Debunking Criminal Restitution

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution. Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in the criminal legal system—as courts across the country order people without means to pay. Meanwhile, most criminal restitution goes uncollected, providing little satisfaction to the victims the schemes are designed to “make whole.” At the federal level and in several states, criminal restitution has become a mandatory part of sentencing, without any consideration for a defendant’s economic circumstances. This Article reframes the lens through which we examine criminal restitution and debunks the widely accepted belief that it is an appropriate criminal financial obligation. Similarly problematic and pervasive as other types of financial punishment, criminal restitution has transformed into a form of wealth extraction from the most vulnerable, perpetuating existing inequalities with few benefits to victims. To that end, this Article calls for a reimagining of criminal restitution and explores various alternative frameworks for achieving its policy goals, while also promoting defendants’ successful reintegration into their communities.