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.