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61 J. Crim. L. Criminology & Police Sci. 152 (1970)
Reparation or Restitution by the Criminal Offender to His Victim: Applicability of an Ancient Concept in the Modern Correctional Process

handle is hein.journals/jclc61 and id is 160 raw text is: THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Copyright @ 1970 by Northwestern University School of Law Vol. 81, No. 2 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 In theory victims of crime have for centuries had available to them the civil remedy of a tort action against persons who have wronged them through the commission of crime. In practice, however, this remedy is in most instances of little value. In many cases the offender is unknown; or where he is known, the victim often cannot afford the expense, in terms of money and time, of bringing a law suit against the offender.' In addition, since perpetrators of violent crimes are typically poor or financially destitute,2 a judgment against such offenders would be uncollectible. Moreover, if con- victed and imprisoned, an offender's incarceration merely serves to compound his destitute condition for as a rule inmates of today's prisons are able to earn very little, if any, money during their con- finement8 During the last decade there has developed throughout the world an increased interest in legislation to provide monetary indemnification to * B.A., J.D., LL.M., Assistant and Associate Pro- fessor, Emory University School of Law, 1965-69; Research Associate, Center for Criminal Justice, and S.I.D. Candidate (Harvard). This paper was submitted to Professor Lloyd E. Ohin of the Harvard Law School, for the course on Crime and Society, given in the Fall semester, 1968. The author gratefully acknowledges Professor Ohlin's guidance and encouragement. IWolfgang, Victim Compensation in Crimes of Per- sonal Violence, 50 MINN. L. Rxv. 223 (1965). 2HomaE OFICE,l COMPENSATON FOR VICTIMs OF Cmnes oF VIOLENCE, CMND. No. 1406, at 2 (1961); Geis, State Compensation to Victims of Violent Crime, PRESmENT'S ComMIssIoN ON LAW ENFORC ENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: CRM AND ITS ImPACT--Ax AssEssmrEN 157, 159 (1967); Mueller, Compensation for Victims of Crime: Thought Before Action, 50 MNN. L. REv. 213, 220, n. 25 (1965). 3 It has been estimated, for example, that ninety percent or more of the inmates of the United States penitentiary in Atlanta, the largest of the correctional institutions in the federal system (and one of the better institutions in America from the standpoint of provid- ing wage-earning opportunities to inmates), are indi- gent in the sense that they would not have or be able to raise as much as $300 to retain legal counsel. Inter- view with Mr. Lee Jett, Jr., Chief of Classification and Parole, United States Penitentiary, Atlanta, Georgia, December, 1966. victims of crime, particularly victims of crimes of violence.4 This recent concern for the plight of crime victims is largely attributable to the writings of Margery Fry, an English penal reformer, who set forth her views in a book and a newspaper article published during the 1950's. Miss Fry had originally been interested in the possibility of requiring that reparation be made by the criminal offender to his victim as part of the process of reforming or rehabilitating the offender.' Due to the practical difficulties inherent in such an ap- proach she later became disenchanted with this idea and instead advocated that society should assume this obligation and compensate victims of crime as a matter of social welfare policy.' All of the victim-indemnification plans adopted in recent years in New Zealand,7 Great Britain8 and the United States9 have been designed primarily to provide compensation rather than reparation' or restitution. As used in the following discussion, the term compensation will refer to payment made from state funds to victims of crime. The words reparation and restitution signify payment made by the criminal offender to his victim as indem- nification for the harm or injury caused by the crime, reparation being a broader term which seems to include the concept of restitution.? 4 See generally Compensation to Victims of Crime of Personal Violence: An examination of the Scope of the Problem: A Symposium, 50 MINN. L. REV. 211 (1965). 5 M. FRY, THE ARms OF THE LAW 126 (1951). 6 Fry, Justice for Victims, The Observer (London), July 7, at 8, 1957, col. 2, reprinted in Compensation for Victims of Criminal Violence, 8 J. PuB. L. 191, 192-93 (1959); see also Geis, supra note 2 at 160. See Cameron, Compensation for Victims of Crimes of Violence, The New Zealand Experiment, 12 J. PUB. L. 367 (1963). SHOME OFFICE & ScoTmis HOME OFFICE, Comr- PENSATION FOR VICTIMS OF CRIMEs OF VIOLENCE, CmNoD. No. 2323 (1964). 8 Such plans have been adopted in California, New York, Maryland, Massachusetts, and Hawaii. See e.g. CAL. PEN. CODE §§13600-03 (West 1965); CAL. WELFARE & INsT'NS CODE §11211 (West 1965). 10 According to WEBSTER'S THIRD INTERNATIONAL DICTIONARY 1923, 1936 (Unabridged, 1966) the words reparation and restitution have quite similar meanings. Both mean the act of restoring. Repara- 52

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