Compensation and Punishment

A fifth theory of punishment, restitution, gained significant ground in the twentieth century, and is becoming more and more important in criminal procedure as technology advances and the criminal law becomes more moderate. The theory of restitution, compensation, recompense - however one refers to it - interprets the debt to society the criminal incurs through his offense in a more mercantile sense (perhaps in a more humane sense). In addition to suffering society's retribution, couldn't the criminal's debt to society also be paid through valuable service to the community and the individuals he harmed? The answer is often yes and, as better and more accurate ways of tracking convicted criminals are integrated into the criminal justice system, courts are increasingly turning to this method.

Compensatory Retribution

While criminals who serve active prison sentences do not really have opportunity to recompense the communities and individuals they harmed, the methods of modern criminal justice are rendering active incarceration less necessary, which allows convicted criminals more opportunity to perform compensatory services. More intensive probation, jail time served on weekends, and house arrest (which can be enforced by using an electronic ankle bracelet that alerts police when the arrestee tampers with the bracelet or goes somewhere other than home or work) are some of the methods that allow convicted criminals to perform services or render payments while serving their sentences. Examples of compensatory punishment might be a thief who serves jail time on the weekends but who is allowed to work and live at home during the week on the condition that he pay back the business he stole from, plus damages; or a sexual offender who is placed under house arrest for a year and allowed to go to work on the condition that he pay for psychiatric treatment for his victim.

The Role of Punishment

Compensation has the potential to fit in quite well with the traditional purposes of punishment in the criminal law. Uncompensated labor can be a very unpleasant experience for people who are accustomed to thinking only of themselves, which is often the case in criminal offenders. The burdensome inconvenience of house arrest, weekends in jail, community service and handing away hard-earned paychecks can serve as adequate deterrence in individuals and in general, and has the potential to satisfy the requirements of retribution. Furthermore, while hardened criminals usually require more secure forms of restraint, electronic homing devices and strict probation are usually enough to restrain a majority of criminal offenders from committing further crimes. And, finally, it would seem that the potential for rehabilitation is considerably stronger for criminals who are given the opportunity to experience what it is to work and give back to the people they've injured, and to society as a whole.

The compensatory method of punishment bears some resemblance to damages awarded in civil litigation. But, no matter what similarities exist in punishment, there's still a profound theoretical distinction between crime and torts. A tort is a wrong inflicted by one private citizen against another. It is a personal dispute in which two parties cannot resolve their differences, in which authority to resolve the dispute is handed to a third party, the judiciary branch of the government. A crime is a wrong inflicted by one private citizen against all of society. Even when the victim of a crime is an individual, as is so often the case, it is (in theory) society as a whole that feels the blow and society as a whole that seeks restitution.