Punishment Through Restitution

Abstract

Criminal restitution is a standard part of sentencing. As criminal restitution obligations have become more common, the contours of what constitutes “restitution” have expanded. A consequence of the rise in the number of restitution orders, as well as the growth in restitution amounts, is an increase in uncollected restitution obligations. Unpaid restitution debt runs in the billions of dollars, most of which is uncollectible due to the indigence of those ordered to pay it. Unpaid restitution leaves everyone unsatisfied: crime victims are rarely compensated sufficiently and those ordered to pay restitution remain under the authority of the criminal legal system while their restitution obligation remains outstanding. Federal legislation established criminal restitution as a punitive mechanism, in addition to a compensatory one, but courts have been reluctant to fully acknowledge the implications of accepting restitution as punishment. If courts would concede restitution’s punitive purpose and effect, the Constitution could limit the scope of restitution awards — through the Sixth Amendment’s jury trial right and the Eighth Amendment’s excessive fines clause. Under the Sixth Amendment, juries could determine the amount of restitution. Despite language in the federal statutes prohibiting courts from considering a defendant’s ability to pay, courts could declare those portions of the restitution statutes unconstitutional under the Eighth Amendment, and consider, instead, the proportionality of the restitution amount relative to the gravity of the offense, relying on the anti-ruination principle in determining excessiveness.