12 Repaying Victims
CHAPTER OUTLINE The Costs of Victimizations
Gaining Restitution from Offenders
Back to Basics The Rise, Fall, and Rediscovery of Restitution Divergent Goals, Clashing Philosophies Opportunities to Make Restitution Obstacles Undermining Restitution Restitution in Action
Winning Judgments in Civil Court
The Revival of Interest in Civil Lawsuits The Litigation Process Collecting Damages from Third Parties
Collecting Insurance Reimbursements
Private Crime Insurance Patterns of Loss, Recovery, and Reimbursement Federal Crime Insurance
Recovering Losses through Victim Compensation Programs
The History of Victim Compensation by Governments The Debate over Compensation in the United States How Programs Operate: Similarities and Differences Monitoring and Evaluating Compensation Programs
Confiscating Profits from Notorious Criminals Writing and Rewriting the Law
Summary Key Terms Defined in the Glossary Questions for Discussion and Debate Critical Thinking Questions Suggested Research Projects
LEARNING OBJECTIVES To recognize the many individual and social costs
imposed by criminal activities.
To develop a familiarity with the different ways that injured parties can get reimbursed for their losses.
To understand the various rationales for imposing restitution obligations on offenders.
To become familiar with the arguments in favor of and in opposition to state-run compensation funds.
To recognize the opportunities and drawbacks of civil lawsuits.
To identify the limitations of insurance coverage as a means of recovery.
To appreciate the reasons for favoring and for opposing notoriety-for-profit laws.
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The costs of victimizations cannot be measuredsolely in monetary terms. Mental anguish and physical suffering cannot easily be translated into dollars and cents. Nevertheless, repairing the dam- age to a victim’s financial standing is an achievable goal and a necessary step toward recovery.
Out-of-pocket expenses can be regained in many ways. Making the offender pay is everyone’s first choice, as it embodies the most elemental notion of justice. In criminal court, judges can order con- victs to make restitution, generally as a condition of either probation or parole. Insurance coverage also can be a source of repayment. In some cases, financial aid can be forthcoming from a government-run state compensation fund set up to cover certain crime- related expenses. Note that restitution and compen- sation are alternative methods of repaying losses. Restitution is the responsibility of blameworthy offenders. Compensation comes from blameless third parties, either government-run funds or private insurance companies. In civil court, judges and juries can compel wrongdoers to pay monetary damages. Another possible source of reparations might come in the form of a civil court judgment against a grossly negligent third party, such as a commercial enterprise or a governmental agency that is considered to bear some responsibility for the criminal incident. Finally, in rare instances, victims might be able to deprive offenders of any profits gained from selling a sensa- tionalized “inside story” of their shocking exploits.
This chapter explores all of these means of eco- nomic recovery: court-ordered restitution, lawsuits for damages, third-party civil suits, private insurance policies, government compensation plans, and leg- islation prohibiting criminals from cashing in on their notoriety.
THE COSTS OF VICTIMIZATIONS
The social costs of crime-related expenditures are staggering, according to economists’ estimates. Vic- tims sustain economic losses whenever offenders take cash or valuables; steal, vandalize, or destroy property; and inflict injuries that require medical attention and recuperation that interferes with
work. Theft and fraud bring about the direct trans- fer of wealth from victims to criminals. Murders terminate lives prematurely, resulting in lost earn- ings for devastated family members. Nonfatal wounds trigger huge expenses for medical care— bills from doctors, emergency rooms, hospitals, pharmacies, nursing services, occupational thera- pists, and dentists. The old saying, “It’s only money” might underestimate how even modest losses from a robbery or theft can impose serious hardships for individuals living from paycheck to paycheck, as this case demonstrates:
A knife-wielding robber steals the purse and jewelry of a retired woman scraping by on disability payments. It takes at least six weeks to replace the ID cards and Social Security check in her stolen wallet. In the meantime, she has no cash, no bus pass, and no way to pay for her many prescription drugs, or even dog food for her pet. None of the social service agencies on the list provided by the big city police department offers emergency financial assistance. Finally, she discovers a faith-based charity that is willing to pay her rent and electric bill and give her food vouchers and $50 in cash. “If not for them, I could not have gotten my heart medication, and I’d be going to bed hungry,” she tells a reporter. (Kelley, 2008)
Serious injuries may also inflict emotional suf- fering that requires psychological care for intense feelings of fear, grief, anger, confusion, guilt, and shame. Possible long-term consequences include mental illness and suicide, as well as alcohol and drug abuse. Some may get their lives back in order rather quickly, but others could be haunted by disturbing memories and burdened by phobias and by post-traumatic stress disorder (PTSD) for long periods of time. Overall, the lifetime risk of developing PTSD for violent crime victims is much higher than for the general public. Rates of experiencing episodes of major depression and gen- eralized anxiety are also greater. Furthermore, the effects of the victims’ emotional turmoil are likely to spill over on to family members, close friends, even neighbors. An outbreak of crime can have a
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negative impact on an entire community, fostering a fear of strangers, undermining involvement in activities outside the home, eroding a sense of cohesiveness, and driving out some of the most productive residents (Herman and Waul, 2004).
Even those who are not directly connected to the injured parties may suffer a “psychic toll” from the ever-present fear that permeates a crime-ridden community. The result is that people are willing to pay substantial amounts of money in the form of taxpayer-funded government actions plus private expenditures in their search for greater security and an improved quality of life. Expenses arise from the crime-induced production of goods and services that would not be necessary if illegal activities were not such a grave problem. For exam- ple, the time, money, and resources spent on manufacturing protective devices (locks, surveil- lance cameras, and alarm systems) are crime- induced outlays, as are private security forces and theft insurance. Similarly, local, state, and federal government funds are consumed pursuing “the war on crime,” “the war on drugs,” and the “war on terror.” That translates into huge expenditures for investigating illegal activities by law enforce- ment agencies, and running court and prison sys- tems (including prosecutors’ offices, indigent defense, incarceration, treatment programs, proba- tion, and parole). All of these governmental expen- ditures can be considered to be a net loss of productive resources to society. If the risks to life and health from criminal activity were not so great, these corporate, governmental, taxpayer, and per- sonal expenditures could have been used to meet basic needs and improve living standards for the law-abiding majority (Anderson, 1999).
Some studies that attempt to estimate the costs of crimes focus on what victims lose, but others high- light how much “society” loses when an offender becomes enmeshed in a criminal career. For exam- ple, one group of researchers projected that every murder of an adult (in Pennsylvania in the late 1990s) cost the entire society about $3.5 million. Another group of researchers devised a formula for monetizing a criminal career in order to determine its “external costs” to others over a lifetime, and came
up with even larger estimated societal outlays. For example, each murder inflicted about $4.7 million in victim costs, over $300,000 in justice system expenditures, and nearly $150,000 in offender pro- ductivity losses, for a total cost of over $5 million. Each armed robbery imposed costs of nearly $50,000, and the average burglary inflicted losses of about $5,500 (De Lisi et al., 2010).
GAINING RESTITUTION FROM OFFENDERS
Back to Basics
A renewed interest in restitution developed during the 1970s. Restitution takes place whenever injured parties are repaid by the individuals who are directly responsible for their losses. Offenders return stolen goods to their rightful owners, hand over equiva- lent amounts of money to cover out-of-pocket expenses, or perform direct personal services to those they have harmed. Community service is a type of restitution designed to make amends to society as a whole. Usually it entails offenders working to “right some wrongs,” repairing the damage they are responsible for, cleaning up the mess they made, or laboring in order to benefit some worthy cause or group. Symbolic restitu- tion to substitute victims seems appropriate when the immediate casualties can’t be identified or located, or when the injured parties don’t want to accept the wrongdoers’ aid (Harris, 1979). Crea- tive restitution, an ideal solution, comes about when offenders, on their own initiative, go beyond what the law asks of them or their sentences require, exceed other people’s expectations, and leave their victims better off than they were before the crimes took place (Eglash, 1977).
As a legal philosophy, assigning a high priority to restitution means the financial health of victims will no longer be routinely overlooked, neglected, or sacrificed by a system ostensibly set up to deliver “justice for all.” Criminal acts are more than sym- bolic assaults against abstractions like the social order or public safety.” Offenders shouldn’t be prosecuted solely on behalf of the state or the
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people. They don’t only owe a debt to society. They also have incurred a debt to the flesh- and-blood individuals who suffer economic hard- ships because of illegal activity. Fairness demands that individuals who have been harmed be made whole again by being restored to the financial con- dition they were in before the crime occurred (see Abel and Marsh, 1984).
Usually, wrongs can be righted in a straightfor- ward manner. Adolescent graffiti artists scrub off their spray-painted signatures. Burglars repay cash for the goods they have carted away. Embezzlers return stolen funds to the business they looted. Occasion- ally, client-specific punishments are imposed, tailored to fit the crime, the criminal, and unmet community needs. For example, a drunk driver responsible for a hit-and-run collision performs sev- eral months of unpaid labor in a hospital emergency room to see firsthand the consequences of his kind of recklessness. A teenage purse snatcher who preys on the elderly spends his weekends doing volunteer work at a nursing home. A lawyer caught defrauding his clients avoids disbarment by spending time giving legal advice to indigents unable to pay for it. Such sentences anger those who are convinced that imprisonment is the answer and fervently believe, “If you do the crime, you must do the time.” But imaginative dispositions that substitute restitution and community service for confinement are favored by reformers who want to reduce jail and prison overcrowding, cut the tax burden of incarceration, and shield first-time and minor offenders from the corrupting influences of the inmate subculture (“Fitting Justice?,” 1978; “When Judges Make the Punishment Fit the Crime,” 1978; Seligmann and Maor, 1980).
The Rise, Fall, and Rediscovery of Restitution
The practice of making criminals repay their victims is an ancient one. Spontaneous acts of revenge were typical responses by injured parties and their kin before restitution was invented. Prior to the rise of governments, the writing of laws, and the crea- tion of criminal justice systems, the gut reaction of
people who had been harmed was to seek to “get even” with wrongdoers by injuring them physically in counterattacks and by taking back things of value. But as wealth accumulated and primitive societies established rules of conduct, the tradition of retaliatory violence gave way to negotiation and reparation. For the sake of community harmony and stability, compulsory restitution was institution- alized in ancient societies. Reimbursement practices went beyond the simplistic formula of “an eye for an eye and a tooth for a tooth.” Restitution was intended to satisfy a thirst for vengeance as well as to repay losses. These transactions involving goods and money were designed to encourage lasting set- tlements (composition) between the parties that would head off further strife (Schafer, 1970).
In biblical times, Mosaic law demanded that an assailant repay the person he injured for losses due to a serious wound, and required that a captured thief give back five oxen for every one stolen. The Code of Hammurabi granted a victim as much as 30 times the value of any possessions stolen or damaged. Under Roman law, a thief had to pay the victim dou- ble the value of what he stole if he was caught in the act. If he escaped and was caught later, he owed the victim three times as much as he took. And if he used force to carry out the theft, the captured robber had to repay the injured party four times as much as he stole. Under King Alfred of England in the ninth century, each tooth knocked out of a person’s mouth by an aggressor required a different payment, depending upon its location (Peak, 1986).
In colonial America before the Revolution, criminal acts were handled as private conflicts between individuals. Police departments and public prosecutors did not exist yet. A victim in a city could call upon night watchmen for help, but they might not be on duty, or the offender might flee beyond their jurisdiction. If the injured party sought the aid of a sheriff, he had to pay a fee. If the sheriff located the alleged perpetrator, he would charge extra to serve a warrant against the defendant. When the sus- pect was taken into custody, the complainant had to hire a lawyer to draw up an indictment. Then the complainant either prosecuted the case personally or hired an attorney for an additional fee to handle the
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private prosecution. If the accused was found guilty, the person he harmed could gain substantial benefits. Convicted thieves were required to repay their vic- tims three times as much as they had stolen. Thieves who could not hand over such large amounts were compelled to be servants until their debts were paid off. If the victims wished, they could sell these inden- tured servants for a hefty price, and they had one month in which to find a buyer. After that, victims were responsible for the costs of maintaining the offenders behind bars. If they didn’t pay the fees, the convicts were released (Geis, 1977; Jacob, 1977; McDonald, 1977; and Hillenbrand, 1990).
