THE ISSUE. When a property crime or a violent crime occurs, the primary aggrieved party is the individual victim, not the government, and thus the compensation should go primarily to the individual victim, not the government. This idea has been around for centuries, and the concept is found in the sacred texts of nearly every major religion. In the modern world, however, we have drifted away from this essential truth. A telling example is the “style” of criminal cases, which are written as ‘Defendant v. [The State],’ rather than ‘Defendant v. [Victim.]’ The case styles reveal that our system now focuses more on prosecuting defendants for the harm they have done to society at large, rather than the harm they have done to their victim. It is important to pay attention to the effect crime has on society, but we must not neglect the victim’s rights.
In the investigation and prosecution of crimes, victims must be included at every stage and meaningfully empowered. Opportunities for more informal restorative practices should also be considered for non-violent first time offenses.
Informal restorative practices are not likely to displace the modern criminal justice system, due to factors such as population growth, urbanization, and the transient nature of many modern communities. Nevertheless, a growing body of evidence indicates the benefit – to victims, taxpayers, and offenders – of integrating practices designed to empower and restore victims into today’s criminal justice process.
THE IMPACT. Mediation – in appropriate cases in which participation is voluntary both for victim and offender—offers victims an expedited means of obtaining justice in contrast with protracted pretrial proceedings, jury selection, and appeals. A mediation agreement is ratified by the prosecutor or judge. Failure to comply subjects the offender to traditional prosecution and, if necessary, incarceration. Because mediation enables offenders to avoid a conviction on their record, they are often more successful in finding or retaining jobs that enable them to pay restitution.
A national study found that 95 percent of cases resolved through victim-offender mediation result in a written agreement, 90 percent of which are completed within one year, far exceeding the average restitution collection rate of 20 to 30 percent. Furthermore, 79 percent of victims who participated in mediation were satisfied, compared with 57 percent in the traditional court system. Also, the 1,298 juveniles who participated in mediation were 32 percent less likely to re-offend.
In addition to mediation, a greater emphasis should be placed on victims’ input
throughout the criminal justice process. The voice of the victim should be more closely considered by judges and prosecutors at every stage.
THE CONSERVATIVE SOLUTION.
• The criminal justice system should be structured to ensure that victims are treated with dignity and respect and with the choice to participate, recieve restitution, and even be reconciled with first time non-violent offenders.
• In appropriate cases, enable crime victims to choose pretrial victim-offender mediation.
• Expand victims’ access to offenders’ funds by lowering exemption thresholds that apply to restitution orders when they are converted into civil judgments.
• Use amount and share of restitution actually collected as a performance measure for probation and parole systems.
Elain Ellerbe | March 16, 2017
Joe Luppino-Esposito | March 3, 2017
Right on Crime | January 20, 2017
Kim Dusseldorp | March 16, 2016
Michael Haugen | January 12, 2016
Michael Haugen | December 3, 2015
Greg Glod | September 21, 2015
Michael Haugen | September 8, 2015
Right on Crime | July 20, 2015
Michael Haugen | July 17, 2015
Michael Haugen | June 23, 2015
Michael Haugen | June 22, 2015
Right on Crime | June 15, 2015
Right on Crime | June 12, 2015
Michael Haugen | May 20, 2015
Greg Glod | May 6, 2015
Aligning Incentives and Goals in the Texas Criminal Justice System by the Texas Public Policy Foundation
Restitution: A New Paradigm of Criminal Justice by Professor Randy Barnett
Restorative Justice in Texas by the Texas Public Policy Foundation
Treating Texas Crime Victims as Consumers of Justice by the Texas Public Policy Foundation
Victim-Offender Mediation and Plea-Bargaining Reform in Texas by the Texas Public Policy Foundation