I do not, however, intend in this place to concern myself with
indemnification from the first point of view, namely, the forms of
procedure necessary to render it more strict and effectual, such
as the official demand and execution by the Public Prosecutor,
even when no action is brought by the injured party; the fixing of
the damages in every penal sentence; the immediate lien and claim
upon the goods of the condemned person, so as to avoid the
pretence of inability to pay; the paying down of the sum, or a
part of the salary or wages of solvent defendants; compulsory
labour by those unable to pay; the assignment of part of the
prison wages for the benefit of the victims; the payment of all or
most of the damages as a necessary condition of pardon or
conditional release; the establishment of a treasury of fines for
prepayment to the family of the victims; the liability of the
heirs of the condemned persons for indemnifications, and so forth.
All these propositions are in sharp contrast with Art. 37 of the
new Italian penal code, which has given no other guarantee to the
victims of offences than the superfluous, or ironical, or immoral
declaration that ``penal condemnation does not prejudice the right
of the injured person to restitution and indemnification''--as
though there were any doubt of the fact.
I only wish to insist on the question of principle, that is, on
the essentially public character which we assign to
indemnification as a social function. For us, to compare the
liability of the criminal to repair the loss caused by his crime
with the liability arising from breach of contract is simply
immoral.
<p 222>
Crime, just as it implies a social reaction in the form of an
indefinite segregation of the criminal, when the act is serious
and the author dangerous, ought also to imply a social reaction in
the shape of indemnification, accessory to segregation when that
is necessary, or adequate by itself for social defence when the
act is not serious, and the author is not dangerous. For slight
offences by occasional criminals, strict indemnification will, on
the one hand, avoid the disadvantages of short terms of
imprisonment, and will, on the other hand, be much more
efficacious and sensible than an assured provision of food and
shelter, for a few days or weeks, in the State prisons.
Indemnification may naturally take two forms, as a fine or an
indemnity payable to the State, and as an indemnity or a
reparation payable to the injured person.
It may also be added that the State should be made responsible for
the rights of the victims, and give them immediate satisfaction,
especially for crimes of violence, recouping itself from the
offender, as it does, or ought to do, for legal costs.
Public-domain text, read in full here on John Shaqi.
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