In the years following the American Revolu- tion, the procedures that the British had set up in the colonies were substantially reorganized. Refor- mers were concerned about the built-in injustices afflicting a system in which only wealthy victims could afford to purchase “justice” by posting rewards and hiring sheriffs, private detectives, bounty hunters, and prosecuting attorneys. Crimes were redefined as acts against the state. Settling individual grievances was no longer regarded as the primary function of court proceedings. To pro- mote equal handling and consistency, local govern- ments hired public prosecutors. State agencies built prison systems to house offenders. A distinction developed within the law between crimes and torts. Crimes were offenses against the public and were prosecuted by the state on behalf of “the people.” Torts were the corresponding wrongful acts that harmed specific persons. Criminals were forced to “pay their debt to society” through fines and periods of confinement. But injured parties who wanted offenders to repay them were shunted away from criminal court and directed to civil court, a separate arena where interpersonal conflicts were resolved through lawsuits (McDonald, 1977).
The modern rediscovery of restitution in the United States began in 1967, when the President’s Commission on Law Enforcement and the Admin- istration of Justice recommended the revival of this old practice that had fallen into disuse. Since the 1970s, opinion polls have indicated widespread pub- lic support for its restoration. A greater reliance on restitution also was endorsed by the American Law
Institute, the American Bar Association, the Ameri- can Correctional Association, the National Advisory Commission on Criminal Justice Standards and Goals, the Supreme Court, the National Association of Attorneys General, the Office for Victims of Crime of the Justice Department, and reformist groups such as the National Moratorium on Prison Construction. The Federal Victim/Witness Protec- tion Act of 1982 removed restrictions that had lim- ited restitution to simply a possible condition of probation within the federal judicial system.
Also in 1982, the President’s Task Force on Vic- tims of Crime noted that it was unfair that people suffering serious injuries had to liquidate their assets, mortgage their homes, make do without adequate health care, or cut back on tuition expenses while criminals escaped financial responsibility for the hard- ships they inflicted. The task force recommended that judges routinely impose restitution or else clearly explain their specific reasons for not doing so. The Violent Crime Control and Law Enforcement Act passed by Congress in 1994 made restitution manda- tory in federal cases of sexual assault or domestic vio- lence. The enactment of the Mandatory Victim Restitution Act of 1996 imposed repayment obliga- tions on all violent offenders in the federal system.The Federal Bureau of Prisons created a payment collec- tion program in the late 1980s that many state correc- tional authorities have copied. The growing use of alternative, creative, or constructive sentences reflects the rediscovery of restitution by judges (McDonald, 1988; Leepson, 1982; Harland, 1983; Herrington, 1986; Galaway, 1992; National Victim Center, 1991b; and Office of Justice Programs, 1997).
In the juvenile justice system, restitution has been ordered more often and for a longer period of time. The oldest existing repayment program for people who have been harmed by delinquents was initiated in Florida in 1945. The earliest community service program was set up in South Dakota in 1965. A Min- nesota program established in 1972 was the first to allow youthful offenders to perform direct services for victims instead of paying them in cash. It also pioneered the use of mediation sessions between the two parties to foster a spirit of reconciliation. Hundreds of juvenile restitution projects were set up during the 1970s and
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1980s (Warner andBurke, 1987; Klein, 1997;Roberts, 1998; and Bradshaw and Umbreit, 1998).
Divergent Goals, Clashing Philosophies
Even though support for restoring restitution to its rightful place in the criminal justice process is grow- ing, its advocates do not agree on priorities and pur- poses. Some advocates have been promoting this ancient practice as an additional form of punish- ment, while others tout it as a better method of rehabilitation. Still other champions of restitution emphasize its beneficial impact on the financial well-being of victims and its potential for resolving interpersonal conflicts. As a result, groups with divergent aims and philosophies are all pushing res- titution, but are pulling at established programs from different directions (see Galaway, 1977; Klein, 1997; and Outlaw and Ruback, 1999).
Restitution as a Means of Repaying Victims Those who advance the idea that restitution is primarily a way of helping victims (see Barnett, 1977; and McDonald, 1978) argue that the punitively oriented criminal justice system offers victims few incentives to get involved. Those who report crimes and cooperate with the police and prosecutors incur additional losses of time and money for their trouble (for example, from missing work while appearing in court). They also run the risk of suffering reprisals fromoffenders. In return they get nothing tangible, only the sense that they have discharged their civic duty by assisting in the apprehension, prosecution, and conviction of a dangerous person—a social obligation that goes largely unappreciated. The only satisfaction the system provides is revenge. But when restitution is incorpo- rated into the criminal justice process, cooperation really pays off.
If the primary goal of restitution is to ensure that victims are repaid, then they should be able to directly negotiate arrangements for the amount of money and a payment schedule. Reimbursement should be as comprehensive as possible. The criminal ought to pay back all stolen cash plus the current replacement value of lost or damaged possessions, outstanding medical bills from crime-related injuries
(including psychological wounds attended to by therapists), wages that were not earned because of absence from work (including sick days or vacation time used during recuperation or while cooperating with the investigation and prosecution), plus crime- related miscellaneous expenses (such as the cost of renting a car to replace one that was stolen or the cost of child care when a parent is testifying in court). Repayment on the installment plan should begin as promptly as possible because victims must foot the entire bill in the interim.
Restitution as aMeans of RehabilitatingOffenders Advocates of restitution as a means of rehabilitation (see Prison Research, 1976; and Keve, 1978) argue that instead of being punished, wrongdoers must be sensitized to the disruption and distress that their illegal actions have caused. By learning about their victims’ plights, they come to realize the injurious consequences of their deeds. By expending effort, sacrificing time and convenience, and performing meaningful tasks, they begin to understand their personal responsibilities and social obligations. By making fiscal atonement or doing community ser- vice, they can feel cleared of guilt, morally redeemed, and reaccepted into the fold. Through their hard work to defray their victims’ losses, offenders can develop a sense of accomplishment and self-respect from their legitimate achievements. They may also gain marketable skills, good work habits (such as punctuality), self-discipline, and valuable on-the-job experience as they earn their way back into the community.
If restitution is to be therapeutic, offenders must perceive their obligations as logical, relevant, just, and fair. They must be convinced to voluntarily shoulder the burden of reimbursement because it is in their own best interest as well as being “the right thing to do.” However, offenders probably will define their best interests as minimizing any penalties for their lawbreaking. This includes minimizing pay- ments to injured parties, even if restitution is offered as a substitute for serving time behind bars. Offenders most likely will underestimate the suffering they have inflicted, while those on the receiving end may tend to overestimate their losses and want to
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extract as much as they can (see McKnight, 1981). The sensibilities of wrongdoers must be taken into account, because their willingness to make amends is the key to the success of this “treatment.”
Restitution as a Means of Reconciling Offenders and Their Victims Some advocates of restitution view the process primarily as a vehicle for reconcilia- tion. After offenders have fully repaid the individuals they hurt, hard feelings can dissipate. Also, reconcili- ation between two parties who share responsibility for breaking the law can be achieved after face- to-face negotiations. In situations without a clearly designated wrongdoer, restitution might be mutual, with each of the disputants reimbursing the other for damages inflicted during their period of hostility. Both parties have to consider the restitution agree- ment to be fair and constructive if a lasting, peaceful settlement is to emerge. (The philosophy and oper- ating principles of restorative justice, which relies heavily on restitution, are discussed in Chapter 13.)
Restitution as a Means of Punishing Offenders Those who view restitution primarily as an addi- tional penalty (see Schafer, 1977; and Tittle, 1978) argue that for too long offenders have been able to shirk this financial obligation to their victims. First, convicts should suffer incarceration to pay their debt to society. Next, they should undertake strenuous efforts to repay the specific individuals they harmed. Only then can their entanglement with the criminal justice system come to an end.
Reformers who promote restitution as a means of repaying victims, as a way of rehabilitating offen- ders, or as the basis for bringing about mutual recon- ciliation can come into conflict with crime control advocates who view restitution as an additional means of punishment and deterrence. The problem with imposing restitution as an extra penalty follow- ing incarceration is that it delays repayment for many years. Because few convicts can earn decent wages while behind prison walls, the slow process of re- imbursement cannot begin until their period of confinement is over, either when the sentence expires or upon the granting of parole. When punishment takes priority over reimbursement, the
victims’ financial needs, the offenders’ therapeutic needs, and the community’s need for harmony are subordinated to the punitive interests of the state. As long as prison labor remains poorly paid, restitution and incarceration will be incompatible.
The major argument against the centrality of victim reimbursement is that the operations of the criminal justice system are intended to benefit soci- ety as a whole, and not just the injured party. Other considerations should come first: punishing crim- inals harshly to teach them a lesson and to deter would-be lawbreakers from following their exam- ple; treating offenders in residential programs so that they can be released back as rehabilitated and productive members of the community; or incapac- itating dangerous persons by confining them for long periods of time. Subordinating these other sentencing objectives to restitution would reduce the legal system to a mere debt collection agency catering to victims, according to a 1986 Supreme Court decision (Triebwasser, 1986).
Opportunities to Make Restitution
Restitution is an extremely flexible sanction that is not being used to its full potential. It can be applied at each stage in the criminal justice process, from the immediate aftermath of the crime up until the final moments of parole supervision following a period of imprisonment. Figure 12.1 illustrates how restitution can be an option at every decision-making juncture.
As soon as a suspect is apprehended, an informal restitution arrangement can settle the matter. For example, a storekeeper might order a shoplifter to put the stolen item back on the shelf and never return to the premises, or parents might offer to pay for their son’s spray painting of a neighbor’s fence. In most states, however, serious offenses cannot be resolved informally. It is a felony for a victim to demand or accept any payment as “hush money” to cover up a major violation of the law, in return for not pressing charges, or as a motive for discontinuing cooperation with the authorities in an investigation or prosecu- tion. A criminal act is an offense against the state in addition to a particular person and cannot be settled privately (Laster, 1970).
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After a suspect is arrested, a restitution agree- ment can be worked out as an alternative to prose- cution (diversion). If a defendant is indicted, the district attorney’s office can make restitution a con- dition for dismissing formal criminal charges. Once prosecution is initiated, restitution can be part of a plea bargain struck by the defense lawyer and the district attorney, wherein the accused concedes guilt in return for lesser penalties. Restitution is particularly appropriate as a condition of probation or of a suspended sentence. If incarcerated, an inmate can try to begin to repay the injured party from the meager wages he earns from labor in prison, but he will be more capable of putting money aside if he gets a real job while he is on work release or when he resides at a halfway house. After serving time, restitution can be included as a condition of parole. Restitution con- tracts can be administered and supervised by various
parties concerned about the crime problem: com- munity groups, private and nonprofit charitable and religious organizations, juvenile courts, adult crimi- nal courts, probation departments, corrections departments, and parole boards.
Yet as promising as restitution seems to be, it is not the answer formost victims. Only a small percent- age will ever collect anything. The problem is directly parallel to the quest for emotional satisfaction from retribution. Just as most criminals escape punishment, most also evade restitution. The phenomenon of case attrition has been labeled funneling, or shrinkage, and has been likened to a “leaky net.” At the outset, many cases seem appropriate for restitution. But at the end of the criminal justice process, only a relative handful of injured parties receive even partial restitu- tion. All the other cases (and offenders) have slipped through holes in the net. Figure 12.2 explains how and why so many “escape” their financial obligations.
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First of all, a large number of offenders will never have to make amends because their victims do not report the incidents to the police (refer back to Table 6.1). Next, the majority of offenders get away with their crimes because the police cannot figure out who the perpetrators are (clearance rates are especially low for the most numerous property crimes: burglaries, car thefts, and other forms of stealing; see Table 6.3). Hence, right away most of the people who have suffered harm already have been eliminated from any chance of receiving reimbursement. For example, only about one-half of all robberies are reported, and only one-quarter are solved, so only one out of eight robbery cases enters the system.
Of the relatively small number of crimes that are solved by an arrest, additional problems can arise dur- ing the adjudication process. The overwhelming majority of cases (upwards of 90 percent in many jur- isdictions) are resolved through plea negotiations that involve dropping charges or counts. Many complai- nants are eliminated from consideration if offenders do not admit to hurting them. Some cases that go to trial result in acquittals, and some convictions are reversed on appeal. Of those who are convicted or who plead guilty,many are unwilling or unable to shoulder finan- cial obligations. Judgesmay not order convicts to repay the people they harmed. Inmates usually cannot earn substantial amounts of money. Prisoners granted parole have trouble finding any work, let alone a job that pays enough to allow them to set asidemeaningful amounts after all their other deductions.
Finally, many jurisdictions lack both a tradition of ordering restitution and a mechanism for moni- toring and enforcing such arrangements. Actually collecting the funds in a timely manner remains a major challenge for victims (Harland, 1983; McGillis, 1986; and Davis and Bannister, 1995).
Obstacles Undermining Restitution
Economic realities limit the ability of many convicts to meet their restitution obligations. Because the street crime problem is in large part an outgrowth of poverty and the desperation it breeds, restitution obligations collide with competing claims for the
same earnings. Ex-offenders have more pressing expenses and other debts. Furthermore, restitution is predicated on work that pays a living wage. Offenders must have, must be helped to find, or must be given reasonably well-paying jobs. These jobs need to pay far more than the minimum wage to permit installments for victims to be deducted from total after-tax earnings. But the U.S. economy cannot provide decent jobs for all who want to earn a living, even during the best of times.
Many dilemmas arise when restitution obliga- tions are considered within the context of intense competition for the limited number of well-paying jobs convicts are capable of doing. If a position is found or created for an ex-offender, then the pro- spects for the successful completion of the restitu- tion obligation are increased. Otherwise, the victims of down-and-out street criminals are denied a real chance to get repaid. If the job pays low wages, then the repayment process cannot be com- pleted within a reasonable amount of time. If nearly all of the ex-offender’s earnings are confiscated and handed over to the victim, that would jeopardize the wrongdoer’s commitment to the job and to repaying the debt. If the job is demeaning, then its therapeutic value as a first step in the direction of a new lifestyle built on productive employment is lost. If the job is temporary and only lasts for the duration of the restitution obligation, then the risk of returning to a career of crime is heightened.
But if a job found or created for an ex-offender is permanent and pays well, then some observers might object that criminals are being rewarded, not punished, for their misdeeds. Law-abiding peo- ple desperately seeking decent jobs will resent any policy that seems to put offenders at the front of the line. Trade union members rightfully will fear that convict labor could replace civilian labor over the long run. But if inmates are put to work in large- scale prison industries, then business interests and labor unions justifiably will complain about unfair competition. If adolescents owing restitution are too young to receive working papers, then a job in private industry would violate child labor laws. Only unpaid community service would be permissible—but then victims get nothing.
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When the injured parties are hard-pressed to make ends meet, restitution seems appropriate and fair. But if indigent offenders must hand over money to affluent victims, then restitution smacks of exploitation—taking from the poor and giving to the rich. Conversely, if prosperous offenders (such as white-collar criminals) are allowed to pay off their obligations from their bank accounts and not with hard work, it will appear that they are buying their way out of trouble. If poor people are kept behind bars and denied the opportunity to make restitution as a condition of probation or parole because they lack marketable job skills, such discrimination against an entire class of people seems to be a violation of the equal protection clause of the Fourteenth Amendment.
Yet in jurisdictions where the criterion for release from confinement was a perceived ability to repay, a typical participant in a restitution program turned out to be a white, middle-class, first-time property offender, and the most common recipient of reimbursement was a business, studies showed (see Galaway and Hudson, 1975; Edelhertz, 1977; Hudson and Chesney, 1978; Gottesman and Mountz, 1979; Harland, 1979, 1981a; and Outlaw and Ruback, 1999).
Restitution in Action
Courts in every state now have the authority to order restitution. Victims are promised a right to restitution in some states that have adopted pro- victim constitutional amendments. In many states,
judges are supposed to impose restitution obliga- tions on convicts whenever possible and if appro- priate, unless there are compelling or extraordinary circumstances (which must be entered into the record in writing). Restitution should routinely be part of the sentence after either negotiated pleas or trials. Often, judges are specifically directed to order reimbursement in cases of child abuse, elder abuse, domestic violence, sexual assault, identity theft, drunk driving, and hate crimes. The repayment can cover outlays for medical expenses, counseling bills, replacing property that was damaged or destroyed, lost wages, other direct costs, and even funeral expenses (National Center for Victims of Crime, 2002d).
Statistics compiled by the federal government shed light on the actual rate of ordering convicts to make restitution in state courts around the country. The national data compiled in Table 12.1 reveals that, in general, judges have not been imposing restitution obligations on most offenders. Judges ordered felons to repay their victims in addition to another sentence (usually a term of incarceration, but sometimes a fine or compulsory treatment) in only a fraction of all convictions for either violent crimes or property crimes. Restitution was part of the sentence in a larger percentage of felony con- victions for burglary, larceny, motor vehicle theft, and fraud than it was for murder, rape and other sexual assaults, robbery, and aggravated assault. Peo- ple who commit fraud are the most likely to have to pay back their victims (who might be businesses rather than individuals). Murderers are the least
T A B L E 12.1 Percentages of Convicted Felons Sentenced to Restitution as an Additional Penalty in the 75 Largest Jurisdictions Nationwide, Selected Years, 1996–2006
1996 1998 2000 2002 2004 2006
Convicted for: Murder 9 10 11 7 14 13 Rape and sexual assault 9 11 11 10 16 18 Robbery 11 13 13 10 16 18 Aggravated assault 14 14 13 11 15 18 Burglary 21 23 24 20 24 27 Larceny 22 21 25 19 26 26 Vehicle theft 22 21 27 19 37 28 Fraud 32 29 31 24 30 29
SOURCES: BJS, 2008c; and Rosenmerkel et al., 2010.
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likely of all felons to be forced to take financial responsibility for the losses they inflicted (presum- ably to the families of the people they killed).
As for changes over time, the imposition of restitution by judges may have been creeping upward during the late 1990s but slipped backward during 2002. However, by 2006, the ordering of repayment in state courts rebounded and reached new highs that surely were still disappointingly low to those who firmly believe in restitution as an important component of criminal justice. The trends in Table 12.1 were derived from a court monitoring system operated by the Department of Justice that tracks dispositions in nearly one million cases every two years in the nation’s 75 largest jur- isdictions (see Langan and Graziadei, 1995; Durose, 2004; BJS, 2008c; and Rosenmerkel et al., 2010).
Another set of figures from this federal database is worth examining for national trends (see Table 12.2). In theory, making restitution is more feasible if a con- vict is on probation rather than behind bars. In prac- tice, restitution doesn’t materialize most of the time. Of felons whowere fortunate enough to be sentenced to probation for violent acts, only about 1 in 7 was ordered by a judge in state court to try to reimburse those they harmed as one of the conditions they must obey; and in 2006 this fraction plunged to merely 1 in 11. Felons on probation for property crimes make restitution at a higher rate. But the direction of drift once again seems downward, from two-fifths of all probationers working off their debt in 1996 down to only roughly one-fourth in 2006. This backward trend over more than 20 years toward disuse in both violent and property crimes (seemingly the easiest and most appropriate cases), rather than forward toward greater use, is another disappointment to people who believe in the appropriateness of restitution.
The three most frequently cited reasons for judges failing to impose restitution all fault victims: they didn’t request reimbursement, they failed to document their losses, or they were unable to cal- culate their exact expenses. Often, judges felt that restitution obligations would be inappropriate if convicts also had to “repay society” by serving time behind bars or if they had a very limited potential to earn a living wage.
Despite these obstacles, limitations, conflicting priorities, dilemmas, and ironies, restitution is under way in many jurisdictions. Probation departments run most supervision and collection programs (75 percent) (Office of Juvenile Justice and Delin- quency Prevention, 1998b).
When criminologists and victimologists evaluate the effectiveness of these programs, the challenge is to identify the specific goals and to devise appropriate criteria to measure degrees of success and failure. Victim-oriented goals involve making the injured parties whole again by enabling them to collect full reimbursement and to regain peace of mind (recovery from emotional stress and trauma). Offender-oriented goals are achieving rehabilitation and avoiding recidivism. System-oriented goals include reducing case processing costs, relieving tax- payers of the financial burden of compensating peo- ple who have been harmed, alleviating jail and prison overcrowding through alternative sentences, and improving citizen cooperation by providing material incentives to injured parties for participating in the criminal justice process. So many different aims and touted benefits coexist that no sweeping conclusions can be drawn about the effectiveness of the programs now in operation (for example, see McGillis, 1986; Butts and Snyder, 1992; Jacobs and Moore, 1994; and Davis, Smith, and Hillenbrand, 1992).
T A B L E 12.2 Percentage of Convicted Felons Placed on Probation Who Have Restitution Obligations in the 75 Largest Jurisdictions Nationwide, Selected Years, 1994–2006
1994 1996 2000 2002 2004 2006
On Probation for: Violent crimes 15 15 14 15 15 9 Property crimes 34 40 33 32 26 24
SOURCES: Reaves, 1998; Hart and Reaves, 1999; Rainville and Reaves, 2003; Cohen and Reaves, 2006; Kycklehahn and Cohen, 2008; and Cohen and Kycklehahn, 2010.
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To improve the chances that convicts will make at least partial restitution, notification laws could be strengthened to ensure that victims are advised of their rights. Prosecutors could bear the routine responsibility of requesting restitution, or restitution could be considered mandatory unless the judge specifically excuses the offender from this obligation. Pre-sentence investigation reports and victim impact statements could be used as a stan- dard form to document claims for repayment (NCVC, 2002c). To better enforce restitution orders, judges could routinely investigate the assets of convicts before crafting a workable payment plan. To decrease the likelihood of default, prosecutors could obtain injunctions to prevent defendants from hiding or quickly spending their assets (cash, savings, investments, homes, vehicles, valuable possessions), and probation and parole departments could more closely monitor these court-ordered payments, and either revoke or extend periods of probation and parole if the convict willfully refuses to make timely payments. The money to be handed over can be deducted from inmates’ wages from prison labor, state and federal income tax refunds, lottery winnings, inheritances, trust accounts, and collateral used for bail. If convicts default, private collection agencies can be called, and unpaid bal- ances can be converted into civil judgments enforced by seizures of property by sheriffs’ departments (NCVC, 2002b).
However, for those who become impatient and dissatisfied with criminal-court-ordered restitu- tion, another avenue for reimbursement can be pursued: lawsuits in civil court.
WINNING JUDGMENTS IN CIVIL COURT
The Revival of Interest in Civil Lawsuits
A famous retired football player is put on trial for the murder of his ex-wife and her friend, but he is acquitted by a jury that is not convinced of his guilt beyond a reasonable doubt by the prosecution’s extensive but extremely complicated
forensic evidence. The outraged families of the murder victims sue him in civil court. A jury finds him liable for the wrongful deaths and awards the two families more than $33 million in compensatory and punitive damages. When he announces that he is writing a book entitled “If I Did It, Here’s How It Happened,” the two families are divided over whether to go after the royalties to speed up the slow payment of the judgment. Thirteen years to the day after he was acquitted of murdering his former wife, he is convicted of taking part in an armed robbery of sports memorabilia by a group of men in a hotel room and is sentenced to prison. He appeals the conviction, arguing that his attorneys were improperly barred from asking prospective jurors about their knowledge of his previous acquittal in criminal court and the subsequent judgment against him in civil court, but his lengthy sentence is upheld. (Ayres, 1997; and Martinez, 2010)
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The wife of a well-known television and movie star is shot while she sits in their car outside of a restaurant. He is put on trial but acquitted. The district attorney angrily brands him, “guilty as sin” and denounces the jury as “incredibly stupid.” The wife’s four grown children decide to sue the actor in civil court, contending that either he killed her himself or hired someone to do it. Although he did not testify at his murder trial, he is compelled to take the stand and answer questions in civil court. Ten of the twelve jurors conclude that he was involved in the slaying, and the judge orders him to pay $30 million to his dead wife’s four children. He declares bankruptcy and appeals the judgment. Several years later, a judge halves the damages he owes her children but rules that the jury did not act improperly when it discussed “sending a message” to celebrities that they can’t get away with murder or molestation, as they may have in other cases. (Associated Press, 2005; BBC, 2008; and Morrison, 2010)
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A growing number of victims are no longer content to just let prosecutors handle their cases in criminal court, especially if convictions are not secured. They have discovered that they can go after their alleged wrongdoers and pursue their best interests in a different arena: via a lawsuit in civil court.
