The (non-) role of restitution in modern justice

(Inspired by a recent thread where it was reported that a prosecutor who knowingly kept an innocent man in jail for 25 years was sentenced to ten days and $500.)

Why does literal restitution (in which the meaning of the judge’s sentence is “The convicted must successfully reverse his crime, so that it’s as if he had never done it”) seem so infrequent in modern courts? Am I just imagining that it’s uncommon - does it really happen all the time but I never hear much about it?

Clearly in murder, rape, and some other things, restitution is nonsense. Forget those. I’m talking about the vast remainder of cases, in which restitution does make sense - either partial sense or complete sense.


That’s the general principle in civil law. You obviously can’t make the innocent man not having gone to jail, but you can have to pay him a large amount of money that is supposed to compensate (in theory exactly) those 25 years he spent behind bars.

Criminal sentencing isn’t about reparations/restitution at all.
Also, I’m not sure why you think that restitution is less of a nonsense for someone who was jailed for 25 years than for someone who was raped.

Without seeing the details, that was my first take. Civil vs criminal law.

The parts of rape that CAN be compensated for are more limited. For example, someone who is newly pregnant since last night can’t just be put back the way they were. Someone who was traumatized yesterday can’t be put back the way they were. But 25 years’ wages can at least be repaid, even if 25 years’ suffering are irreversible. So why 10 days in jail and a $500 fine for the perpetrator?

Maybe part of my question is - why the quick reflex answer that criminal cases don’t involve restitution? Why wouldn’t they? Why (for example) isn’t Bernie Madoff toiling in perpetuity, working 80-hour weeks until he drops dead, to attempt to pay off the 65 billion dollars he stole? What good is his prison term doing for his victims? What is society gaining by paying him to live in prison?

Crimes are crimes because they’re not purely private matters; they don’t just affect one or two individuals, but the whole of society. So the focus of the criminal justice system has never been compensation or redress for individual victims. If that is what they seek, they can have recourse to the civil justice system, because that’s what the civil justice system is for.

In the case mentioned (but not linked) in the OP, the wrongfully imprisoned individual obviously has a claim for restitution - but not just against the individual prosecutor. There’s a failure by the state here too - the state put the prosecutor in the position he’s in, gave him the powers he had, failed to supervise the execution of those powers, and failed to provide a mechanism for timely correction of abusive exercise. If we were to link compensation to a criminal conviction of the individual prosecutor, this would leave the victim worse off, since it focuses his claim for compensation on the party least likely actually to be in a position to provide meaningful compensation.

In England, the rise of absolute monarchy and the strength of the central government resulted in the Crown instituting punishments that benefitted the state. More and more offenses were piled on because they offended the “King’s Peace”. This erroneous doctrine has carried through to the modern era and mixed with bizarre aspects of American democracy and Puritanism to create “crimes against society”. Of course this is all nonsense. Any just judgement would take into account the desires of the actual victim(s). This could be restitution or something else that is appropriate.

Because there’s another existing system for reparation : civil courts. Criminal courts deal with punishment and detterence. In a criminal case, you’ll generally have both a criminal trial and a civil trial. The criminal trial will result in sentences imposed by society. The civil trial will determine damages owed to the victim.

In my country, they’re directly tied : the civil trial immediately follows the criminal trial, with the same judges. In the USA they’re entirely separate, but the concept stays the same.
ETA : and in the specific case you mention, the culprit being an official, it’s likely that the civil case will be also (and in fact mainly) against the body employing this person.

I believe that this is the case referenced in the OP: