NCJ Number
105986
Journal
Journal of Criminal Law and Criminology Volume: 77 Issue: 4 Dated: (Winter 1986) Pages: 969-1022
Date Published
1986
Length
54 pages
Annotation
This article argues that a restituion order must reflect an offender's conviction offense, because the formal process of fixing guilt ceases to be an effective ideological ritual which meets the requirement of community order when its description of the offender's responsibility is replaced by some alternative description of the offender's 'actual' guilt.
Abstract
A review of the literature on restitution focuses on the ideological functioning of the criminal process. This is followed by an examination of the historical claim, advanced by advocates of the 'restitutionary theory of justice,' that tribal societies drew no distinction between private and public wrongs. Additional data presented suggest that a tribal law of crimes did exist. A closer look at the punishment of criminal conduct in tribal societies concludes that this social practice reinforced a group ideology pertaining to boundary-defining mechanisms. Using this analysis of crime in tribal society, a model is created to illustrate criminal law's role in contemporary Western society. The model indicates that criminal adjudication and sentencing combine to maintain an ideology in which autonomous individuals are ascribed responsibility for complying with group norms. The integrity of the adjudicatory ceremony is its capacity to articulate the nature of the offender's freely willed conduct. This ceremony is undermined when a court fashions a restitution sentence which goes beyond the offender's adjudicated guilt. 286 footnotes.