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Criminals as Gamblers: A Modified Theory of Pure Restitution*

Published online by Cambridge University Press:  13 April 2010

Mane Hajdin
Mane Hajdin
Affiliation:
McGill University
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Extract

In this article I am going to propose a modification in the theory of pure restitution, in the hope that such modification will eliminate at least some sources of resistance to the theory, while preserving the theory's distinct place among the philosophical approaches to the institution of legal punishment.

Type
Articles
Information
Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 26 , Issue 1 , Spring 1987 , pp. 77 - 86
Copyright
Copyright © Canadian Philosophical Association 1987

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References

1 Barnett, Randy E., “Restitution: A New Paradigm of Criminal Justice”, Barnett, Randy E. and Hagel, John III, eds., Assessing the Criminal (Cambridge, MA: Ballinger Publishing, 1977), 349–383Google Scholar. A shorter version of the same paper was published in Ethics 87 (1977), 279–301.CrossRefGoogle Scholar For criticisms of the theory see: Pilon, Roger, “Criminal Remedies: Restitution, Punishment, or Both?”, Ethics 88 (1978), 348–357;CrossRefGoogle ScholarMiller, Franklin G., “Restitution and Punishment: A Reply to Barnett”, Ethics 88 (1978), 358–360;CrossRefGoogle ScholarKleinberg, Stanley S., “Criminal Justice and Private Enterprise”, Ethics 90 (1980), 270–282;CrossRefGoogle ScholarDagger, Richard, “Restitution, Punishment, and Debts to Society”, in Hudson, Joe and Galaway, Burt, eds., Victims, Offenders, and Alternative Sanctions (Lexington, MA: Lexington Books, D.C. Heath, 1980), 3–13.Google Scholar Barnett has replied to most of the criticisms in “The Justice of Restitution”, The American Journal of Jurisprudence 25 (1980), 117–132,CrossRefGoogle Scholar reprinted in Narveson, Jan, ed., Moral Issues (Toronto: Oxford University Press, 1983), 140–153Google Scholar.

2 Vecchio, Giorgio Del, “The Struggle against Crime”, in Acton, H. B., ed., The Philosophy of Punishment (London: Macmillan, 1969), 197–203.Google Scholar

3 The distinction was taken from Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974), 65, 68.Google Scholar

4 This is in fact a controversial point. It is not clear to what extent Barnett himself would endorse this element of restitution. However in his reply to Pilon (“The Justice of Restitution”, 125, or in Moral Issues, 145–146) Barnett makes the important point that if the criminal's affronting his victim's dignity had any relevance for the criminal sanction, then the appropriate element of the sanction could still be accommodated within the framework of restitution.

5 The theoretical importance of the probability that a criminal will get away with the fruits of his crime has already been realized by economists who discussed the economic aspects of illegal activities, most notably by Becker, Gary S. in “Crime and Punishment: An Economic Approach”, The Journal of Political Economy 76 (1968), 169–217.CrossRefGoogle Scholar However, the economists did not present their results as an ethical theory, and philosophers writing about punishment failed to notice the ethical relevance of the "economic approach” to crime and punishment.

6 There are, of course, various possible ways of individuating types of criminal acts, and this would leave a legislator with some room for fine tuning in implementation of the theory.

7 A feature of this system that might be worth noticing (although it is not essential to my argument) is that it tends to break the bonds of solidarity that often exist among criminals. Efficiency of law enforcement is in the interests of apprehended criminals in this system (as it reduces the restitution that each of them has to pay) which gives them a clear incentive to co-operate in the law-enforcement efforts. They often possess skills and information that are likely to make such co-operation fruitful.

8 As the system outlined here provides restitution for every victim, it is not affected by Margaret R. Holmgren's recent criticism of Barnett's theory, which is based on her discussion of “secondary harms” (“Punishment as Restitution: The Rights of the Community”, Criminal Justice Ethics [Winter/Spring 1983], 36–49).Google Scholar As some of her own remarks make clear, her criticism is relevant only in situations where prospective victims don't have “a good chance that complete restitution will be made for the primary harm” (47–48).

9 Morris, Herbert, “Persons and Punishment”, The Monist 52 (1968), 475–501.CrossRefGoogle Scholar

10 Burgh, Richard W., “Do the Guilty Deserve Punishment?”, The Journal of Philosophy 79 (1982), 193–210.CrossRefGoogle Scholar

11 Barnett hopes that most of the victims of unsolved crimes will be compensated from various private insurance schemes in which they have voluntarily enrolled. Such compensation would ultimately come from other policy holders within the same insurance scheme, which means that the cost created by much of the criminal activity would again (like in the present society) have to be born by those who are in no way responsible for it. What would be achieved by Barnett's insurance companies doesn't seem to be so radically different from what could be achieved by tax-funded compensation schemes that Barnett vehemently opposes (cf. Kleinberg, , “Criminal Justice and Private Enterprise”, 276)Google Scholar.

12 Miller, , “Restitutionand Punishment”, 359Google Scholar; cf. Dagger, , “Restitution, Punishment, and Debts to Society”, 6Google Scholar.

13 This is what distinguishes such crimes from the genuinely victimless crimes like prostitution or homosexuality.

14 Barnett, , “Restitution”, 375–378;Google ScholarMiller, , “Restitution and Punishment”, 359Google Scholar; Dagger, , “Restitution, Punishment and Debts to Society”, 5–6Google Scholar.

15 Attempts that don't fit this classification can be split into several elements, such that each of those elements belongs to one of the three groups.

16 In recent years some United States jurisdictions have decriminalized certain kinds of abandoned attempts, following the recommendations of the American Law Institute's Model Penal Code. Outside the Common Law world such provisions are encountered more often. See e.g., Meehan, , The Law of Criminal Attempt—A Treatise (Calgary, AB: Carswell Legal Publications, 1984), chap. 7Google Scholar.

17 The example of attempted bribery, put forward by Kleinberg ("Criminal Justice and Private Enterprise”, 278) combines difficulties discussed under (1) and (2). I hope that what I have said above makes it clear that the system based on restitution needn't tolerate attempted bribery. Crimes of endangerment (i.e., acts that create risks of harm but no actual harm) were also invoked by Barnett's critics (Eugene, Miller, “Restitution and Punishment”, 359–360;Google ScholarDagger, , “Restitution, Punishment and Debts to Society”, 6).Google Scholar Some of those crimes can be dealt with by using the same reasoning that was outlined above for dealing with criminal attempts. In some other cases, the dangerous activity could safely be decriminalized and its regulation left to the realm of contracts (e.g., prohibition of dangerous driving could become part of a contract between a highway owner and a highway user).

18 Nozick, , Anarchy, State and Utopia, 77.Google Scholar

19 For an example of contemporary discussion of the problem, see Ewin, R. E., “What Is Wrong with Killing People?”, The Philosophical Quarterly 22 (1972), 126–139CrossRefGoogle Scholar.