The Vengeful Logic of Modern Criminal Restitution

Abstract

Restitution, a perpetual presence in the life of the law, dwells on the margins of our modern legal landscape, and invokes a pre-legal moment in which injured parties bore the responsibility-or the privilege of themselves remedying the harms committed against them. This article explores the criminal sanction of restitution, and particularly restitution's surprising relationship with revenge. Rather than regarding bloodlust and the desire to cause suffering in those who first made us suffer as revenge's sine qua non, I argue that just as essential to revenge is a nostalgia for a prehistorical and prelegal time in which being wronged was an occasion not for recourse to the law, but for action. The article examines two distinct but related sites of restitutive justice within the contemporary criminal justice system where this fantasy of agency plays out. First turning to the victims'rights movement, observing that the movement has become ossified in a punitive logic that belies its pretensions toward a victim centered paradigm, the article then looks at the kinder, gentler restorative justice movement, which values rehabilitation and reintegration but is motivated as well by a vengeful impulse. The place of restitution in these movements emerges as the instantiation of a doubled fantasy of return to a state of equilibrium: on a leveled playing field occupied by wrongdoer and wronged, liberated from law's domination, a struggle between equals can result in the natural justice of a wrong repaid. This fantasy is born of nostalgia for an economy of revenge that exists only as an illusory ideal of agency vis-a`-vis those who wrong us, forever (or at least for now) kept at arm's distance by virtue of its institutionalization within a state that seeks to preserve its monopoly on force.