Leaving Room for Rehabilitation in the Theory and Practice of Criminal Restitution

Jessica C. Frisina

Criminal restitution laws across the country are harming victims, defendants, and communities. Divorced from rehabilitative goals and lacking adequate procedural due process, these laws allow for impossibly high restitution awards that inevitably disappoint the very victims they are meant to serve and trap defendants in crippling cycles of poverty and reincarceration. To date, much of the existing literature on restitution has begun with the assumption that the primary purpose of restitution is to restore the victim to the financial position they were in before the crime occurred. Unfortunately, this retributive, victim-centered approach to restitution theory is not working. Victims are not receiving compensation, defendants’ lives are being destabilized, and communities are bearing the brunt of the fallout.

This Article rejects the assumption that prioritizing victim restoration is effective public policy. It argues that if we want restitution law to succeed—if we want victims to be repaid and defendants to be successfully reintegrated into society—then we must ground the theory and practice of restitution law more explicitly in the goal of offender rehabilitation.

In service of that claim, this Article proceeds in three parts. First, it demonstrates that when restitution theory identifies offender rehabilitation as its primary penological goal, it has greater potential to increase both defendant compliance and victim satisfaction with restitution awards. Second, it outlines specific procedural safeguards that must be implemented to satisfy the demands of due process and ensure that restitution theory achieves its rehabilitative penological goal in practice. Third, it considers the implications of these proposals and situates them within the larger conversation of abolition. In calling for these changes, this Article confronts the most pressing problems with restitution law and offers a more theoretically sound, more procedurally just, and, ultimately, more successful model.

Rural Mass Incarceration and the Politics of Punitiveness

Gregory Brazeal

Criticisms of American mass incarceration have generally focused on urban areas, and especially large, racially segregated cities. But after nearly two decades in which urban incarceration rates have fallen while rural rates have risen, rural Americans are now more likely to be incarcerated than urban Americans. Because most rural areas in the United States are overwhelmingly white, the rise of rural incarceration rates creates a puzzle for race-grounded explanations of American mass incarceration. Why would overwhelmingly white areas “lock up their own” in such great numbers?

This Article proposes an explanation for the ongoing rise of rural mass incarceration that draws on two strands of political science research. First, Peter Enns’s analysis of the origins of American mass incarceration suggests that changes in incarceration rates have been largely driven by two interrelated factors: crime rates and punitive public attitudes toward crime. Because rural crime rates have remained lower than urban crime rates, Enns’s model implies that rural incarceration rates are likely higher than urban incarceration rates today primarily because rural Americans have more punitive attitudes toward crime.

Survey evidence shows that, in fact, rural Americans do have more punitive criminal justice views than nonrural Americans. A second strand of political science research suggests possible explanations. Scholars of political psychology, including Karen Stenner and Marc Hetherington, have found that punitiveness, like intolerance, tends to vary based on differences in personality and changes in perceived threats. Notably, rural Americans have a higher average score than nonrural Americans on a standard measure of “authoritarian” predisposition, which is associated with greater punitiveness under at least some conditions.

Understanding political support for mass incarceration as fundamentally the product of psychological processes tied to punitiveness and intolerance rather than ideological attitudes specifically about race does not mean ignoring the central role of race in the politics that created American mass incarceration. To the contrary, the most politically powerful expression of intolerance throughout U.S. history has been racial intolerance, especially toward Black and Indigenous Americans. But attending to the political psychology of punitiveness suggests that confronting racial injustices in the criminal legal system, while necessary, may not be sufficient to end mass incarceration.

Don’t Just Ask the Kids: Toward a More Deliberate Approach to Child Advocacy

Dale Margolin Cecka

The practice of child advocacy is in complete disarray across the country. A primary reason for this is the misuse of the child’s stated wishes during custody battles. Most states incorporate the child’s perspective through the appointment of attorney guardians ad litem (“GALs”), whose role is to promote the child’s best interests. Other states assign attorneys for the child (“AFCs”), who are limited to advocating the child’s position in court. Both types of child advocates are also expected by courts to serve as investigators, advisors, and/or mediators. However, none of these practices are grounded in outcomes-based empirical evidence. Research shows that damage is done to children when their parents engage in protracted litigation and fail to co-parent civilly over the long term. When courts appoint separate advocates for children, they add unnecessary and ill-equipped parties to the mix. As long as we continue to dissolve families in this country on an adversarial basis, we must abolish all current judicial practices related to child advocacy in custody litigation, including the use of the child’s purported wishes. This Article proposes, instead, two streamlined appointments, both only for use at final trial: a forensic investigator, to provide the court with specific information, and a forensic social worker, to report a child’s actual words. If the judicial system truly cares about reducing strife for children, its players should be on board with this more deliberate approach to child advocacy.

The Intangible NAGPRA

Trevor Reed

Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses.