A transatlantic perspective on the compensation of crime victims in the United States.

• Author: Greer, Desmond S.

1. INTRODUCTION

   Lawmakers in the United States have enacted legislation providing for financial assistance to victims of crime since 1965, when the California State Legislature enacted the first state program.(1) The first attempt to secure similar legislation on the federal level was also made in 1965. However, that bill, like many subsequent proposals, failed to secure the support of both Houses of Congress.(2) By 1982, just over two-thirds of the states had adopted compensation programs of one kind or another, but Congress had still failed to pass legislation on this matter.(3) Eventually, the President's Task Force on Victims of Crime reviewed the developments in the states and reached the following conclusion:

   [S]ubstantial progress has been made by many states in their attempts to

   compensate crime victims .... However, the states' inability to fully address

   the problems that persist suggest [sic] that there is an important

   role for the federal government to play in this area.(4) Accordingly, the Task Force recommended that the United States Congress "should enact legislation to provide federal funding to assist state crime victim compensation programs" as part of a general strategy to develop "comprehensive assistance to all victims of crime."(5) The prominence of the victims movement in the early 1980s secured a favorable reception for this recommendation, and in 1984 Congress enacted the Victims of Crime Acts (VOCA).(6) VOCA established a federal office responsible for developing the rights of victims generally and in particular for providing supplementary federal funding for state victim assistance programs through a newly created Crime Victims Fund. VOCA support began in 1986 for compensation programs which satisfied certain statutory requirements.(7) By 1992, as a result of this initiative and the continuing concern for victims at the state level, every state had enacted a compensation program.(8)

   The early stages of these developments were influenced by the provisions of the Criminal Injuries Compensation Scheme introduced in Great Britain in 1964.9 That Scheme, too, has undergone a number of changes over the years--and indeed is currently facing its most rigorous re-examination.(10) In both countries, therefore, the original ideas and philosophies underlying the initial "experiment" have been refined and developed in the light of almost thirty years of experience.

   The purpose of this article is to review the current compensation programs in both the United States and Britain with reference to such questions as: the extent of a victim's "right" to compensation; how the concept of a victim has changed over the years; when victims become disentitled to compensation or liable to have their compensation reduced; what is meant by "compensation," where the money comes from, and the extent to which there is an "unmet need" for compensation. The expectation is that such an analysis will produce findings of relevance for the future development of criminal injuries compensation in both jurisdictions.

2. THE "RIGHT" TO COMPENSATION

   The British Scheme introduced in 1964 was--and still remains--a constitutional and legal oddity. It is not embodied in legislation,(11) and it states only that the Criminal Injuries Compensation Board "will entertain applications for ex gratia payments of compensation."(12) In theory, the state accepts no legal liability for criminal injuries suffered by its citizens,(13) and the courts have described the Board as "a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown."(14) In reality, the Board members "are instructed and compelled to make payments to all who come within the ambit of the Scheme."(15) Any failure to do so may be challenged in the courts.(16) Thus, for all practical purposes, a crime victim in Britain has a legally enforceable right to compensation.

   The position in the United States does not appear to be so clearcut. Although compensation programs are invariably statutory, state legislatures tend to accept that they have, at most, a "moral responsibility" to assist crime victims.(17) The Florida program provides a typical example:

   The Legislature recognizes that many innocent persons suffer personal

   injury or death as a direct result of adult and juvenile criminal acts or in

   their efforts to prevent crime or apprehend persons committing or attempting

   to commit adult and juvenile crimes. Such persons or their

   dependents may thereby suffer disabilities, incur financial hardships or

   become dependent upon public assistance. The Legislature finds and

   determines that there is a need for government financial assistance for

   such victims of adult and juvenile crime. Accordingly, it is the intent of

   the Legislature that aid, care, and support be provided by the state, as a

   matter of moral responsibility, for such victims of adult and juvenile

   crime.(18) Alternatively, legislation may declare that state assistance is "in the public interest" or necessary "to promote the public welfare," or "a stronger criminal justice system" or that it simply recognizes the need of victims for indemnification.(19) However, legislators rarely, if ever, argue that compensation legislation is necessary to meet the legal obligation of the state or the legal entitlement of the victim. Generally, compensation provisions give the Board discretion to compensate victims of crime. They state that a Board may pay compensation in accordance with the terms of the program(20) or explain that "the Board is not compelled to provide compensation in any case."(21) The courts, too, tend to come to the same conclusion,(22) though a different view is occasionally expressed: "once a claimant ... [has] met the statutory qualifications set forth in [the Act] for an award[,] he possesse[s] a sufficient `personal right' and eligibility to the benefits ... and as an aggrieved party [is] entitled to ... judicial examination of the action of the Board . . . . "(23) Further, no case has been found in which a Board--or a court--has held that a person who satisfies the terms of a program may properly be refused compensation. It would appear, therefore, that American victims have, in practice, just as strong a "right" to compensation as their British counterparts--with one exception: Many programs expressly provide that the payment of an award is subject to the availability of funds; if sufficient funds are not available, the Board is permitted--or indeed required--to make a reduced award, or no award at all.(24) Such statutory provisions operate, both in theory and in practice, as a significant derogation from what may otherwise be a substantial, even if de facto, "right" to compensation.

3. THE CONCEPT OF A VICTIM.

   1. CITIZENSHIP AND RESIDENCE.

      From the outset, the British Scheme has applied to any person, irrespective of nationality, domicile, or length of residence, who sustains a criminal injury in England, Wales, or Scotland or on board a British vessel or aircraft. Coverage is not, however, provided for any British citizen injured abroad.(25) Similarly, in the United States, many of the earlier state programs applied only to residents injured or killed within the state. Coverage was not available for non-residents or for residents injured or killed outside the state. One of the first requirements of VOCA was the removal of any bar on the award of compensation to non-residents injured or killed within the state,(26) and Nevada is now the only state which fails to comply with this provision.(27) Many programs, however, do not apply to prison inmates.(28) The citizenship of victims is generally irrelevant,(29) but some uncertainty remains with respect to non-citizens who have entered or remain in the United States unlawfully.(30)

      In 1988, a further VOCA provision required states to compensate residents who were victims in another state which did not have a compensation program.(31) With the enactment of programs in all states, however, this provision has now lost most of its significance. Some programs also provide coverage for residents injured outside the United States--at least if they are injured in a jurisdiction which does not have a compensation scheme.(32)

   2. THE COMPENSATING EVENT.

      1. A Crime of Violence.

         (a) Generally.

         From the outset, the British Scheme operated on the basis that the principle of public compensation could "Justifiably" be restricted to victims of crimes of violence.(33) Similarly, compensation under VOCA is payable to victims of "criminal violence."(34) Indeed, much of the justification for public compensation of crime victims in both countries derives from the concept of "Violent" crime. That concept has a seemingly clear core meaning, but is one which, in practice, has led to some definitional difficulties. One obvious approach is to stipulate a list of "violent" crimes, as in New Jersey, where compensation is payable for injury or death resulting from the commission of or attempt to commit:

      1. aggravated assault;

      2. mayhem;

      3. threats to do bodily harm;

      4. lewd, indecent, or obscene acts;

      5. indecent acts with children;

      6. kidnapping;

      7. murder;

      8. manslaughter;

      9. rape;

      10. any other crime involving violence, including domestic violence.;

      11. burglary;

      12. tampering with a cosmetic, drug or food product.(35) Such stipulative definitions are designed to reduce problems of interpretation and application. But they are open to the objection that "[t]his practice could result in denial of benefits to some deserving victims simply because legislatures failed to amend victim compensation laws to reflect new or changing offense definitions in their criminal codes."(36) The New Jersey program seeks to avoid this danger by including "any other crime involving violence." But does that phrase mean "any other crime" which "by its nature involves violence" or "any other crime which in the particular case involves violence?" The New...