Restitution's Outlaws

The usual assertion that "restitution is not punitive" is true in the important sense that liability in restitution does not exceed the defendant's enrichment: enhanced or exemplary liability is foreign to this area of the law. On the other hand, restitution incorporates an unmistakably punitive aspect that is given effect in a different fashion: not by enhancing the liability of a disfavored defendant, but by denying relief to a disfavored claimant. The traditional explanation of such outcomes (by recitation of English and Latin maxims) has tended to obscure the extent and the consistency of the law's punitive response.