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.
Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev. 99 (2015).