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Victim Compensation/Restitution

Restorative justice underscores the need for victims' harms to be repaired to the extent possible. Compensation and restitution are two ways this may be done.

Lisa Rea interviews Stephen Watt
by Lisa Rea: The following interview is with Stephen Watt, a former Wyoming state trooper and two term state legislator who was shot multiple times by a fleeing bank robber. Lisa Rea's interview focuses on how the impact of a severely violent crime continues 20 years later. Mr. Watt has met with the offender, forgiven him and a friendly relationship has grown up between them. Nevertheless, he continues to suffer. Can restorative justice open doors for further healing in a victim of violent crime who is suffering continuing, severe trauma?
Victims abused then denied care: 8 states allow practice
by Lisa Rea After reading the news story on MSNBC I was astounded. The story tells of the denial of health care insurance to victims of domestic violence in the U.S. This apparently has been going on for quite a while in the U.S. but most of us probably never heard about this appalling fact. As the story reads, a 1994 survey conducted by the U.S. Senate Judiciary Committee found that 8 of 16 U.S. insurers denied coverage to applicants due to domestic violence. You'd think maybe we were talking about the offender (i.e. the abuser) being denied coverage but, no, we're talking about the victim of domestic violence. In the U.S. health insurance companies can deny coverage without explaining why that coverage is being denied.
Dark charges from Mahony's inner circle
by Lisa Rea. When I read this column on the clergy abuse scandal written by Steve Lopez in the Los Angeles Times it was like getting an immediate migraine headache. I have followed the sex abuse scandals in the Catholic Church closely since the first public eruption in 2000/2001. I know I'm not alone. But my interest led me to speak out on this subject publicly because of my deep commitment to restorative justice and its great value to victims of crime and offenders as well. But my passion to do more than speak about it privately to my own circle of friends and family was because this subject mixes abuse of children with faith. Since I am a committed Christian these news stories have appalled me deeply. It has offended me as a Christian. And then there are the victims.
Reparative Probation Boards
Hello, I am pleased to see that PFI included the new victim’s rights legislation news on this blog. As you may know, NH has the [...]
New Hampshire legislation
Dan, this is an excellent idea. I would like to see the legislation. Crime victims should have the right to participate in restorative justice processes. [...]
Dan Van Ness: New Hampshire legislature adopts important new victim rights bills
The New Hampshire legislature has created a victim’s right to access to restorative justice programs, provided for compensation to victims of costs related to that participation, and ensured that these are not restricted to victims whose position on sentencing is the same as the prosecutors’.
Workman, Kim. The Future of Restorative Justice – Control, Co-option, and Co-operation
This paper explores the history of restorative justice in New Zealand and lays out a course for the future.
Mackay, Robert. A Humanist Foundation for Restitution
This paper makes a case for an ethical underpinning for restorative justice. This approach is developed from a neo-Aristotelian perspective. It adapts the conceptual framework of Alasdair MacIntyre for the articulation and resolution of epistemological crises in traditions of enquiry, to the task of providing a critical and analytic framework for considering the crisis of rationale and practice in the contemporary criminal justice-penal archipelago. The author argues that Restitution, conceived in neo-Aristotelian terms, provides a resolution of that crisis. Finally, he foreshadows a debate to be had between the neo-Aristotelian position, and that of Critical Theory on the issue of legitimizing Restitution. (author's abstract)
Roht-Arriaza, Naomi. Reparations Decisions and Dilemmas
Naomi Roht-Arriaza asserts that it is a basic maxim of law that harms should be remedied. All legal systems, including international human rights law, provide for redress of wrongs in some form – with restitution, compensation, and reparation being common legal means of redressing wrongs. Yet, few reparations have actually been paid in the wake of mass atrocities. Roht-Arriaza poses the question why there is this discrepancy between word and deed, between the legal acknowledgement of reparation and the actual payment of reparation. To address this question, she looks at difficulties in considering reparation for mass atrocities, legal guideposts and past practices that might be applicable to reparation in this context, and alternatives to court-ordered reparations.
Bottigliero, Ilaria. Redress for Victims of Crimes Under International Law
This book consists of a revised version of Ilaria Bottigliero’s doctoral thesis, completed at the Graduate Institute of International Studies in Geneva, Switzerland. Bottigliero begins the book with the assertion that redress for victims of crime forms a basic principle of justice. Throughout history most of the world’s legal systems have acknowledged this principle that victims should receive some form of redress. However, Bottigliero notes, it has been much easier for victims of “ordinary” crimes – such as vandalism, robbery, assault, and even murder – to obtain redress than for victims of more severe crimes such as war crimes, human rights violations, or genocide. Why is this the case? Why have victims of some of the worst crimes received “second class” treatment or no justice at all? In profound ways, the greatest crimes pose the greatest challenge in terms of redress for victims. While there has been increasing consensus in international perspectives and laws that such victims deserve redress in some form in the search for justice and peace, there has been far less consensus on how to accomplish this, and little is done for such victims. In the interests of advancing the international community’s perspectives on and capacity for providing redress for the worst crimes, Bottigliero examines several key aspects of this question: the historical origins of the principle of victims’ redress; its evolution; and its application in the current frameworks of domestic law, regional and universal human rights regimes, humanitarian law, state responsibility, United Nations practice, and international criminal law. Her study includes a substantial chapter on the origins of the victims’ right to redress – specifically, the historical swing from restoration to retribution and back to restoration, especially as seen in the movement from retributive justice to restorative justice.
Ellin, Joseph. Restitutionism Defended
Restitutionism is a perspective that most of what is now considered a crime would be treated as a tort. Criminal law as a distinct body of rules would be abolished, along with most prisons and public police. In civil proceedings victims would seek damages for harms they suffered, and offenders would pay compensation to victims instead of serving time in jail or prison. In this essay, Joseph Ellin defends restitutionism. He contends it would be less expensive and would put the cost of crime back on the criminal. Also, it would aid victims in ways they are not being aided under the current criminal law system. Restitutionism, Ellin writes, holds that compensation is a better response than retribution. It seeks justice through compensation rather than through punishment. Proponents of restitutionism regard the preference for punishment over restitution as morally disturbing. Ellin explores all of this in relation to issues such as deterrence, the needs and rights of victims, types of crimes, and certain practical problems pertaining to restitutionism.
Eddy, Dan. Repairing the Harm: A Response
With benefits nearly doubling in the past six years -- from $250 million to more than $450 million annually -- state compensation programs are providing financial assistance to more victims of domestic violence, sexual assault, child abuse, and other crimes than ever before.
Justice Fellowship Task Force. Restitution: A Model Enactment of Restorative Justice
This document presents model legislation to establish restitution in a form that brings restorative justice principles to State criminal justice systems. The legislation features mandatory full compensation to all the victims, a comprehensive collection mechanism with enforceable sanctions to obtain payment from the time of sentencing until the obligation is satisfied, and integration with the corrections process to effect a personal change in the offender. The provisions define the policy and legislative intent, define the operative terms, explain the meaning and imposition of restitution in sentencing, and define the mechanisms for collecting the restitution. Further provisions define sanctions to make the law effective; funding provisions to relieve the economic burden on the taxpayers; accountability through legislative reporting, fiscal audits, and administrative reviews; and the specific rights of recourse for the crime victims. The model is defined to provide a detailed framework on which each State may develop legislation to address the specific deficiencies in their existing laws.
Kirchengast, Tyrone. Integrating restorative approaches in victim's compensation and assistance.
This paper provides a critical assessment of the legislation establishing criminal injuries compensation and victim assistance schemes across the states and territories of Australia. These programs are assessed in terms of the extent to which they limit a victim’s participation in the criminal jurisdiction for an alternative administrative milieu that actually removes the victim from the criminal law. The extent to which this restoration occurs in an administrative framework as an adjunct to the criminal jurisdiction is assessed with the view to provide the victim of crime greater access to the criminal law as the site of the resolution of the criminal offence. Issues regarding the integration of victim interests, such as the need to preserve defendant rights, is discussed. (author's abstract)
Ludi, Regula. Historical Reflections on Holocaust Reparations: Unfinished Business or an Example for Other Reparations Campaigns?
"...For an overall assessment, we cannot judge Holocaust reparations simply according to the amount of money transferred to survivors. We also need to look at the winding road taken by reparations' politics since the end of the Second World War. What were the purpose and rationale of reparations? Who were the beneficiaries of restitution and compensation mechanism, and for what types of abuses did claimants receive redress? Who financed compensation payments, and did such payments entail acknowledgement of legal responsibility by the State? I shall try to find answers to these questions by addressing four dimensions of the Holocaust reparations: First I shall discuss the emergence of victim reparations in the context of international law in the course of the post-ware 'Juridical Revolution,' the bundle of legal responses to Nazi atrocities. The second and third aspects to be examined relate to German diplomatic and domestic policies in response to victims' claims, including lump-sum payments to Israel and various European countries as well as domestic legislation regarding property restitution, compensation payments for the violation of basic rights and the repeal of abusive judgements. Finally the fourth issue concerns recognition of victimhood and allocation of benefits in compensation practice." (abstract)
. Offender and state compensation for victims of crime: Two decades of development and change.