Criminal proceedings are intended to redress public wrongs that threaten society as a whole. As a result, the economic interests of injured parties seeking restitution from convicts routinely are sub- ordinated to the government’s priorities, whether probation, incarceration, or execution. Injured parties seeking financial redress are directed to civil court. There they can launch lawsuits designed to remedy torts—private wrongs—arising from violations of criminal law. Under tort law, plaintiffs (victims) can sue defendants and win judgments for punitive damages (money extracted to punish wrongdoers and deter others) as well as compensatory damages (to repay expenses).
Activists in the victims’ movement like to call attention to these often-overlooked legal rights and opportunities. Guilty verdicts in criminal courts cost offenders their freedom; successful judgments in civil courts cost offenders their money. Lawsuits can be successful even if charges are not pressed or if the alleged perpetrator is found not guilty after a trial in criminal court. Centers for legal advo- cacy and technical assistance have sprung up in many cities to make lawsuits an occupational hazard and a deterrent for habitual criminals (Barbash, 1979; Carrington, 1986; Carson, 1986; and National Victim Center, 1993).
The Litigation Process
Civil suits can involve claims for punitive damages as well as compensatory and pecuniary damages. Awards for compensatory damages (repayment of expenses) and pecuniary damages (to cover lost income) are supposed to restore victims to their for- mer financial condition (make them “whole” again). They can receive the monetary equivalent of stolen or vandalized property, wages from missed work, projected future earnings that won’t materialize
because of injuries inflicted by the offender, and out- lays for medical and psychiatric care (hospital bills, counseling expenses) plus recompense for physical pain and mental suffering (resulting from loss of enjoyment, fright, nervousness, grief, humiliation, and disfigurement). Punitive damages might be lev- ied by the court to make negative examples of law- breakers who deliberately act maliciously, oppressively, and recklessly (Stark and Goldstein, 1985; and Brien, 1992).
In civil courts, victims and their kin can sue offenders for certain intentional torts. Wrongful death suits enable survivors to collect compensa- tion for the loss of a loved one without justification or legitimate excuse and for assault, which covers acts sufficiently threatening to cause fear of imme- diate bodily harm. Suits for battery involve inten- tional, harmful, physical contact that is painful, injurious, or offensive. Suits charging trespass cen- ter upon the intentional invasion of another per- son’s land. Conversion of chattel suits accuse defendants of knowingly stealing or destroying the plaintiffs’ possessions or property through theft or embezzlement. Suits alleging false imprisonment contend that the offender held the plaintiff against his or her will, even if for a brief period of time, such as during a hostage taking or rape. Charges of fraud can arise from white-collar crimes if inten- tional misrepresentation and deception can be established. Finally, suits can allege that the defen- dant intentionally or recklessly inflicted emotional distress through extreme or outrageous conduct, such as by stalking the plaintiff (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).
Civil actions commence when the plaintiff (also called the second party) formally files a com- plaint (also referred to as a pleading). This docu- ment includes a brief statement of the legal jurisdictional issues, a summary of the relevant facts of the case (the causes of action that show how the harm to the victim was a “direct and prox- imate result” of the alleged wrongdoer’s behavior), and a request for relief for the injuries and damages sustained (monetary compensation). The victim’s attorney brings the complaint to civil court and
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pays a fee. A deputy sheriff (or a privately retained process server) must physically hand this written document to the defendant (also called the first party), along with a summons requiring a response to the allegations within a stated period of time (usually one month). The accused wrongdoer sub- mits an answer either admitting to the charges or, more likely, contesting them and issuing a defense (or perhaps even launching a countersuit).
In preparing for a trial to resolve the competing claims, both parties engage in a process called dis- covery, in which they exchange written replies to questions, documents, and sworn statements of eye- witnesses (including police officers). Just as in crim- inal proceedings, the typical outcome is a negotiated compromise agreement. But if an out- of-court settlement cannot be reached, the accused exercises his Seventh Amendment right to a trial, and the injured party has to prove the allegations in court. After considerable delays because of con- gested court calendars, the trial is held before twelve (or, in some states, six) jurors or perhaps only in front of a judge (Stark and Goldstein, 1985).
In civil proceedings, the defendant in third- party lawsuits is likely to allege contributory negli- gence (the injured party was partly responsible for what happened). In battery cases, the rebuttal might be victim provocation (leading to responses neces- sary for self-protection). In other lawsuits, the defense might argue that the plaintiff knowingly and voluntarily “assumed the risk”; for example, a woman alleging rape was drinking heavily and agreed to go to the man’s apartment (Stark and Goldstein, 1985; and National Crime Victims Bar Association, 2007).
Following opening statements presented by attorneys for each side, witnesses testify and are cross-examined, and physical evidence is intro- duced. Interrogatories (lists of questions for the other side to answer), depositions (answers to the opposing lawyer’s questions), and requests for documents may generate important evidence. Then each party’s attorney sums up, and the jury retires to deliberate. The jury votes and then ren- ders its verdict on which of the two versions of
events seems more truthful. The jury awards com- pensatory and perhaps punitive damages if it finds for the plaintiff and rejects the defendant’s argu- ments. The losing party is likely to appeal the deci- sion, and a higher court can overturn the trial court’s verdict if errors in procedural law are dis- covered or if the jury acted contrary to the evi- dence. Appeals may take many years to be resolved (Stark and Goldstein, 1985).
Litigation in civil court usually follows rather than precedes adjudication in criminal court. Peo- ple who have been badly hurt usually wait to pro- ceed with litigation because the evidence that is introduced during the criminal proceedings can be used again in the lawsuit and generally is sufficient to establish that a tort occurred. Furthermore, if the civil action is filed too early, the defense attorney will use this fact to try to undermine the complai- nant’s credibility as a witness for the prosecution, claiming that the testimony is motivated by poten- tial financial gain. But if the civil action is not filed for years, the statute of limitations might run out, and it will be too late to sue the defendant. For example, in most states, lawsuits alleging assault must be filed within two years, before complai- nants’ and defendants’ memories fade and material evidence is lost or destroyed (Brien, 1992).
Possibilities and Pitfalls Injured parties who are considering civil litigation must weigh the advan- tages and disadvantages of this course of action. One reason civil lawsuits are relatively uncommon is that most victims conclude that the benefits are not worth the costs. In addition, many people are unfamiliar with this option.
Civil lawsuits have several attractions. First and foremost, victims can seize the initiative, haul their assailants into court, bring them to the bar of jus- tice, and sue them for all they can get. In criminal cases, prosecutors exercise considerable discretion and make all the important decisions, even in jur- isdictions where victims have the right to be informed and consulted. In civil cases, victims can regain a sense of control and feel empowered. They are principal figures entitled to their day in court, are aware of all the facts surrounding the case, and
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can’t be excluded from the courtroom. It is up to them to decide whether to sue and whether to accept a defendant’s offer of an out-of-court settle- ment. (In small-claims courts, plaintiffs don’t even need an attorney. They can present their own cases using simplified procedures designed to expedite trials, because not much money is at stake).
Plaintiffs seeking large awards must hire attor- neys of their own choosing and can participate in developing a strategy and preparing the case in anticipation of the trial. Victims can achieve full reimbursement, perhaps even more money than they lost, through lawsuits. They can collect punitive damages far in excess of actual out- of-pocket expenses, and can receive compensation for the mental pain and emotional suffering they endured. Defendants’ assets, including homes, cars, savings accounts, investments, and inheritances, can be attached (confiscated), and their wages can be garnished. Most attorneys practicing civil law accept cases on a contingency basis and don’t charge a fee unless they win. Suits can be brought by the victims’ family (parents, children, spouse, or sib- lings) if an injured party is too young, mentally incapacitated, or dies (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).
Winning a judgment in civil court is easier than securing a conviction in criminal court—the stan- dard of proof is lower and less demanding. In law- suits, conflicting claims are decided by a preponderance of the evidence (the winning side is the one that presents the more convincing arguments, translated as “more likely than not” or “51 percent”), not by guilt beyond a reasonable doubt (proving the charges to a moral certainty). Therefore, a civil suit following a conviction in crim- inal court is likely to succeed because the same evi- dence and testimony can be used again in front of a second jury that does not have to reach a unanimous agreement and does not have to be convinced beyond a reasonable doubt. An acquittal in criminal court does not rule out civil action, because a jury still might decide in favor of a plaintiff who presents a more persuasive case than the defendant. Even if the prosecutor drops the criminal charges that were
initially lodged by the police, a plaintiff might win if the evidence that came to light during the police investigation is presented in civil court. If plaintiffs win awards but defendants are unwilling to pay up voluntarily, sheriffs and marshals can be enlisted to enforce the courts’ judgments by seizing contested assets or property, which can be sold at public auc- tions to raise cash.
Because defendants in civil court do not face imprisonment or execution, constitutional protec- tions are less stringent than in criminal court. Defendants cannot ignore lawsuits for more than 30 days, or else they automatically lose (a default judgment). Nor can the accused plead the Fifth Amendment and refuse to testify on the grounds of self-incrimination. Defendants must reply to the questions put to them or risk a quick defeat. Rules of evidence are more flexible and, for exam- ple, allow the plaintiff to reveal the defendant’s prior convictions for similar acts, a disclosure that usually wouldn’t be permissible in criminal court (Stark and Goldstein, 1985; and Brien, 1992).
Successful suits can make victims feel vindi- cated: The judges and jurors sided with them, accepted their version of events, and rejected the defendants’ denials, excuses, or justifications. Vic- tims teach perpetrators the lessons that crime does not pay and that wrongdoers ultimately will be held liable for their misdeeds. Reimbursement is sooth- ing, and revenge is sweet. Civil suits are the only means of redress when the entire injury and loss is intangible and subsumed under the heading of pain and suffering.
Despite the prospect of financial reimburse- ment, several drawbacks deter most victims from pursuing civil actions. Civil proceedings are inde- pendent of criminal proceedings. The entire case must be fought all over again in the courtroom, this time at the victim’s expense without the back- ing of the government and its enormous resources. A statute of limitations may have run out—the time limits for filing a lawsuit vary by crime and by state; those with recovered memories of abuse during childhood may be entitled to extra amounts of time. Victims have to put their lives on hold for years while the litigation process slowly drags on.
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Cases involve motions, hearings, conferences, negotiations, trials, and appeals. In the meantime, plaintiffs (and defendants as well) undergo a long, drawn-out ordeal punctuated by moments of sus- pense, anxiety, frustration, despair, and humiliation. Despite their opposing interests and simmering mutual hostility, the warring parties must keep in contact (at least through their respective lawyers) for months or even years after criminal proceedings end. If negotiations fail and last-minute, out- of-court settlements are beyond reach, victims must take the stand and once again relive the inci- dent in painful detail. After testifying, victims must submit to a withering cross-examination by the defense attorney that could raise questions of shared responsibility, damage the victims’ reputation, and expose the most intimate details about lifestyles, injuries, losses, and suffering. The backlogs and delays in civil court are worse than those in criminal court because litigation has become such a popular way to settle disputes. Win or lose, civil suits drag on for years before they are resolved, forestalling closure for victims who want to get on with their lives. Furthermore, the injured parties run the risk of being sued themselves. Countersuits by defen- dants against plaintiffs fit into a strategy of harass- ment and intimidation intended to force victims to drop certain charges, or to withdraw their suits entirely, or to accept unfavorable out-of-court set- tlements (see Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).
In the adversary system of civil proceedings, top-notch lawyers are said to be as important a fac- tor as the facts of the case. Unfortunately, they probably won’t be interested unless great sums of money are at stake. Their contingency fees can range as high as one-third to one-half of the money awarded to plaintiffs, if they are victorious. Even victims who win may have to pay for most liti- gation expenses other than their attorney’s fees, such as filing fees, deposition costs, and expert witness fees.
