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June 26, 2014

"What Is Criminal Restitution?"

The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.

This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.

June 26, 2014 at 12:36 AM | Permalink


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Would you want your rapist making time payments to you over 10 years? Would you like to call him if a payment is late?

Posted by: Supremacy Claus | Jun 27, 2014 5:07:25 AM

Great article - just from the Abstract, and as soon as I am done writing here, I am purchasing the article. However, the previous comment by Supremacy Claus is an ignorant statement that shows the commentator understands neither constitutional procedure nor Apprendi vs. New Jersy. Further, the mindset of the comment evinces simply bitterness and retribution. Society does not impose laws based upon bitterness, personal feelings and retribution. Instead, society enforces laws and upholds the constitution based upon what is just. It is easy to say how would you feel, but it is difficult to impose what is just. In any event, thank you for the article as restitution keeps my clients impoverished for years.

Posted by: Eric Sims Jr. | Jun 30, 2014 1:31:52 PM

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