Punitive Compensation

Tulsa Law Review, Nov 2015

By Cortney E. Lollar, Published on 11/19/15

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Punitive Compensation

Cortney E. Lollar, Punitive Compensation Punitive Compensation Cortney E. Lollar - Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness present in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant. The jury is the preferable fact-finder both because jurors represent the conscience of the community, and because the Sixth Amendment jury trial right compels this result. Nevertheless, many scholars and legislators remain reluctant to permit juries to determine the financial award in a particular criminal case. Courts and lawmakers share a common misperception that juries make arbitrary, erratic, and irrational decisions, especially in the context of deciding criminal punishments and punitive damages, both of which overlap conceptually with punitive compensation. In debunking this narrative, this Article relies on empirical studies comparing judge and jury decision-making and concludes that juries are the more fitting fact-finder to determine the amount of punitive compensation to impose in a given case. Although anchoring biases, difficulties in predicting the duration and degree of a crime victim’s future emotional response, and poorly written jury instructions challenge juries, each of these impediments can be counteracted through thoughtful and conscientious systemic responses. * Assistant Professor, University of Kentucky College of Law. Thanks to Albertina Antognini, Joshua Barnette, William Berry, Jennifer Bird-Pollan, Samantha Buckingham, Nina Chernoff, James Donovan, Joshua Douglas, Andrew Ferguson, Brian Frye, Nicole Huberfeld, Vida Johnson, Wayne Logan, Donald J. Lollar, Janet Moore, Yolanda Vázquez, Sarah Welling, and Andrew K. Woods for their insightful thoughts on early drafts. My gratitude to Andrew Kull and Andrew Ferguson for pushing me to create a new term for “criminal restitution,” Robert Kuehn for the initial idea for this Article, Travers Manley for thorough and broad-ranging research assistance and Franklin Runge for his help in tracking down sources. This Article was the beneficiary of numerous helpful ideas at the Developing Ideas Conference at the University of Kentucky College of Law, the University of Cincinnati and University of Kentucky Colleges of Law Joint Junior Faculty Workshop, and Scholarship Panel at the PDS in the Legal Academy Symposium. 100 [Vol. 51:99 I. INTRODUCTION Criminal courts impose “restitution” as punishment. Both the manner in which courts impose criminal “restitution” and the implications of failing to pay it illustrate the remedy’s increasingly punitive character.1 Unlike restitution proper, what is called “restitution” in criminal proceedings usually is compensation to victims, not the disgorgement of unlawful gains or unjust enrichment. In fact, criminal “restitution” rarely involves disgorgement or even tangible gain to the defendant; it often contemplates only compensation for victim losses. Through “restitution,” courts order criminal defendants to compensate a victim’s tangible and intangible, current and future losses, without any clear instruction as to how to calculate those losses. The broadly conceived “restitution” in the criminal context now requires criminal defendants to make monetary amends to crime victims by paying for any losses those victims attribute to the commission of the crime. Rather than preventing defendants from obtaining an unjust enrichment, criminal “restitution” primarily aims to make the victim “whole.” The consequences of failing to pay criminal “restitution” mirror those of other criminal punishments. Once a court imposes “restitution” as part of a criminal sentence, a defendant’s failure to pay it results in the same collateral consequences that attach to other criminal sentences, including continued disenfranchisement, preclusion from running for office, disqualification from jury service, suspension of one’s driver’s license, and even further incarceration. In fact, criminal defendants often end up incarcerated for a longer period of time due to a failure to pay a restitution obligation than for their original sentence.2 Although criminal “restitution” certainl (...truncated)


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Cortney E. Lollar. Punitive Compensation, Tulsa Law Review, 2015, Volume 51, Issue 1,