In the case of simple theft, estimating restitution is fairly easy. But how about armed robbery? How much is being threatened with death unless one pays up worth? How about murder? Assault that results in a permanent injury to the body? What if the amount of restitution has been calculated to be very high, but the criminal has already spent the looted money and is now poor? I think the legal system has to do the best it can in figuring restitutions, while being aware of the limits to its power to heal the victim.
There is still a tension here between the points of view of the legislator and the judge. The range of punishment set by the lawmaker is supposed to take away any remaining after restitution profit to the criminal of wrongdoing plus something extra to compensate for imperfect detection and to contain the costs of the justice system. (For example, a typical city might have a 2% income tax. It cannot up and raise the tax to 20% in order to pay for more investigators; first, property values would tank and second, people would start moving out in droves.) The judge has our 4 theories to juggle. But shouldn’t the judge just use his discretion to assist the legislator in his rationale for punishing?
In effect, in promulgating a penal code, the legislator aims to minimize the combined cost of
- crime to the victims,
- punishments to the criminals, and
- the justice system itself including investigations and enforcement such as prisons.
We normally want the crime rate to be low; punishments, mild; and taxes used to finance the essential activities of the city’s executive branch, low. (Punishments should be minimal; imagine your son steals an apple; you wouldn’t want him sentenced to 20 to life, would you? I mean, we are not barbarians, are we?) However, these are dependent variables, and improving one can worsen the other. For example, if (3) more money is allocated by the city toward execution of justice, then this will cause more criminals to be caught, thereby (1) deterring the rest of their brethren more efficiently. This in turn will mean that (2) the severity of punishments may have to be lessened, (1) decreasing deterrence slightly, if our utilitarian approach is to be satisfied.
How do this way of making law and judge-made punishments fit together? I think the Good Lord has given us humans 2 ways of laying down the legal system: top down by the legislature and bottom up by the judicial branch. The former is more sophisticated but harder to implement correctly. The latter is less clever but more tractable.