This article comprises an overview of the principal normative and operational issues that arise in both common and civil law states’ arrangements for the compensation and reparation of victims of crime. Balancing what are inevitably generalized statements about jurisdictions within federal common law countries and within the European Union, the article illustrates these issues with details drawn from the civil and criminal justice systems of England and Wales. The article begins with some general observations about the ways in which compensation and reparation by offenders and compensation by the state form elements in a state’s overall objectives for victims within its criminal justice system, and addresses the question of what we might understand by ‘compensation’ in a criminal justice context, and how that sits with civil justice. For this purpose ‘compensation’ may be understood both in the compendious sense of any offender or state financial payment in respect of a victim’s loss or injury or of the offender’s direct or indirect restoration of stolen or damaged property, and in its discrete sense of a purely monetary response distinct from the non-monetary responses that characterize ‘reparation’ − responses now widely associated with restorative justice. The article provides some detail on compensation and reparation by offenders as forms of criminal justice disposals, and on the scope and the functions of state compensation schemes. (Author's abstract)
. Restitution in Pennsylvania Task Force Final Report.
Seeking to maximize the reimbursement of financial losses to crime victims, the Task Force worked within context of restorative justice theory and practice: balancing the needs of victims, the community and offenders. The Task Force was charged with crafting recommendations which would enhance the criminal and juvenile justice systems’ effectiveness through possible standardization of policies and protocols concerning the ordering, collection and disbursement of restitution. (except)
Harel, Alon and Ben-Shahar, Omri. Compensation of victims of crime: An economic analysis.
In recent decades, efforts have been made to recognize the rights and needs of victims in the criminal justice process. One way to address the rights and needs of victims is compensation. In certain instances, laws provide for financial redress of loss suffered by a victim, either through state-funded compensation or through restitution paid by the offender. The authors of this paper analyze the financial effects of compensation schemes. They maintain that compensation schemes are socially desirable because they could reduce the social cost of crime. The social cost of crime consists not only of losses experienced by actual victims, but also the considerable amounts spent on crime-prevention measures by those who are only potential victims. The authors contend that compensation schemes could reduce investment in crime-prevention measures by giving people a reasonable expectation of being compensated should they someday experience loss due to crime.
Weitekamp, Elmar G. M. Calculating the damage to be restored: Lessons from the national survey of crime severity
Weitekamp surveys key points in the history of compensation in response to offenses: its prevalence in earlier societies; its eclipse in the modern era; the emergence of restorative justice in the 1970s and efforts to reintroduce restitution, victim-offender reconciliation and other restorative programs; difficulties and shortcomings in the implementation of such programs; and yet attempts to apply such programs to more problematic criminal offenses. Serious objections have been raised against this potential extension of restorative justice programs. One key argument is the difficulty in reckoning the amount of damage and consequently the amount of compensation with respect to serious, violent offenses. Therefore, the viability of applying restorative justice programs to serious, violent offenses is a crucial issue. Yet crime severity studies have not been discussed in this context. Hence, Weitekamp provides a detailed discussion of the development and results of crime severity studies, with particular reference to the Sellin-Wolfgang Index for scaling the severity of offenses. From this Weitekamp advances the idea that the National Survey of Crime Severity (United States) resulted in monetary rankings of the severity of crimes, and that these results could be used to establish restorative programs (such as restitution, and victim-offender mediation) for violent crimes.
Thorvaldson, S. "Restitution and Victim Participation in Sentencing: A Comparison of Two Models."
This essay compares civil restitution and "criminal restitution. Comparisons are made on 30 variables, including: the nature and legal status of the victim; the primary justifying aims, status and priority of restitution; compensable harms and the way harm is assessed; eligible cases, procedural standards and limiting principles; the relationships between restitution and other compensatory procedures such as civil action, the combined trial, public compensation programs, and victim surtaxes; the victim's duties and rights; the role of the prosecutor and the status of victims' private counsel.

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