Getting even: Restitution, preventive detention, and the tort/crime distinction

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 157-167

  Barnett, Randy E ^a  

^a NONE

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EID: 0041875906     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (35)

1. Stephen J. Morse, Blame and Danger: An Essay on Preventive Detention, 76 B.U. L. REV. 113 (1996).
2. Id. at 121.
3. Id.
4. Id.
5. Id. at 123.
6. Id. at 114.
7. See Randy E. Barnett, Restitution: A New Paradigm of Criminal Justice, 87 ETHICS 279 (1977).
8. See Randy E. Barnett & John Hagel III, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 1 (Randy E. Barnett & John Hagel III eds., 1977); Randy E. Barnett, The Justice of Restitution, 25 AM. J. JURIS. 117 (1980); Randy E. Barnett, Pursuing Justice in a Free Society: Part Two - Crime Prevention and the Legal Order, CRIM. JUST. ETHICS, Winter/Spring 1986, at 30; see also Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937 (1983) (assessing the deterrent effects of a restitutive alternative to the exclusionary rule).
9. See Randy E. Barnett & John Hagel III, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 1 (Randy E. Barnett & John Hagel III eds., 1977); Randy E. Barnett, The Justice of Restitution, 25 AM. J. JURIS. 117 (1980); Randy E. Barnett, Pursuing Justice in a Free Society: Part Two - Crime Prevention and the Legal Order, CRIM. JUST. ETHICS, Winter/Spring 1986, at 30; see also Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937 (1983) (assessing the deterrent effects of a restitutive alternative to the exclusionary rule).
10. See Randy E. Barnett & John Hagel III, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 1 (Randy E. Barnett & John Hagel III eds., 1977); Randy E. Barnett, The Justice of Restitution, 25 AM. J. JURIS. 117 (1980); Randy E. Barnett, Pursuing Justice in a Free Society: Part Two - Crime Prevention and the Legal Order, CRIM. JUST. ETHICS, Winter/Spring 1986, at 30; see also Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937 (1983) (assessing the deterrent effects of a restitutive alternative to the exclusionary rule).
11. See Randy E. Barnett & John Hagel III, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 1 (Randy E. Barnett & John Hagel III eds., 1977); Randy E. Barnett, The Justice of Restitution, 25 AM. J. JURIS. 117 (1980); Randy E. Barnett, Pursuing Justice in a Free Society: Part Two - Crime Prevention and the Legal Order, CRIM. JUST. ETHICS, Winter/Spring 1986, at 30; see also Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 EMORY L.J. 937 (1983) (assessing the deterrent effects of a restitutive alternative to the exclusionary rule).
12. See, e.g., Richard C. Boldt, Restitution, Criminal Law, and the Ideology of Individuality, 77 J. CRIM. L. & CRIMINOLOGY 969 (1986); Margaret R. Holmgren, Punishment as Restitution: The Rights of the Community, CRIM. JUST. ETHICS, Winter/Spring 1983, at 36; Roger Pilon, Criminal Remedies: Restitution, Punishment, or Both?, 88 ETHICS 348 (1978).
13. See, e.g., Richard C. Boldt, Restitution, Criminal Law, and the Ideology of Individuality, 77 J. CRIM. L. & CRIMINOLOGY 969 (1986); Margaret R. Holmgren, Punishment as Restitution: The Rights of the Community, CRIM. JUST. ETHICS, Winter/Spring 1983, at 36; Roger Pilon, Criminal Remedies: Restitution, Punishment, or Both?, 88 ETHICS 348 (1978).
14. See, e.g., Richard C. Boldt, Restitution, Criminal Law, and the Ideology of Individuality, 77 J. CRIM. L. & CRIMINOLOGY 969 (1986); Margaret R. Holmgren, Punishment as Restitution: The Rights of the Community, CRIM. JUST. ETHICS, Winter/Spring 1983, at 36; Roger Pilon, Criminal Remedies: Restitution, Punishment, or Both?, 88 ETHICS 348 (1978).
