NCJ Number
47998
Date Published
1977
Length
9 pages
Annotation
CREATIVE RESTITUTION, AN ALTERNATIVE TO PUNISHMENT AND THERAPEUTIC TREATMENT OF OFFENDERS, IS PRESENTED AS A MEANS OF SIMULTANEOUSLY COMPENSATING CRIME VICTIMS AND REHABILITATING OFFENDERS.
Abstract
PUNISHMENT AND TREATMENT ARE PRIMARILY CONCERNED WITH OFFENDER BEHAVIOR, WHILE RESTORATIVE JUSTICE FOCUSES ON THE HARMFUL EFFECTS OF SUCH BEHAVIOR ON VICTIMS OF CRIME. SIMILARLY, PUNISHMENT AND TREATMENT OVERLOOK VICTIMS EXCEPT AS WITNESSES, PLACE OFFENDERS IN A PASSIVE ROLE OF RECEIVING CORRECTIVE ACTION, AND REMOVE OFFENDERS FROM THE SITUATION IN WHICH THE OFFENSE OCCURRED. IN CONTRAST, RESTORATIVE JUSTICE PLACES EMPHASIS ON VICTIMS AND THEIR NEEDS AND GIVES THEM AN IMPORTANT ROLE TO PLAY IN ACHIEVING JUSTICE AND DEVELOPING A REHABILITATIVE OR CORRECTIONAL PROGRAM. CREATIVE RESTITUTION KEEPS OFFENDERS IN THE SITUATION AND TRANSFORMS THEIR EXPLOITATIVE AND HARMFUL BEHAVIOR INTO CHARITABLE BEHAVIOR. THIS TYPE OF RESTITUTION, AS A FORM OF GUIDANCE, RECOGNIZES THAT GUIDANCE DESTROYS FIXED PATTERNS SO THAT LEARNING CAN OCCUR, BUT IT DOES NOT PREVENT ERRORS. A RESTORATIVE APPROACH TO CREATIVE RESTITUTION ACCEPTS BOTH FREE WILL AND PSYCHOLOGICAL DETERMINISM. ONE OF THE KEY QUESTIONS IN RESTITUTION IS WHETHER TO COMPEL OFFENDERS TO MAKE AMENDS OR LEAVE THE DECISION UP TO THEM. IN THIS REGARD, FOUR TYPES OF RESTITUTION ARE CONSIDERED: (1) SPONTANEOUS RESTITUTION OF DAILY LIFE, WHERE THE OFFENDER DECIDES WHETHER TO MAKE AMENDS AND HOW HE WILL MAKE THEM; (2) MANDATORY RESTITUTION OF CIVIL COURT ACTION, WHERE THE COURT ORDERS A DEFENDANT TO MAKE AMENDS TO HIS VICTIM AND SPECIFIES HOW REPARATIONS SHOULD BE MADE; (3) RITUAL RESTITUTION, WHERE THE DECISION ABOUT MAKING AMENDS IS FREELY MADE BUT THE FORM OF RESTITUTION IS DETERMINED; AND (4) GUIDED OR CREATIVE RESTITUTION, WHERE THE OFFENDER IS REQUIRED TO MAKE AMENDS FOR HIS OFFENSE BUT IS FREE TO DETERMINE WHAT FORM THE AMENDS WILL TAKE. GUIDED RESTITUTION IS THE PREFERRED TYPE. THE RESTITUTIONAL ACT HAS THE FOLLOWING CHARACTERISTICS: (1) THE OFFENDER PLAYS AN ACTIVE ROLE IN RESTITUTION, (2) THE OFFENDER MAKES CONSTRUCTIVE AND HELPFUL EFFORTS TO AID THE VICTIMS OF HIS OFFENSE, (3) THE RESTITUTIONAL ACT CLOSELY RELATES TO THE NATURE OF DAMAGE OR HARM RESULTING FROM AN OFFENSE, AND (4) RESTITUTIONAL ACTS ARE REPARATIVE OF DAMAGE DONE TO PERSON OR PROPERTY. THE REPARATIVE EFFORT DOES NOT STOP AT RESTORING A SITUATION TO ITS PREOFFENSE CONDITION, BUT GOES BEYOND TO LEAVE THE SITUATION BETTER THAN IT WAS PRIOR TO THE OFFENSE. AN IMPORTANT PART OF GUIDED RESTITUTION IS AN OFFENDER'S ACTIVITY ON BEHALF OF OTHER OFFENDERS; A MUTUAL HELP RELATIONSHIP IS EXEMPLIFIED BY THE ALCOHOLICS ANONYMOUS PROGRAM. RESTITUTION MAY OCCUR BEFORE AN OFFICIAL CRIMINAL CHARGE IS MADE, AS PART OF PROBATION, OR BEFORE AN OFFENSE HAS ACTUALLY BEEN COMMITTED. A CONTROLLED EXPERIMENT, INVOLVING THE DIFFERENTIAL EFFECT OF PUNISHMENT AND RESTITUTION, IS DESCRIBED, AND THE IMPORTANCE OF VICTIMS IN THE RESTITUTIONAL CONCEPT IS STRESSED. (DEP)