Restitution, Clemency, and the Price of Accountability
Most people agree on the basic idea of restitution. If someone causes harm, they should be required to make it right. Return what was taken. Cover medical bills. Repair the damage. In theory, restitution is meant to prioritize accountability and repair over punishment. It was designed as a system meant to make people whole.
In practice, it rarely does.
A recent report from the National Association of Criminal Defense Lawyers shows how far the U.S. restitution system has drifted from that goal. What was created to make people whole now often functions as another layer of punishment. The report identifies serious problems, including weak due-process protections, payment rules that disregard a person’s ability to pay, and enforcement practices that deepen harm rather than repair it. Regardless of where one falls in debates over punishment or rehabilitation, one basic question remains unanswered: Where does the money actually go?
Many people assume restitution moves directly from the person who caused harm to the person who experienced it. That assumption is incorrect. In most cases, payments go first to the state. From there, funds are placed into centralized accounts and distributed according to timelines that vary widely by jurisdiction. Transparency is limited, and consistency is rare.
Who actually receives restitution is often surprising. While many imagine survivors of violence or fraud being made whole, federal agencies are labeled the “victim” in roughly 40 percent of federal restitution cases. Tax-related offenses account for a significant share. In many of the remaining cases, restitution is paid to state agencies, corporations, or insurance companies.
This structure has real consequences. A person can be ordered to make restitution payments for decades, not to an individual who was harmed, but to a large corporate entity such as an insurance provider. These companies already operate on a model in which monthly payments are collected in exchange for coverage. If no issues arise, no refund is issued. Restitution adds another layer, allowing corporations to be paid again, while both the person making payments and those who experienced harm continue to struggle.
That is, assuming payment is even possible. Judges are often prohibited from considering a person’s ability to pay when ordering restitution. The system defaults to punishment, pushing people deeper into debt and increasing the likelihood of incarceration. People can be jailed for failure to pay. When that happens, restitution is delivered to no one. Not individuals. Not corporations. Not even the state. Of the estimated $110 billion in outstanding restitution debt nationwide, roughly $100 billion is considered uncollectible.
The government, however, almost always finds a way to collect. The state acts as a creditor, garnishing wages, monitoring financial decisions, seizing property, and adding interest and late fees. In some jurisdictions, unclaimed restitution is retained by the state itself. Because government agencies are frequently designated recipients, the state often collects money from individuals it has already incarcerated or financially destabilized.
Restitution now sits in an uneasy space between repair and punishment, and in practice it overwhelmingly serves the latter. Courts are increasingly forced to confront this contradiction. Is restitution meant to repair harm, or does it function as a long-term system of financial control that allows the state to extract resources long after a prison sentence ends?
Abolitionist perspectives offer a different way of thinking about accountability. They do not reject responsibility for harm. They demand more of it. A system focused on repair would require people who cause harm to address it in meaningful ways, whether through direct repayment, community repair, or service tied to their actual ability. Abolition challenges a system that multiplies suffering while failing to deliver healing.
This tension becomes especially clear in public reactions to clemency. Anger often follows the release of wealthy or politically connected individuals, particularly when freedom comes quickly and without visible accountability. That reaction is not a contradiction. It reflects a shared understanding that accountability is being applied unevenly.
Clemency, when used to correct wrongful convictions or extreme sentencing, can be a powerful tool for repair. When it is granted to the wealthy without any real obligation to make amends, it becomes something else entirely. It becomes an escape from accountability. The contrast between people who spend decades incarcerated for minimal involvement in harm and those who secure release through money or influence reveals one of the system’s deepest failures.
A restorative approach would ask different questions. What harm was caused? Who was impacted? What would it take to repair that harm without relying on incarceration or lifelong debt? Why are those with the greatest resources so often allowed to walk away without giving anything back to the communities they harmed?
Restorative justice does not mean the absence of consequences. It means consequences that are constructive, proportional, and focused on repair rather than revenge. Returning ill-gotten wealth to communities would be one such consequence. Financial accountability without imprisonment is possible. What exists today is something very different.
Anger at this system is not hypocrisy. It is a rational response to a structure that profits from punishment, protects those with power, and traps those with the least. If restitution is to mean anything at all, it must be removed from the machinery of punishment and profit and returned to its original purpose.
Until then, the question remains: Who is restitution really for?
- J. Kingely (FIW, TNC member since 2021)
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This blog serves as a platform for members of The National Council for Incarcerated and Formerly Incarcerated Women and Girls (TNC) to share their thoughts, ideas, work, experiences, and creative expression. Occasionally, third-party content is also shared on this platform. The views and opinions expressed in individual submissions and third-party pieces are those of the contributing authors and do not necessarily reflect the official opinions, policies, positions, or perspectives of The National Council, its leadership, members, or partners.
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