15. Barnett, supra note 7, at 299.
16. Id.
17. Morse, supra note 1, at 146.
18. See, e.g., ILL. ANN. STAT. ch. 720, para. 5/12-1 (Smith-Hurd 1993).
19. Id. para. 5/7-1.
20. Id. para. 5/7-2.
21. Id. para. 5/7-3.
22. Advocates of a battered woman's defense would extend the right of self-defense much further.
23. Note that self-defense may also be warranted against some accidental or nonintentional threats.
24. Third parties sometimes stand in a different relationship to victims in asserting the right to use force in defense of others. For example, whereas a person who has previously committed a criminal act may know that the person afterwards confronting him is acting in self-defense, bystanders may reasonably assume that the victim is actually an aggressor. Those engaging in self-defense assume the risk that their actions will manifest an intention to violate the rights of another, even though this is not the case. As George Smith writes: [T]he user of unidentified violence, innocent or not, sends the message of "Invader" to the public in general. A Third Party, therefore, acting on the signal generated by the apparent Invader, is justified in exercising his primary right of defensive violence. Again, it is not just the reasonableness of the Third Party that exonerates him, but the fact that his belief is triggered by the violent actions of the apparent Invader. George H. Smith, A Reply to Critics, 3 J. LIBERTARIAN STUD. 453, 458 (1979). This notion is akin to the objective theory of assent in contract law and to apparent authority in agency law. See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 855-59 (1992) (discussing the basis of the objective theory); Randy E. Barnett, Squaring Undisclosed Agency Law With Contract Theory, 75 CAL. L. REV. 1969, 1994-97 (1987) (discussing apparent authority in agency law).
25. Third parties sometimes stand in a different relationship to victims in asserting the right to use force in defense of others. For example, whereas a person who has previously committed a criminal act may know that the person afterwards confronting him is acting in self-defense, bystanders may reasonably assume that the victim is actually an aggressor. Those engaging in self-defense assume the risk that their actions will manifest an intention to violate the rights of another, even though this is not the case. As George Smith writes: [T]he user of unidentified violence, innocent or not, sends the message of "Invader" to the public in general. A Third Party, therefore, acting on the signal generated by the apparent Invader, is justified in exercising his primary right of defensive violence. Again, it is not just the reasonableness of the Third Party that exonerates him, but the fact that his belief is triggered by the violent actions of the apparent Invader. George H. Smith, A Reply to Critics, 3 J. LIBERTARIAN STUD. 453, 458 (1979). This notion is akin to the objective theory of assent in contract law and to apparent authority in agency law. See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 855-59 (1992) (discussing the basis of the objective theory); Randy E. Barnett, Squaring Undisclosed Agency Law With Contract Theory, 75 CAL. L. REV. 1969, 1994-97 (1987) (discussing apparent authority in agency law).
26. Third parties sometimes stand in a different relationship to victims in asserting the right to use force in defense of others. For example, whereas a person who has previously committed a criminal act may know that the person afterwards confronting him is acting in self-defense, bystanders may reasonably assume that the victim is actually an aggressor. Those engaging in self-defense assume the risk that their actions will manifest an intention to violate the rights of another, even though this is not the case. As George Smith writes: [T]he user of unidentified violence, innocent or not, sends the message of "Invader" to the public in general. A Third Party, therefore, acting on the signal generated by the apparent Invader, is justified in exercising his primary right of defensive violence. Again, it is not just the reasonableness of the Third Party that exonerates him, but the fact that his belief is triggered by the violent actions of the apparent Invader. George H. Smith, A Reply to Critics, 3 J. LIBERTARIAN STUD. 453, 458 (1979). This notion is akin to the objective theory of assent in contract law and to apparent authority in agency law. See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 855-59 (1992) (discussing the basis of the objective theory); Randy E. Barnett, Squaring Undisclosed Agency Law With Contract Theory, 75 CAL. L. REV. 1969, 1994-97 (1987) (discussing apparent authority in agency law).