Most discouraging of all is the problem of col- lecting the debt. Even in victory there can be defeat. If the offenders have spent or hidden the
spoils of their crimes, it will be difficult for the plaintiffs’ attorneys to recover any money without incurring great expenses. Most street criminals don’t have what lawyers call deep pockets (assets like homes, cars, jewelry, bank accounts, investments in stocks and bonds, or business interests). On the contrary, many are virtually judgment-proof— broke and with no prospects of coming into money from work or inheritances (see Stark and Goldstein, 1985; and Brien, 1992).
No government agency systematically compiles records about the successes and failures of plaintiffs who have sued defendants in civil courts. The actual dollar amounts of some out-of-court settle- ments are kept confidential. Nevertheless, advocacy groups urge victims to consider exercising their civil court option, especially if the identity and where- abouts of the offender are known, if restitution is not forthcoming from criminal court proceedings, and if compensation is not available from insurance companies or government-administered funds.
Recognizing that few street criminals who commit acts of violence or theft have substantial assets or incomes, attorneys within the victims’ rights movement have developed a strategic alter- native: lawsuits against financially sound third parties.
Collecting Damages from Third Parties
Even when the perpetrators of a crime are known to be judgment-proof, victims still have a chance to recover their losses. Instead of suing those who inflicted their injuries directly and intentionally, plaintiffs can go after third parties: individuals or entities such as businesses, institutions, or govern- ment agencies. The twist in these civil suits is to allege that a third party is partly to blame for the victim’s misfortunes.
The legal theory behind third-party suits paral- lels traditional notions of negligence. The plaintiff argues that the defendant (the third party) had a duty or obligation, that there was a breach of this duty, and that this breach proximately caused injury to the plaintiff. The plaintiff tries to prove that the third party’s gross negligence put the criminal
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in a position to single him or her out for harm (Carrington, 1977). For example, in the aftermath of a spate of massacres on school grounds, families of youngsters who were killed or wounded filed lawsuits against the parents of the students who went berserk, the people who inadvertently were the sources of the weapons, the school district, and the manufacturers of the guns (Lewin, 2001).
There are two types of third-party liability suits. The first is directed against enterprises such as private businesses (for example, firearms dealers who failed to take adequate steps to prevent their handguns from being sold illegally to teenage gang members). The second type is aimed at custodial agencies and officials of the criminal justice system (such as municipal police departments, prison war- dens, and directors of mental institutions). Whereas suing offenders is reactive, third-party civil suits can be both reactive and proactive. If for no other motive than their own enlightened self-interest, the private enterprises and governmental bodies that are the targets of these kinds of suits are com- pelled to take reasonable and necessary precautions to prevent further incidents for which they could be sued again. By discouraging the indifference and negligence that facilitate predatory acts, third-party civil suits contribute to security consciousness and crime prevention (Carrington, 1986). A National Crime Victim Bar Association (2007) encourages injured parties to seek redress through civil actions and provides names of attorneys who specialize in lawsuits.
Suing Private Enterprises Several successful suits during the 1970s have served as landmark cases for many subsequent claims:
A well-known singer is raped in a motel by an unknown assailant who entered her room by jig- gling the lock on the sliding glass terrace doors. Badly shaken by the experience and unable to appear on stage, the singer sues the motel chain for loss of earnings. Her attorney argues that the motel showed gross negligence by failing to maintain secure premises for its guests. A jury renders a verdict in her favor of $2.5 million. The motel
chain agrees to a settlement by not appealing the verdict and pays her $1.5 million. (Barbash, 1979; and Rottenberg, 1980)
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A security guard at a drive-through hamburger stand is shot in the head during a robbery. He doesn’t sue the offender or his employer (the restaurant). Instead, his attorney argues successfully that the chain store that sold the robber the bullet is guilty of gross negligence. The guns and ammunition department routinely ignored an obscure state law that requires two citizens to vouch for the identity of the purchaser of bullets. (Barbash, 1979; and Rottenberg, 1980)
Third-party lawsuits against businesses have established new definitions of corporate responsibil- ity and financial liability. The suits never accuse the defendant (business) of intentionally harming the plaintiff because the executives in charge probably never met either the victim or the offender and were two or three steps removed from the criminal action. What is alleged is that the defendant’s gross negligence and breach of responsibility created a climate that made the crim- inal’s task easier and the incident predictable (Carrington, 1977, 1978).
Third-party suits against private enterprises can take several forms. Lawsuits can allege that landlords are responsible for crimes committed against their tenants because of inadequate lighting or locks. Hotels and motels may be liable for assaults and thefts committed against guests because of lax secu- rity measures (such as failure to install closed-circuit television monitors, store room keys safely, or hire guards). Banks, stores, shopping malls, and theaters can be held accountable for failure to provide ordi- nary care to protect customers from robbers and thieves. “Common carriers” (bus, train, or airplane companies) might be liable for failure to furnish customary forms of protection for passengers on vehicles or at stations and platforms. Employers who negligently hire known felons and put them in positions of trust might be partly to blame if the ex-cons break laws during the course of their
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assigned duties. Even college administrations could be responsible for failing to correct security lapses that a reasonable and prudent individual would realize endanger students in campus buildings and dormitories (Austern, 1987). A successful lawsuit by people wounded in the 1993 World Trade Center bombing established negligence about security measures on the part of the agency that managed the twin towers (Hartocollis, 2005). A parallel $23- billion third-party lawsuit by 9/11 victims and their families against the airlines and airport security companies (Hartocollis, 2008) was still pending during 2011.
Plaintiffs can win if they can prove in civil court that the third party did not take sufficient actions to prevent a reasonably foreseeable crime. To prevail, the attorney must convincingly demon- strate that the defendant chronically disregarded complaints, did not post warnings, chose not to rectify conditions and improve security, and did not offer the degree of protection expected by community standards. Most claims fail to meet this test, but the few that succeed can contribute to the improvement of public safety in places like shopping centers, bus terminals, parking lots, hotels, and apartment complexes (Brien, 1992).
As attorneys are honing their skills at security litigation seminars, landlords and businesses are attempting to make their premises suit-proof even if they cannot be crime-proof (Purdy, 1994). Because many lawsuits against property owners are settled out of court, reliable figures about their rate of occurrence and success are hard to find. One estimate from a sample of court records turned up 186 suits against property owners from 1958 to 1982. A later study established that the rate has increased, locating 267 third-party suits from 1983 to 1992. Almost half of all the suits were launched by women who had been raped (Deutsch, 1994).
In recent years, victims of gun violence have filed dozens of claims against the firearms industry, but most of these third-party lawsuits have been dismissed by the courts. A notable exception took place after a pair of snipers terrorized the Washing- ton, D.C., area in 2002. Eight people who were wounded and the next of kin of those who were
murdered won a $2.5 million legal settlement from the manufacturer of the high-powered rifle and from the gun dealer who improperly sold it.
However, in 2005, Congress passed “shield” legislation (similar to the existing laws in 33 states) that specifically protected manufacturers and dealers from suits seeking to hold them liable for negli- gence when their weapons are used to commit crimes. Victorious backers of the gun lobby’s mea- sure said it was needed to keep the American arms industry in business in the face of “frivolous” but costly lawsuits. Disappointed opponents argued its passage will deprive wounded people (as well as entire municipalities, such as New York City, that incur huge expenses from gun violence) of a legiti- mate avenue for financial recovery (Stolberg, 2005).
Suing Governmental Bodies Successful third- party lawsuits against criminal justice agencies and custodial officials, like the two 1970s landmark cases described below, are less common than suits against private enterprises:
A 14-year-old girl is abducted from a private school, tied to a tree, molested, and then left to freeze to death. The man who kills her had previously attacked another girl from the same school in the same way. He had been committed for treatment while under confinement at a nearby psychiatric institute. The victim’s parents sue the mental hospital, a psychiatrist, and a probation officer for arranging the release of the offender into an outpatient program without first receiving court approval. They win a judgment of $25,000. (Carrington, 1977, 1978)
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An inmate with a record of 40 felony convictions and 17 escape attempts is permitted to participate in a “take-a-lifer to dinner” program. After eating at the home of the prison’s baker, he breaks loose, commits an armed robbery, and kills a man. The victim’s widow sues the warden both personally and in his official capacity, in addition to the state prison system, for gross negligence. Her attorney argues that the warden didn’t have legislative authority or administrative
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permission from his superiors to let the inmate out that night. She wins a judgment of $186,000, which the state does not appeal. (Barbash, 1979; and Rottenberg, 1980)
The basic charge in civil actions against the government once again is gross negligence. The plaintiffs allege that public officials severely abused their discretionary authority. The crimes are said to have happened because official inaction or incom- petence facilitated the offenders’ inclinations to harm innocent parties. In a few states, governmen- tal bodies cannot be sued even when the negligence of officials clearly contributed to the commission of crimes; the agents and agencies are protected by the English common law doctrine of sovereign immunity. Most states and the federal government permit citizens to sue but impose limitations (for example, financial caps and exemption from puni- tive damages) and invoke special procedures (Aus- tern, 1987; and Carrington, 1978).
Specific charges in third-party liability lawsuits against governmental agencies and officials fit under a number of headings (Austern, 1987). Claims against the police can allege nonfeasance: that officers failed to act to protect individuals to whom they owed a special duty, such as witnesses for the prosecution. Claims can also allege police malfeasance: that officers acted carelessly or inattentively as victims were hurt, as in the follow- ing case:
A woman is stabbed by her husband 13 times. Nearly 30 minutes later, the police arrive in response to her earlier call for help. As the husband wanders around screaming, he kicks her in the head, then drops their son on her unconscious body and kicks her again. Finally, the police restrain him and take him into custody. After eight days in a coma and several months in a hospital, the woman sues the city, three police chiefs, and 29 officers. Her lawsuit alleges that because the assailant was her husband, the police failed to provide her with equal protection under the law, as guaranteed by the Fourteenth Amendment, by handling her numerous calls for help over the years differently than cases of
assaults by strangers. A jury finds the police department negligent for failing to protect her and awards her $2.3 million. The city appeals, and she settles for $1.9 million out of court. (Gelles and Straus, 1988)
When prisoners are not supervised adequately or are released as a result of an administrative error and then inflict harm, suits can allege wrongful escape. When dangerous convicts are released and they injure people whom they had previously publicly threatened, suits can be filed for failure to warn. Claims can also allege wrongful release when, through gross negligence on the part of offi- cials, a high-risk inmate is granted conditional release (probation, parole, or furlough) from a jail, prison, or mental institution and then commits a foreseeable act of lawlessness. The following cases illustrate these problems:
A 24-year-old graduate student in criminal justice is drinking at a fashionable nite spot at closing time. The bar’s bouncer lures her into his van, binds her, drives to a deserted spot, sexually assaults her, and then kills her. He is caught, convicted, and sentenced to life imprisonment. The murdered student’s family sues the 44-year-old bouncer, the bar, and the U.S. Probation Service. The bouncer is penniless, and the bar settles its suit for $375,000. The suit seeks $100 million, charging that the U.S. Probation Service was guilty of gross negligence for failing to monitor the bouncer, who was on probation at the time of the slaying and was known to be a violent ex-convict who was not eligible to work in a drinking establishment. Federal Probation is represented by the U.S. attorney in that district and argues that it cannot be sued. But the agency consents to a settlement of $130,000, of which almost half goes to the three lawyers representing the family (they get a 25 percent contingency fee and the rest covers expenses). Most important to the family, the U.S. Probation Service names its probation-tracking program in her honor. (Italiano and Mangan, 2011)
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An 11-year-old girl is snatched off the street, raped periodically, and held captive for over 18 years in tents and sheds in the backyard of a convict who had previously served time for kidnapping and rape. As the girl grows up, she is impregnated twice and bears two daughters. She is finally rescued at the age of 30, along with her children, now 12 and 15 years old. The three females sue the Department of Corrections and Rehabilitation for gross negligence in supervising the known sex offender, since parole officers making home visits failed to detect their presence in the backyard for about 10 years of her captivity. The state’s inspector general issues a report lambasting the agency’s operations, and as a result parole officers are given smaller caseloads and closer supervision, and high-risk offenders are watched more carefully. Even before the man is convicted, the state legislature votes nearly unanimously to quickly settle the suit for $20 million, even though the government is in the throes of a fiscal crisis. The money will be used to buy the family a home, ensure their privacy, pay for the mother’s and daughters’ education, compensate for lost income, and cover years of psychotherapy. (Thompson, 2010)
Suits against custodial officials and probation and parole agencies raise important issues. The Supreme Court ruled in 1980 (Martinez case) that neither the Constitution nor the Civil Rights Act of 1964 gave the survivors of a person who was murdered the right to sue a state parole board (Carrington, 1980). In upholding the doctrine of sovereign immunity from liability, the justices of the Court argued that government has a legitimate interest in seeking to rehabilitate criminals. Every treatment alternative to totally incapacitating con- victs through maximum-security confinement involves taking risks with the public’s safety. Half- way houses, therapeutic communities, work release, educational release, furloughs, probation, and parole all grant conditional liberty to known offenders who may pose a continuing threat to community safety. Underlying a charge of abuse
of discretionary authority and gross negligence is the assumption that danger can be predicted— but it usually cannot be with any statistical cer- tainty. Some patients and inmates thought to be dangerous turn out to be well-behaved (false positives), and some out on probation or parole enjoying conditional liberty who were rated as posing a low risk may suddenly act viciously (false negatives).
