Punitive Compensation
Cortney E. Lollar, Punitive Compensation
Punitive Compensation
Cortney E. Lollar
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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.
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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)