27. See, e.g., H.H. JOACHIM, ARISTOTLE: THE NICOMACHEAN ETHICS 85 (1951) ("If you attribute to a man, for example, knowledge or bravery, you are qualifying him under that type of quality which Aristotle calls [hexis]. For to be learned, or to be brave implies that certain natural capacities . . . have become established conditions - a second nature, or habit, of the soul."); see also Martin Ostwald, Glossary of Technical Terms, in ARISTOTLE, NICOMACHEAN ETHICS 308-09 (Martin Ostwald trans., 1962): hexis []: CHARACTERISTIC, also TRAINED ABILITY, CHARACTERISTIC CONDITION, CHARACTERISTIC ATTITUDE. A noun . . . designating a firmly fixed possession of the mind, established by repeated and habitual action. Once attained, it is ever present, at least in a potential form. . . . '[H]abit' has often been used as an English equivalent. The idea of a "second" nature that some persons acquire by habitual action, in contrast with a "first" nature that is common to all human beings by virtue of their being human, derives from Aristotle's analysis of virtue and vice in the Nicomachean Ethics. According to Aristotle, virtues - and their opposites, vices - are not part of our natures. "[T]he virtues are implanted in us neither by nature nor contrary to nature: we are by nature equipped with the ability to receive them, and habit brings this ability to completion and fulfillment." Id. at 33. These virtuous or vicious habits are a type of skill or characteristic that can be acquired only by action. [I]t is from playing the lyre that both good and bad lyre-players are produced. And the corresponding statement is true of builders and of all the rest; men will be good or bad builders as a result of building well or badly. . . . This, then, is the case with the virtues also; by doing the acts that we do in our transactions with other men we become just or unjust, and by doing the acts that we do in the presence of danger, and being habituated to feel fear or confidence, we become brave or cowardly. The same is true of appetites and feelings of anger; some men become temperate and good-tempered, others self-indulgent and irascible, by behaving in one way or the other in the appropriate circumstances. Thus, in one word, states of character [hexis] arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. Aristotle, Nicomachean Ethics (W.D. Ross trans.), in THE BASIC WORKS OF ARISTOTLE 952-53 (Richard McKeon ed., 1941). The idea that action begets virtue is perhaps clearer in Ostwald's translation of the last two sentences: "In a word, characteristics [hexis] develop from corresponding activities. For that reason, we must see to it that our activities are of a certain kind, since any variations in them will be reflected in our characteristics." Ostwald, supra, at 34.
28. See, e.g., H.H. JOACHIM, ARISTOTLE: THE NICOMACHEAN ETHICS 85 (1951) ("If you attribute to a man, for example, knowledge or bravery, you are qualifying him under that type of quality which Aristotle calls [hexis]. For to be learned, or to be brave implies that certain natural capacities . . . have become established conditions - a second nature, or habit, of the soul."); see also Martin Ostwald, Glossary of Technical Terms, in ARISTOTLE, NICOMACHEAN ETHICS 308-09 (Martin Ostwald trans., 1962): hexis []: CHARACTERISTIC, also TRAINED ABILITY, CHARACTERISTIC CONDITION, CHARACTERISTIC ATTITUDE. A noun . . . designating a firmly fixed possession of the mind, established by repeated and habitual action. Once attained, it is ever present, at least in a potential form. . . . '[H]abit' has often been used as an English equivalent. The idea of a "second" nature that some persons acquire by habitual action, in contrast with a "first" nature that is common to all human beings by virtue of their being human, derives from Aristotle's analysis of virtue and vice in the Nicomachean Ethics. According to Aristotle, virtues - and their opposites, vices - are not part of our natures. "[T]he virtues are implanted in us neither by nature nor contrary to nature: we are by nature equipped with the ability to receive them, and habit brings this ability to completion and fulfillment." Id. at 33. These virtuous or vicious habits are a type of skill or characteristic that can be acquired only by action. [I]t is from playing the lyre that both good and bad lyre-players are produced. And the corresponding statement is true of builders and of all the rest; men will be good or bad builders as a result of building well or badly. . . . This, then, is the case with the virtues also; by doing the acts that we do in our transactions with other men we become just or unjust, and by doing the acts that we do in the presence of danger, and being habituated to feel fear or confidence, we become brave or cowardly. The same is true of appetites and feelings of anger; some men become temperate and good-tempered, others self-indulgent and irascible, by behaving in one way or the other in the appropriate circumstances. Thus, in one word, states of character [hexis] arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. Aristotle, Nicomachean Ethics (W.D. Ross trans.), in THE BASIC WORKS OF ARISTOTLE 952-53 (Richard McKeon ed., 1941). The idea that action begets virtue is perhaps clearer in Ostwald's translation of the last two sentences: "In a word, characteristics [hexis] develop from corresponding activities. For that reason, we must see to it that our activities are of a certain kind, since any variations in them will be reflected in our characteristics." Ostwald, supra, at 34.