What is predictable is that successful third- party lawsuits by victims against custodial officials and agencies will have a chilling effect on wardens, psychiatrists, parole boards, and others who make decisions regarding confinement versus release. What might develop in these therapeutic relation- ships is a type of defensiveness comparable to the defensive medicine practiced by doctors afraid of malpractice suits. Fear of legal and financial reper- cussions could dominate professional judgments and record keeping. Rehabilitation programs could be severely constrained. Eligible convicts could be barred from such programs because administrators wouldn’t want to jeopardize their careers by releasing them from total confinement. Qualified professionals could be deterred from tak- ing jobs as custodial officials because of exposure to personal liability lawsuits, unless states protect such employees under a doctrine of sovereign immunity.
On the other hand, vulnerable members of the general public need lawsuits as a vehicle to exert some leverage over justice officials and unrespon- sive bureaucracies. And aggrieved parties need a way to hold grossly negligent agency officials accountable, as well as a mechanism to recover losses inflicted by dangerous people who should not have been left unsupervised. Some victims’ advocates see third-party lawsuits as an appropriate remedy to establish a proper balance between two conflicting policy objectives: lowering the crime rate in the long run by rehabilitating offenders through the judicious granting of conditional lib- erty, and maintaining public safety in the short run by incapacitating and incarcerating individuals believed to be dangerous to the community (Carrington, 1980).
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COLLECTING INSURANCE REIMBURSEMENTS
Private Crime Insurance
Private insurance companies are innocent third par- ties that can quickly and routinely provide reimburse- ment for losses. The positive aspect is that a prudent policyholder can be repaid without too many com- plications as long as a formal complaint is filed with the police. The drawbacks are that a potential target must have the foresight to purchase protection in advance; a company must be willing to issue a policy (some people and businesses in high-crime areas have trouble finding an insurer); premiums for the cover- age must be affordable (many people are aware of life’s dangers but do not have the disposable income to pay for the “luxury” of insurance); and exclusions of relatively minor losses (because of deductible clauses) impose serious financial hardships on low- income families (Sarnoff, 1996).
Cautious individuals can protect themselves against a variety of hazards (see Miller, Cohen, and Wiersema, 1996). Life insurance policies can pay sizable sums to the survivors of loved ones who were murdered. Some policies (which cost more) contain a double indemnity clause that grants survivors twice as much if the policyholder dies unexpectedly from an accident or a criminally inflicted injury. Coverage can also be purchased to offset lost earnings (income maintenance) and expenses due to medical bills (health insurance). Property can be insured against loss or damage. Car and boat insurance covers expenses imposed by theft, vandalism, and arson. Home insurance protects against losses due to burglary, some larce- nies (items left on porches or in yards, for example), vandalism, arson, and robbery if the confrontation occurs within the dwelling. Some companies sell robbery insurance that reimburses policyholders for lost valuables such as jewelry or cameras no matter where the crime occurs. A few companies offer protection to businesses whose executives might be kidnapped and held for ransom.
In order for burglary victims to collect reimbur- sements under homeowner policies, insurance com-
panies usually require receipts, photos or videos of valuables, and perhaps serial numbers of lost items. Deductibles, exclusions, limits, depreciation of value due to age and wear, plus the willingness to pay for optional riders (for example, to cover the theft of very expensive jewelry) make complete recovery unlikely (Weisberg, 2008). If detectives determine that the intruder committed a theft due to a victim-facilitated “no force entry” (see Chapter 5), the insurance adjuster may completely reject the careless policyholder’s claim (Reeves, 2006).
Patterns of Loss, Recovery, and Reimbursement
Statistics derived from the National Crime Victimiza- tion Survey confirm some commonsense predictions about insurance coverage and recovery. First, some types of coverage are more common than others. More people are insured against medical expenses than against property losses. Medical and dental costs are potentially more devastating than theft or vandalism of tangible goods, and health coverage often is provided by an employer as a fringe benefit of full-time jobs. Second, high-income individuals are more likely to buy crime insurance than low- income people (even though the poor are exposed to greater risks and suffer higher victimization rates). Third, larger losses are more likely than smaller ones to be reimbursed through insurance claims. The households that are most likely to receive cash set- tlements are those whose cars are stolen. Only a small proportion of families who suffer burglaries and larcenies are reimbursed. An even smaller frac- tion of people who are robbed or pickpocketed are insured against such losses. Most policies have deductible clauses that stipulate that the victim must absorb the first $500 (or some other sum) of the losses and cannot file a claim unless out- of-pocket expenses exceed this figure. Hence, most crime-imposed losses (which usually are small) can- not be recovered (Harland, 1981a).
Studies concerning actual patterns of burglary loss, coverage, and recovery are rare. One revealed that both the average amount stolen and the per- centage of victims who are insured are positively
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correlated with family income. That means that wealthy families lose more to burglars but also are more likely to be insured than low-income house- holds. In one study during the 1970s, only 1 family in 10 had purchased burglary insurance in the low- est income category, but about half the families in the higher-income category were covered. (Pre- sumably, the rich were fully insured, but those data were unavailable.) In sum, although a small number of families recover substantial amounts, insurance provides relief for relatively few burglary victims (Skogan, 1978; and Harland, 1981a).
As for insurance coverage for medical expenses resulting from violent crime, women were more likely to receive reimbursement (73 percent) than men (57 percent). The lowest income grouping (61 percent) and the highest income grouping (95 per- cent) were much more likely to get their out- of-pocket costs paid by health insurance (from the government in the case of the poor; from private companies in the case of the affluent) than the working poor (45 percent) who usually earn too much for Medicaid but too little to afford their own policies. All senior citizens received coverage of their bills under Medicare, but less than half (45 percent) of injured individuals between 20 and 24 years of age had health insurance coverage, according to the NCVS for 2006 (BJS, 2008d).
Federal Crime Insurance
Insurance companies make profits in two ways: they adjust their rates continuously so that they take in more money in premiums than they pay out in claims, and they invest the money paid by policy- holders in order to collect interest, dividends, and rents. To contain costs and limit payouts, companies raise their rates, place caps on reimbursements, impose sizable deductibles, and exclude certain kinds of losses. One irony of the for-profit insurance business is that those who face the greatest risks are sometimes either denied coverage outright or charged exorbitant premiums that they can’t afford.
The insufficiency and unfairness of private insur- ance underwriting practices first received public atten- tion during the late 1960s. The National Advisory
Panel on Insurance in Riot-Affected Areas (part of the National Advisory Commission on Civil Disor- ders) in 1967 examined the plights of inner-city resi- dents and businesses that had suffered losses due to looting and arson during ghetto rebellions. The panel cited a general lack of insurance availability as a factor contributing to urban decay: the closing of busi- nesses, the loss of jobs, the abandonment of buildings, and the exodus of residents from high-crime areas.
In 1968, Congress followed some of the panel’s recommendations and granted relief to those who suffered from insurance redlining (an illegal, dis- criminatory practice that results in denial of cover- age). The Department of Housing and Urban Development Act set up Fair Access to Insurance Requirements plans to make sure that property owners were not denied fire damage coverage solely because the neighborhood had a high rate of arson cases. In 1970, Congress amended the 1968 act to permit the federal government to offer affordable burglary and robbery insurance directly to urban homeowners, tenants, and busi- nesses in areas where such coverage from private companies was either unavailable or unreasonably expensive. Federal intervention into the insurance market to assist actual and potential crime victims was viewed as a last resort (Bernstein, 1972). The Federal Emergency Management Agency currently runs the Federal Insurance Administration.
Once the government began to sell insurance coverage, it became reasonable to ask whether public funds could be set up to bail out families that faced economic ruin because they were not willing or able to pay for private insurance policies, or were inade- quately protected, especially against huge medical bills and lost earnings. Public insurance plans are called crime victim compensation programs.
RECOVERING LOSSES THROUGH VICTIM COMPENSATION PROGRAMS
Most street crime victims never receive criminal court-ordered restitution, for one obvious reason: the offenders are not caught and convicted. For a par- allel reason, most victims never collect court-ordered
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civil judgments: The perpetrators cannot be identified or located, and then successfully sued. Furthermore, rarely can a third party be held partly responsible for the incident and sued for gross negligence. Given the inadequacy of most private insurance coverage when major disasters strike, the only remaining hope for monetary recovery lies with a different sort of third party: a state compensation fund. Reimbursement from a government fund appears to be the only realis- tic method for routinely restoring individuals to the financial condition they were in before the crime occurred. The shortcomings of restitution were dra- matized by this classic case:
A middle-aged man is blinded by assailants, who are later caught, convicted, and imprisoned. Upon their release, they are ordered by the court to pay restitution to the injured man for the loss of his eyesight. Under the arrangement, it will take 442 years for the man to collect the full amount due him. (Fry, 1957)
The following case, which unfolded in the mid-1960s when mothers generally did not work unless their family relied on their earnings, under- scored the need for government programs to furnish assistance to innocent people who suffered devastating losses. Editorials about this tragedy gen- erated public support that led elected officials to set up a state-funded compensation program:
A Good Samaritan comes to the aid of two elderly women who are being harassed by a drunken youth on a subway train. As his wife and child watch in horror, the well-meaning man is stabbed to death by the drunk. The killer is captured and sentenced to 20 years to life in prison. The widow is forced to send her child to live with her mother while she goes to work in order to pay her bills. (Editors, NewYorkTimes, 1965)
The next case, which describes a settlement from a state-run fund, illustrates the kinds of aid that these government boards now provide:
A gunman barges into a building and goes on a shooting rampage. Eleven immigrants taking
a course to learn English, their teacher, and a caseworker are shot to death before the killer takes his own life. The crime victims fund sets up a toll-free number, provides on-site assistance, distributes emergency awards of up to $2,500 to the families of the deceased, and pays for medical and funeral expenses as well as compensation for lost wages and counseling services. (Stanford, 2011)
Compensation is the easiest, simplest, and most direct way of speeding a victim’s recovery and of institutionalizing the notion of helping someone in desperate need of emergency financial support.
The History of Victim Compensation by Governments
The earliest reference to governmental compensa- tion for crime victims can be found in the ancient Babylonian Code of Hammurabi, which is consid- ered to be the oldest written body of criminal law (about 1775 BC). The code instructed territorial governors to replace the lost property of someone who was robbed if the criminal was not captured. In the aftermath of a murder, the governor was to pay the heirs a specific sum in silver from the trea- sury. In the centuries that followed, restitution by the offender replaced compensation by the state. But during the Middle Ages, restitution also faded away. Victims had no avenue of redress except to try to recover losses by suing offenders in civil court.
