Focus on Victim Justice: A “Sea Change” for the Federal Court System
Many reforms proposed for the federal court system have goals of reducing pretrial detention, plea-bargaining abuses, lowering the prison population, and reducing the high rate in which released prisoners are again arrested, plead guilty, and returned to prison.
Left out of most proposed reforms are the actual victims of assault, theft, and robbery, etc.. They are victimized first when assaulted, robbed, or otherwise harmed by wrong-doers. Then they pay taxes to fund America’s huge and costly prisons and criminal justice system.
Economist Bruce Benson, in “Let’s Focus on Victim Justice, Not Criminal Justice,” (Independent Review, Fall, 2014) proposes a “sea change” for the federal criminal justice and court systems: a focus on compensating crime victims:
A true sea change would occur with decriminalization and a change in the focus of the entire “criminal justice” system— away from punishing criminals toward “victim justice” through compensation for victims. This essay proposes this very sea change, explores its feasibility, considers the institutional changes that would accompany it, and outlines its substantial benefits.
Benson advocates a sweeping decriminalization, but notes:
Decriminalization does not mean legalization when there is an identifiable victim. Violent and property offenses were not always crimes, but they have always been illegal. Before criminal law, they were treated as offenses against individuals (intentional torts) rather than as offenses against “society,” the king, or the state (crimes) … Successful prosecution resulted in compensation to victims (restitution) rather than in fines or confiscations going to the state, physical punishment, and/or imprisonment.
Bruce Benson past journal articles and books have focused on the history and economics of legal systems before and outside the criminal justice system.
An earlier blog post, “Restorative Justice for Federal Court Reform” outlined the arguments for legal procedures to provide justice to victims, and finding ways for those convicted to engage in the process of providing this restoration.
Desmond Tutu in this one-minute video, explains restorative justice as an alternative to retribution, or punishment, as central legal principle.
However, an article I recently coauthored with Brian J. Osoba, “Youth Gangs as Pseudo-Governments: Implications for Violent Crime,” calls this conventional wisdom into question.1 Our analysis suggests not that gangs cause violence, but that violence causes gangs. In other words, gangs form in response to government’s failure to protect youths against violence. The surprising implication of our insight is that efforts to reduce gang activity could actually increase violent crime.
The explanation for this seeming paradox derives from well-established economic theories on how and why governments evolve from situations of anarchy.2 That literature suggests that within a society without law and order, individuals are under constant threat of being victims of aggression and crime, and small “gangs” evolve to provide protection services to people. By forming groups, people who cannot protect themselves individually can be more secure; an attack on a single member would result in group retaliation. In other words, individuals form gangs for the same reason that national governments form mutual defense alliances such as NATO.
Decriminalization also implies that public institutions currently involved in criminal justice would not have responsibility for pursuit, prosecution, or punishment. Instead, victims would seek compensation for harms they suffer, as in modern tort law. To do so, they would call upon mutual support arrangements and/or employ specialized individuals or firms, assuming true “privatization” of justice is allowed.
Private provision of security and adjudication of disputes has grown and developed rapidly across the United States in recent decades. Bruce Benson begins with a discussion of private provision of security services (an alternative to government police).
Table 1 indicates that over a little less than five decades U.S. employment by private firms specializing in protective and detective services increased by 1,177 percent, and the number of firms offering such services grew by 1,180 percent. The growth in the private-security market was more rapid through the last four decades of the twentieth century than it has been since then, presumably in part because of the rising crime rates that characterized much of the period before the early 1990s.
The private-security market also has grown rapidly relative to public police. A 1970 estimate reported that the number of privately employed proprietary and contractual security personnel was roughly equal to the number of public police, but by 1983 there reportedly were more than twice as many private-security per- sonnel as public police (Reichman 1987, 247). A 1991 study reported a private- security/public-police ratio of about 2.5 (Cunningham, Strauchs, and Van Meter 1990). In 2004, Elizabeth Joh contended that there were three private-security employees to every public-police officer.
Private security services may seem off-topic to students researching the federal court system, but they are related, and serve an introduction to a discussion of a similar expansion of private court systems.
Bruce Benson’s article provides much more discussion of private security and general deterrence (Stage 1), then moves to discussion of “Stage 2: Private Reporting of Offenses,” and then “Stage 3: Private Investigation and Pursuit” and “Stage 4: Private Prosecution,” and “Stage 5: Private Adjudication.”
Civil dispute resolution has been shifting into formal private forums for some time. Commercial arbitration has a long history and is growing in importance (Benson 1995, 2000). A significant entrepreneurial innovation also has developed and spread over the past few decades, creating a new industry. In 1976, California had a public-court backlog of seventy thousand cases, with a median pretrial delay of 50.5 months (Poole 1980, 2)
Two lawyers who wanted a complex case settled quickly found a retired judge with expertise in the area, paid him attorney’s fee rates to resolve it, and saved their clients a tremendous amount of time and expense. This idea was quickly imitated and improved upon. By 2000, it was clear that “[p]rivate judging is a big business nationally, but nowhere more so than in California, where more than 500 former public judges, including six former justices of the state Supreme Court, are listed in directories as seeking private judging assignments” (Rohrlich 2000). The first private for-profit firm offering trials, Judicial Arbitration and Mediation Services Company (JAMS), was started in 1979 by a retired California state trial judge. It has become the largest firm in a rapidly expanding market, with offices in twenty-six U.S. cities, five European cities, and one Canadian city. JAMS has more than 300 full-time “neutrals” (retired judges) plus 195 employee associates and on average twelve thousand cases annually, dealing with issues involving antitrust, bankruptcy, employment, engineering and construction, entertainment and sports, the environment, family, financial markets, government, health care, insurance, intellectual property, partnerships, personal injury, probate, product liability, real estate, trusts and estates, and more.1
If decriminalization and a focus on restitution occur, making the issue one of determining damages rather than punishment, private judging will quickly be offered. Under a restitution system, the number of available courts could expand dramatically. Whereas plaintiffs often can choose a court jurisdiction in public courts, both parties to a dispute must agree to use a particular private court. Damage awards will be determined by these competitive courts, so the likelihood of either excessive or insufficient restitution should be relatively low. Courts with a reputation for favoring one party or the other will not attract business because both parties must agree to use the court.