29. See, e.g., H.H. JOACHIM, ARISTOTLE: THE NICOMACHEAN ETHICS 85 (1951) ("If you attribute to a man, for example, knowledge or bravery, you are qualifying him under that type of quality which Aristotle calls [hexis]. For to be learned, or to be brave implies that certain natural capacities . . . have become established conditions - a second nature, or habit, of the soul."); see also Martin Ostwald, Glossary of Technical Terms, in ARISTOTLE, NICOMACHEAN ETHICS 308-09 (Martin Ostwald trans., 1962): hexis []: CHARACTERISTIC, also TRAINED ABILITY, CHARACTERISTIC CONDITION, CHARACTERISTIC ATTITUDE. A noun . . . designating a firmly fixed possession of the mind, established by repeated and habitual action. Once attained, it is ever present, at least in a potential form. . . . '[H]abit' has often been used as an English equivalent. The idea of a "second" nature that some persons acquire by habitual action, in contrast with a "first" nature that is common to all human beings by virtue of their being human, derives from Aristotle's analysis of virtue and vice in the Nicomachean Ethics. According to Aristotle, virtues - and their opposites, vices - are not part of our natures. "[T]he virtues are implanted in us neither by nature nor contrary to nature: we are by nature equipped with the ability to receive them, and habit brings this ability to completion and fulfillment." Id. at 33. These virtuous or vicious habits are a type of skill or characteristic that can be acquired only by action. [I]t is from playing the lyre that both good and bad lyre-players are produced. And the corresponding statement is true of builders and of all the rest; men will be good or bad builders as a result of building well or badly. . . . This, then, is the case with the virtues also; by doing the acts that we do in our transactions with other men we become just or unjust, and by doing the acts that we do in the presence of danger, and being habituated to feel fear or confidence, we become brave or cowardly. The same is true of appetites and feelings of anger; some men become temperate and good-tempered, others self-indulgent and irascible, by behaving in one way or the other in the appropriate circumstances. Thus, in one word, states of character [hexis] arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. Aristotle, Nicomachean Ethics (W.D. Ross trans.), in THE BASIC WORKS OF ARISTOTLE 952-53 (Richard McKeon ed., 1941). The idea that action begets virtue is perhaps clearer in Ostwald's translation of the last two sentences: "In a word, characteristics [hexis] develop from corresponding activities. For that reason, we must see to it that our activities are of a certain kind, since any variations in them will be reflected in our characteristics." Ostwald, supra, at 34.
30. Morse, supra note 1, at 147.
31. Recall that "[a] person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against [the] imminent use of unlawful force." ILL. ANN. STAT. ch. 720, para. 5/7-1 (Smith-Hurd 1993).
32. To this might be added the person who recklessly endangers another, as suggested by Professor Morse. See Morse, supra note 1, at 152-54.
33. See Randy E. Barnett, Foreword: Can Justice and the Rule of Law Be Reconciled?, 11 HARV. J.L. & PUB. POL'Y 597, 623 (1988) (contending that adherence to the liberal conception of the rule of law disseminates knowledge of what the liberal conception of justice requires so that people can act justly).
34. Professor Nance notes: The substantive norms that form the corpus of criminal law represent a collective judgment, however misguided at particular points, about the most serious duties whose breach must be suppressed. It is this fact that justifies both the severity of the sanctions associated with criminal conviction and - by way of the principle of civility - the allocation of a strenuous burden of proof to the prosecution. If this were not so, it would be much harder to explain the significant doctrinal divergences from the proposition that criminal proof burdens apply if and only if sanctions involving loss of liberty are at stake. Even those cases that draw upon the nature and severity of the sanction to be applied in determining the applicable burden of proof emphasize not only the defendant's potential loss of "life, liberty, or property," the relevant constitutional terms, but also the stigma associated with a determination of criminal behavior. This stigma, to be independently significant, must be attributable not to the severity of the formal sanctions but rather to the seriousness of the alleged criminal acts and to ancillary consequences attached thereto because of their seriously wrongful character. It is, in part, the need to be reasonably sure before we impose this kind of stigma, together with the material sanctions, that serves to justify the peculiarly high burdens of proof on the prosecution. Dale A. Nance, Civility and the Burden of Proof, 17 HARV. J.L. & PUB. POL'Y 647, 656-57 (1994) (emphasis added) (footnotes omitted).
35. Id. at 648 (footnote omitted).