Interest in compensation revived during the 1800s, when the prison reform movement in Eur- ope focused attention on the suffering of convicts, and in doing so indirectly called attention to the plight of their victims. Leading theorists in crimi- nology endorsed compensation and restitution at several International Penal Congress meetings held at the turn of the century. But these resolutions did not lead to any concrete actions. Legal historians have uncovered only a few scattered instances of special funds set aside for crime victims: one in Tus- cany after 1786, another in Mexico starting in 1871, and one beginning in France in 1934. Switzerland
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and Cuba also experimented with victim compen- sation (MacNamara and Sullivan, 1974; Schafer, 1970; Silving, 1959).
An English prison reformer sparked the revival of interest in compensation in the late 1950s. Because of her efforts, a government commission investigated various reparations proposals and set up a fund in 1964 in Great Britain. Several Austra- lian states and Canadian provinces followed suit during the next few years. New Zealand offered the most complete protection in the Western world in 1972, when it abolished the victim com- pensation program it had pioneered in 1963 and absorbed it within a universal accident insurance system. Everyone in New Zealand was covered for losses arising from any type of misfortune, including criminal acts. The nature of the event, the reason it occurred, and the person responsible for it did not affect compensation decisions (Euro- pean Committee on Crime Problems, 1978; and Meiners, 1978).
The Debate over Compensation in the United States
In the late 1950s, the question of compensation surfaced in American law journals. Initially, distin- guished scholars raised many objections to the idea of having the government provide financial assis- tance to innocent individuals wounded or slain by criminals. But support for the notion of compensa- tion grew when a Supreme Court justice argued that society should assume some responsibility for “making whole again” those whom the law had failed to protect. Soon, well-known political figures of the period came to accept the proposition that special funds should be set up to repay victims. Their enthusiasm was in accord with the liberal political philosophy embodied in President John F. Kennedy’s New Frontier and President Lyndon Johnson’s Great Society: government should develop programs to try to ameliorate persistent social problems.
The proposals of elected officials, the sugges- tions of legal scholars and criminologists, and the pressures of coalitions of interest groups were
necessary but not sufficient to trigger legislatures to take action. Widely publicized brutal and tragic incidents supplied the missing ingredient of public support in the first few states to experiment with compensation schemes. In 1965, California initiated a repayment process as part of its public assistance system. In 1966, New York created a special board to allocate reimbursements. In 1967, Massachusetts designated certain courts and the state attorney gen- eral’s office as granters of financial aid to victims.
Starting in 1965, Congress began to debate the question of federal encouragement of and assistance to state compensation programs. No lobby emerged to pressure elected officials to vote against compen- sation plans. Even private insurance companies did not feel threatened by the potential loss of business. At the hearings, the idea of compensation was endorsed by the American Bar Association, Interna- tional Association of Chiefs of Police, National Dis- trict Attorneys’ Association, U.S. Conference of Mayors, National League of Cities, National Con- ference of State Legislatures, existing state compen- sation boards, judges’ organizations, senior citizens’ groups, and the National Council on Crime and Delinquency (“Crime Control Amendments,” 1973; Edelhertz and Geis, 1974; “Crime Victims’ Aid,” 1978; and Meiners, 1978). The arguments over the pros and cons of governmental compensation raised many important political, philosophical, and prag- matic issues (see Childres, 1964; Schultz, 1965; Wolfgang, 1965; Brooks, 1972; Geis, 1976; Meiners, 1978; Carrow, 1980; U.S. House Committee on the Judiciary, 1980; Gaynes, 1981; and Elias, 1983a).
The most compelling rationales advanced by advocates presented compensation as additional social insurance, or as a way of meeting an over- looked governmental obligation to all citizens, or as a means of assisting individuals facing financial ruin. Proponents of the shared-risk rationale viewed compensation as part of the “safety net” of the comprehensive social insurance system that had been developing in the United States since the Great Depression. All public welfare insurance pro- grams are intended to enable people to cope with the hazards that threaten stability and security in everyday life. Health expenses are addressed by
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Medicaid and Medicare, disability and untimely death by Social Security, on-the-job accidents by workers’ compensation, and loss of work and earn- ings by unemployment compensation. The pre- miums for these state-run compulsory insurance plans are derived from taxation. Criminal injury insurance, like the other types of coverage, pro- vides equal protection against dangers that are reasonably certain to harm some members of soci- ety but are unpredictable for any given individual. All taxpayers contribute to the pool to spread the costs, and therefore everyone is entitled to reimbursement.
The government-liability rationale argues that the state is responsible for the safety of its citi- zens because it monopolizes, or reserves for itself, the right to use force to suppress crime and to pun- ish offenders. Because individuals are not allowed to routinely carry deadly weapons around for their own defense wherever they go, the government has made it difficult for law-abiding people to pro- tect themselves. Therefore, within the social con- tract, the state becomes liable for damages when its criminal justice system fails to fulfill its public safety obligation to its citizens. By the logic of this argu- ment, innocents who have been harmed ought to have a right to compensation, regardless of their economic standing and the type of loss they have suffered.
Those who take a social-welfare approach believe that the state has a humanitarian responsi- bility to assist victims, just as it helps other needy and disadvantaged groups. The aid is given as a symbolic act of mercy, compassion, and charity— and not as universal insurance coverage or because of any legal obligation. According to this theory, receiving compensation is a privilege, not a right, so eligibility and payment amounts can be limited.
Besides these three rationales, several additional arguments were advanced to encourage public acceptance of compensation. Some sociologists and criminologists put forward a social-justice rationale. It contended that the “system” (the institutions, economic and political arrangements, and prevailing relationships within society) gener- ates crime by perpetuating intense competition,
discrimination, unemployment, financial insecurity, and poverty, which in turn breed greed, despera- tion, theft, and violence. Therefore, society owes compensation through its governmental agencies to people who are harmed through no fault of their own.
Other advocates contrasted the attention accorded to criminals with the neglect shown toward their innocent victims. They charged that it was blatantly unfair to attend to many of the medical, dental, emotional, educational, vocational, and legal needs of wrongdoers (albeit minimally and sometimes against their will) at public expense while at the same time abandoning injured victims to fend for themselves. Compensation partly cor- rected this “imbalance.” Finally, some pragmatists anticipated that the prospect of monetary rewards would induce more victims to cooperate with the authorities by reporting incidents, pressing charges, and testifying against their assailants.
Skeptics and critics objected to the notion of government intervention on both philosophical and practical grounds. The earliest opponents of importing this British Commonwealth practice to the United States denounced what they consid- ered to be the spread of “governmental paternal- ism” and “creeping socialism.” They contended that taxpayer-funded crime insurance undermined the virtues of rugged individualism, self-reliance, personal responsibility, independence, saving for emergencies, and calculated risk taking. They con- sidered an expansion of the “welfare state” and the growth of new, expensive, and remote bureaucra- cies to be greater evils than the fiscal neglect of victims. They contended that, unlike governmental bodies, private enterprises could write more effec- tive and efficient insurance policies for families that had enough prudence and foresight to purchase protection before tragedy struck. Other opponents worried that criminal-injury insurance—like fire, auto, and theft coverage—was vulnerable to fraud. Deserving applicants would be hard to distinguish from manipulators who staged incidents, inflicted their own wounds, and padded their bills.
Finally, certain critics did not dispute the merits of compensation programs but objected to their
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establishment and expansion on financial grounds. They argued that it was unfair to compel taxpayers to repay victims’ losses, as well as to foot the bill for the costs of the police, courts, and keeping convicts in prisons. To accommodate this objection, state programs have come to rely more heavily on raising money from penalties imposed on lawbreakers of all kinds, including traffic law violators, rather than tax- payers (see Childres, 1964; Schultz, 1965;Wolfgang, 1965; Brooks, 1972; Geis, 1976; Meiners, 1978; Carrow, 1980; U.S. House Committee on the Judiciary, 1980; Gaynes, 1981; and Elias, 1983a).
A statistical analysis of congressional votes on bills between 1965 and 1980 revealed that Demo- crats (particularly liberal Democrats) tended to favor allocating federal aid to reimburse crime victims; Republicans (especially conservative Republicans) tended to oppose spending federal tax dollars on state compensation programs. The usual exceptions to these patterns were conservative Democrats (generally from southern states) who sided with conservative Republicans against compensation plans, and some liberal Republicans (often from northern states) who joined with liberal Democrats in support of these pro-victim legislative initiatives. In other words, ideology proved to be a better predictor of voting behavior than party affiliation (Karmen, 1981b).
In 1984, Congress finally reached a consensus about the appropriate role for the federal govern- ment on the question of compensation and passed a Victims of Crime Act (VOCA), ending nearly 20 years of floor debates, lobbying, political posturing, maneuvering, and last-minute compromises. VOCA established a fund within the U.S. Treasury, collected from fines, penalties, and forfeitures. Administered by the attorney general, the money was earmarked to subsidize state compensation funds and victim assistance services, and to aid vic- tims of federal crimes (Peak, 1986). In 1989, VOCA guidelines were revised to encourage state programs to expand coverage and to resemble each other more closely. Providing federal matching funds worked out as intended: Every state had set up a compensation program by 1993 (Maine and South Dakota were the last to participate).
How Programs Operate: Similarities and Differences
In all states plus the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands, the ques- tion of whether to compensate victims has been answered for the time being. But the programs vary in many ways, reflecting the diversity in the traditions, populations, crime rates, and resources of the states and the differing rationales on which the programs were based.
Certain requirements are the same in each state (see Parent, Auerbach, and Carlson, 1992). All of the programs grant reimbursements only to “inno- cent” victims. Compensation board investigators always look for evidence of contributory miscon- duct. If it is established that the individual was partly to blame for getting hurt, the grant can be reduced in size or disallowed entirely. For example, appli- cants would not be repaid if they were engaging in an illegal activity when they were wounded (such as being shot while holding up a liquor store, being stabbed while buying drugs, or being beaten after agreeing to perform an act of prostitution). Most boards would rule injured parties in barroom brawls ineligible if they had been drinking, uttered “fight- ing words,” and provoked the fracas in which they were seriously hurt. However, applicants can appeal claims that were denied.
Another common feature is that the programs deal only with the most serious crimes that result in physical injury, psychological trauma, or death: murder, rape, assault, robbery, child sexual abuse, child physical abuse, spouse abuse, other types of domestic violence, and also hit-and-run motor vehicle collisions caused by drunk drivers. Most do not repay people for property that is damaged or lost in thefts, burglaries, or robberies (unless they are elderly or their possessions are essential, such as hearing aids or wheelchairs). Only out-of-pocket expenses are reimbursed: bills not paid by collateral sources such as Medicaid or private insurance such as Blue Cross. Payments can be for medical expenses, mental health services, dental bills, and earnings lost because of missed work. Families of individuals who succumb to their wounds are
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eligible for assistance with reasonable funeral and burial costs; dependents can qualify for a death ben- efit or pension to compensate for their loss of finan- cial support. Some states go further and pay for the services of home health aides and housekeepers, child care, transportation costs for medical treat- ments and court appearances, and even for reloca- tion when necessary (New Jersey Victims of Crime Compensation Agency, 2008). Each program requires that all parts of a claim be fully documen- ted with bills and receipts. Every program prohibits double recoveries. Money collected from insurance policies or other government sources (such as Veteran’s Benefits) is subrogated (subtracted) from the compensation board’s final award. In the statistically unusual cases in which offenders are caught, found guilty, and forced to pay restitution, this money is also deducted from the award. For a claimant to be repaid, the assailant does not have to be caught and convicted. But in every state the applicant must report the crime promptly to the police and cooperate fully with any investigation and prosecution to remain eligible.
Despite sharing these basic features, the 50 state programs differ in many ways: how long victims can wait before telling the police about the crime (from one day to three months, with a mode of three days); how long victims can take before applying for reim- bursement (from six months to three years, with a mode of one year); how much claimants can collect (maximum awards of $1,000 to $50,000 plus limitless medical expenses, with modes at $10,000 and $25,000); whether the program will grant an emer- gency loan before fully investigating a case; and whether lawyers can be hired to help present cases and collect fees. Eligibility rules differ slightly from state to state. For example, survivors of those who are slain can include parents, siblings, and in-laws in some programs, but most states limit coverage only to children and spouses (NACVCB, 2011).
