Let the Punishment Fit the Crime

Let the Punishment Fit the Crime
When a thief in Chicago stole a motorcycle, the press reported, the victim, who knew the thief, was not particularly interested in seeing the thief punished, just in getting his motorcycle back. By the time the police caught the thief, he had sold the motorcycle. He received a suspended sentence. The victim was told he would have to sue the thief if he wanted his money back.
What is wrong with his story? It does not satisfy our sense of justice because justice means that everyone gets what he or she deserves. Justice should mean helping victims as well as punishing offenders. This story and our criminal justice system ignore the problem of restoring fairness for victim as a principle of justice.
We set two primary foals for our criminal penalties. We want them to deter crime and we want them to rehabilitate criminals. In theory, these two goals should go together, since they amount to saying that we want to keep crime from happening in the first place, through deterrence, and to keep crime from happening again, through rehabilitation.
In practice, these two goals seem incompatible, since the harsh penalties that might work as deterrents offer little hope for rehabilitation, while the supportive treatments that might work as rehabilitation seem inadequate as deterrents.
Curiously, however, neither deterring crime nor rehabilitating offenders is a principle of justice. Our sense of justice requires that penalties be proportionate to their crimes.
Suppose we took restoring fairness as the first principle of our criminal justice system, instead of either deterrence or rehabilitation. What would such a system look like?
Simply put, offenders would be given sentences whose purpose, in the end, was to restore both the loss that the victims had suffered and the loss that society suffered through its investment in preventing, detecting, and punishing crimes. Where possible, this could involve labour directly related to recovering property, repairing damage, or making streets safer. More generally, it might involve contributing earnings from specified tasks to a general fund whose purpose was to compensate victims.
In informal systems, where victims and offenders are known to one another, restoring fairness is the common penalty that satisfies all concerned and preserves the social bond. It is typical of penalties that are meted out in healthy families.
Restitution as a principle of justice appeals to both liberals and conservatives. Liberals like the idea that the penalty involves something more meaningful than just going to prison. Conservatives like the idea that the penalty involves holding offenders responsible for their actions and making them pay for their crimes. It appeals to people on moral and emotional grounds. It appeals to people on practical grounds, in that it offers some hope of helping both the victims and the offenders, as well as society.
Restitution can work in the service of both deterrence and rehabilitation. The cost of making restitution should substantially outweigh the potential gain of the crime, since both the victim’s pain and suffering and society’s costs of enforcement may be included. At the same time, the act of making restitution should serve to restore not only the offender’s sense of himself or herself as a worthwhile member of society, bur, even more crucial, society’s sense of the offender as will, in a way that punishment alone could never do. The penalty can and should involve real cost for the offender, but the novel and critical feature is that it should also involve creating something of value in both society’s eyes and the offender’s own eyes.
The idea of compensating victims can be distinguished from the idea of restitution by offenders. There are many crimes with victims needing help where offenders are unknown. Even if an offender is caught and convicted, restitution at best takes time, while the victim’s needs are immediate. The solution is to use state funds to compensate victims, while offenders either replenish these funds or provide other services.
To be successful, the principle of restitution must be implemented in a way that is not seen as exploitation of offenders in the service of existing class interests. Most offenders are poor, and many victims are rich. It is doubtful that making restitution to a corporation such as an insurance company will have much meaning for people who do not see the corporation as a victim in the first place. It is certain that chain gangs and corrective labour camps do not supply work form which either victims or offenders derive any sense of meaningful restitution. They are merely punishment and should be plainly so named. Restitution that is psychologically valuable will have visible and tangible effects that can be seen by victims, offenders, and society.
Although not widely known, laws for victim compensation have been enacted in a number of countries (including England and New Zealand) and a growing number of stats (including New York and California), while experimental programs for offender restitution are under way in Georgia, Iowa, and Minnesota. Preliminary results are encouraging, but they represent only a beginning. Much remains to be learned about tailoring sentences to both society’s needs and offenders’ capacities, and we have yet to work out how to allow prisoners to work without threatening jobs for anyone outside prison. These are reasonable tasks for social science and social policy. It is unreasonable to leave the field of criminal justice to the bankrupt debate between deterrence and rehabilitation.