a wrongful imposition on the victim, simply inflicting unpleasantness – punishment – on the offender cannot rectify this wrongful imposition. The primary duty of the offender ought to be making the victim whole again, not sitting in a cell for years on end. Knowing that his aggressors are behind bars might offer my friend some vengeful recompense, but such bloodlust fails to fill the essential void of the crime itself. The assault created a nexus between both parties of the crime that will be removed only when the offenders perform some constructive act of reparation.
The net sum of tort and criminal law may balance the debt of crime. However, their prevailing divergence tends to obscure the essential function of the victim in the assessment of retribution unnecessarily. Criminal cases are not tried between individuals but between the offender and society as a whole. For example, the adversaries in my friend’s case will be the State of Louisiana, not the victim, against the assailants.
This practice holds illogical implications. Categories of people don’t commit crimes; men are “rapists,” minorities are “murderers.” Categories also can’t be battered or stabbed, only individuals. Methodological precedents of aggregation undermine America’s individualist tenet and have been historically used to justify acts of genocide, internment and oppression. Offenders ought to be punished according to their infringement upon and subsequent restoration of individual rights, not according to their transgressions against a social category.
Moreover, criminal law devoid of restitutionary underpinnings generates social disorder because victims are not “restored,” and therefore become more likely to demand cruel and severe physical punishment. Restitution, on the other hand, possesses two consequences that promote social harmony and maintain social order — it tends to restore the victim and eliminate his desire for violent revenge, and it allows offenders to earn back his rights and place in society.
Restitution vindicates the rights of the aggrieved individual and thereby vindicates the rights of all people. If we ignore the rectification of individual rights for the sake of a “larger” purpose, we effectively demean the notion of individual liberty, diminish all of our rights, and lose sight of the ultimate purpose of criminal law.
We have exclusively trusted the criminal justice system with the duty to rectify each unique rights infringement. Such a duty must take precedence over any competing goal for society. Rectifying crime by individuals and for individuals suppresses tyranny and embodies the spirit of liberty that founded this nation. We need to solidify the restitutionary paradigm into our criminal justice system, and thus enable criminal law to be ameliorative, constructive and, above all else, just.