In 1988, amendments to the Victims of Crimes Act mandated that eligibility in all states be extended to innocent family members injured by domestic violence, people hurt by drunk driving crashes, and nonresidents (visitors and commuters). Some states have gone further in expanding the list
of covered individuals and offenses. For example, besides victims of violence such as kidnappings and carjackings, New Jersey compensates indivi- duals injured in hit-and-run collisions, people sick- ened by drug and food tampering, bystanders hurt by criminals trying to elude the police, and people brought in to the state by human traffickers (New Jersey Victims of Crime Compensation Agency, 2008). New York’s Victim Compensation Board will consider claims from individuals who were not physically injured if they were Good Samaritans or suffered from stalking, harassment, menacing, unlawful imprisonment, or even frivolous counter- lawsuits by offenders. The board covers the expenses of those subjected to sexual assaults for forensic examinations at hospitals (to collect evi- dence for “rape kits”) and for people who incur losses from attempted strangulations, whether or not physical injuries result (Stanford, 2011).
On the other hand, entire groups of people may be ruled ineligible. In each state the list varies. Law enforcement officers and firefighters injured in the line of duty generally are excluded because they are covered byworkers’ compensation. In some jurisdic- tions, prison inmates, parolees, probationers, ex-convicts, and members of organized crime are automatically eliminated from consideration (National Institute of Justice, 1998). In eight states, all persons with a felony conviction are ineligible for aid, even if their current predicament has nothing to do with their past illegal activities (Mitchell, 2008).
Many trends in compensation regulations are worth noting. One change over time has been to broaden coverage to include the cost of cleaning up a crime scene, and replacing essential personal property such as eyeglasses and false teeth. In just a handful of states, money is available to offset pain and suffering. Some programs extend eligibility to include incest sur- vivors, people who were sexually assaulted but escaped without physical injuries, the elderly whose homes were burglarized, and parents of missing children.
Initially, the money given out by compensation programs came from general revenues, which essen- tially means from taxpayers. The trend since the 1970s is to rely more heavily on funds derived from penalty assessments or abusers’ taxes (more than half of the
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programs get all or part of their money this way). These funds are raised from fines and surcharges levied on persons convicted of traffic violations, misdemea- nors, and felonies. Some states impose taxes on the earnings of offenders on work release and from collat- eral forfeited by defendants who jump bail. Offender- funded compensation programs reflect a larger trend that compels convicts in some jurisdictions to shoulder all kinds of financial obligations, including restitution, charges for room and board, fines, court costs, and supervision fees. By the start of the twenty-first cen- tury, 90 percent of state and federal funding came from money extracted from offenders. Taxpayer dol- lars supplemented these limited and unpredictable revenues in only 13 states. Although making wrong- doers pay their collective debts has symbolic value as a form of group restitution, albeit indirect and imper- sonal, this is an insufficient source ofmoney tomeet all the critical needs of the eligible and worthy claimants seeking financial aid (Herman and Waul, 2004).
Before the 1980s, in about one-third of the states, only claimants who faced severe financial hardships could pass a means test to become eligi- ble for reimbursement. The others were told they could afford to absorb their losses. By the end of the 1980s, only 11 programs still required their appli- cants to establish a dire fiscal need before receiving an award. Encouraged by VOCA’s financial sup- port, some states have raised the upper limits for awards because of substantial hikes in the cost of living over the years. In the other states with frozen maximum benefits (still usually capped at $25,000, even after years of rising prices), compensation pay- ments are failing to keep up with the rate of infla- tion. Minimum loss requirements and deductible provisions (usually of $100) designed to eliminate minor claims are being scrapped and persist in less than half the states (NOVA, 1988; Parent et al., 1992; NIJ, 1998; and NACVCB, 2008).
Monitoring and Evaluating Compensation Programs
Many arguments about the rightness of compensa- tion hinge on judgments about the type of financial help victims require and on assumptions about the
ability of programs to meet these needs. Because many states have operated programs for several dec- ades, a substantial body of data is available for analysis. The differences between state programs can be considered an asset: each jurisdiction can be regarded as a social laboratory where an experi- ment is in progress. From this viewpoint, various approaches to achieving the same ends are tested to determine which works best. Evaluation is espe- cially important as a means of improving service delivery during periods when the public clamors for additional government aid but is unwilling to pay higher taxes for it.
Program evaluations reveal how well compen- sation boards are meeting their goals. But assessing whether they are succeeding or failing in their mis- sion requires a clear statement of goals. In the 1960s, the early advocates of reimbursing victims from government-administered funds had ambi- tious expectations and made optimistic (and perhaps unrealistic) pronouncements. Their noble, charita- ble, and humanitarian aims of substantially alleviat- ing the economic suffering of injured parties generally have not been realized. Statistics that either support or refute other contentions can be derived from two assessments: process evaluations and impact evaluations.
Process Evaluations: Uncovering How Programs Work Process evaluations focus on the programs’ internal operations and monitor variables such as productivity, overhead costs, and decision-making patterns. Assessments of the efficiency of adminis- trative practices contribute to efforts to eliminate delays, minimize overhead, and iron out inequities. Process evaluations also develop profiles of the typ- ical claimants and recipients of awards. Analyzing data bearing on these questions allows evaluators to provide useful feedback to administrators and board members about trends and patterns that char- acterize their efforts.
Two process evaluations of a sample of the 50 state funds in operation at the end of the 1980s (Parent et al., 1992) and the start of the 1990s (Sarnoff, 1996) shed light on aspects of how com- pensation programs actually work. The programs in
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the survey’s sample granted aid to about two-thirds of the applicants. Most of the funds’ revenue was raised from fines and penalty assessments levied on all kinds of law violators (including drivers who committed traffic infractions), with the rest derived from general appropriations (taxes), and from the federal government in grants from the Victims of Crime Act (VOCA). Most claims concerned drunk driving crashes, homicides, rapes, robberies, aggra- vated assaults, and child abuse cases. Very few claims arose from spouse abuse. The volume of cases handled per year varied dramatically by popu- lation size and crime rate. Case-processing time (how long it took to resolve a claim) ranged from one month to two years, with a mean of 18 weeks. To aid victims during the interim, most states granted small emergency awards. Some programs were run more efficiently than others, in terms of administrative costs as a percentage of total expenditures.
As for decision-making patterns, denial rates indicated that some boards were much stricter than others. Denials can be issued for technical rea- sons, such as failure to supply sufficient documenta- tion of expenses; and for fault, such as the stigmatizing moral judgment that the claimant was guilty of contributory misconduct. Some boards seemed more generous, while others were deter- mined to refute the charges that they “gave money away” and were vulnerable to fraud and abuse.
The average award ranged from a low of nearly $700 to a high of roughly $9,000 (in a state where attorney’s fees were covered). The rate of compen- sation, calculated as a proportion (crimes that were compensated compared to reported crimes com- mitted in that state that year that potentially could have been eligible for compensation) also showed tremendous variation. It ranged from a low of 1 percent to a high of 91 percent and averaged 19 percent. The number of “unserved” victims a year in the late 1980s was estimated to be 55 percent of all potentially eligible persons (innocent, injured, suffering out-of-pocket expenses). In other words, despite outreach efforts (such as public service announcements and posters in police stations and
hospital emergency rooms), more than half of all possible beneficiaries did not know their rights and/or did not even file a claim. Some state program administrators estimated that 67 percent, maybe even 95 percent, of eligible victims did not apply for financial aid. Of course, if more eligible people had been aware of their rights and sought reimburse- ment, their claims would have taken even longer to process. Also, the boards either would have had to cut back on the average size of awards or turn down a greater proportion of applicants, unless the direc- tors could somehow raise more money (Parent et al., 1992; Sarnoff, 1996). Setting up storefront offices to accept claims from people living in high-crime areas helps achieve the objective of reaching the maxi- mum number of deserving individuals in the most effective and efficient manner possible (McCormack, 1991).
The findings from process evaluations about insufficient funding and inadequate outreach con- firm that compensation plans are failing to live up to their humanitarian commitments. Because of their limited budgets, many boards maintain low profiles or even face prohibitions against advertis- ing. Lack of interest on the part of police, prosecu- tors, and hospital emergency room personnel might also be a continuing problem. Some injured parties might be deterred by complex filing procedures and detailed probes into their personal finances (to pre- vent fraud). Others are discouraged when they hear about high rejection rates, long waits, and disap- pointingly small awards. On one hand, even with low rates of applications and awards, underfunded programs can run out of money before the year is over (McGillis and Smith, 1983; Sanderson, 1994). On the other hand, inadequate outreach efforts can result in surpluses if injured parties don’t realize that they can be reimbursed for expenses such as crime- scene cleanups, counseling, and rehabilitation ser- vices (“New Jersey,” 2002).
In 1995, state compensation programs across the country paid nearly $250 million to about 120,000 people harmed by violent crimes. Victims of assault (47 percent) and child abuse (especially sexual abuse) (12 percent) were the most numerous recipients. Almost half of the money went to cover
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medical expenses, and most of the rest was reim- bursement for lost wages, mental health treatment, and funeral expenses. The national average for an award was close to $2,000. By 2010, even though crime rates were substantially lower, the number of recipients had risen to more than 200,000, and the total payout had climbed to close to $500 million. Most of this money from the 50 state programs came from offenders rather than taxpayers. Federal funding provided about 35 percent of the benefits the states disbursed, but fines and assessments imposed on those convicted in federal courts were the sole sources of this aid from Washington. Reimbursements often were for medical expenses, and millions were spent on covering the costs of forensic examinations for persons who had been sexually assaulted. Abused children received nearly 30 percent of the financial aid, families of murdered persons received about 10 percent, and those who were sexually assaulted received about 8 percent. Individuals who were physically assaulted (espe- cially from acts of domestic violence) continued to be the largest group getting monetary help (add- ing up to about half of all successful claimants) (NACVCB, 2011).
Impact Evaluations: Measuring the Effects of Programs Impact evaluations are carried out to compare a program’s intentions with its actual accomplishments. The studies reveal the conse- quences of a program for its clients and the com- munity. To determine whether compensation really eases financial stress, the ratio of award pay- ments to submitted losses can be calculated. To assess a program’s impact on the participation of compensated complainants in the criminal justice system, those who did and did not receive aid can be compared, in terms of their attendance rates as witnesses in police lineups and court proceedings. The diversity of structures and procedures in differ- ent state programs provides opportunities to test which arrangements work best under what conditions.
The findings of research and evaluation studies can have important consequences for the future of compensation. Determining successes and failures
can help resolve the ongoing debates over the pros and cons of compensating crime victims with public funds and the merits and shortcomings of particular rules and practices (Chappell and Sutton, 1974; Carrow, 1980; NIJ, 1998).
The findings of several impact evaluations do not support the hypothesis that the prospect of reimbursement would increase the public’s degree of cooperation with law enforcement. In the 1970s, when reporting rates for violent crimes in states with programs were compared with the rates in states without programs, no appreciable differences were found (Doerner, 1978). Comparing the atti- tudes of claimants in Florida who were granted awards to those whose requests were denied revealed that being repaid did not significantly improve a victim’s ratings of the quality of per- formance of the police, prosecutors, or judges (Doerner and Lab, 1980).
More information is needed about the impact of board decisions on the psychological and eco- nomic well-being of physically injured applicants. Those who were rejected because of what they perceived to be mere “technicalities” (such as wait- ing too long before filing) might feel cheated. Insensitive treatment, lengthy background investi- gations, extensive delays, and partial reimburse- ments can make even successful claimants feel victimized once again (McGillis and Smith, 1983).
One researcher who evaluated the New York and New Jersey programs concluded that claimants ended up more alienated from the criminal justice system than nonclaimants. Instead of reducing pub- lic discontent with the police and courts, compen- sation programs provoked additional frustrations. Applicants’ expectations probably rose when they first learned about the chance of reimbursement, but these hopes were consistently frustrated when most claimants, for a variety of reasons, were turned down or awarded insufficient funds to cover their documented expenses. Three-quarters indicated that they would not apply for compensation again if they were victimized a second time, largely because of their displeasure over delays, eligibility requirements, incidental expenses, inconveniences, their treatment by program administrators, and,
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ultimately, the inadequacy of their reimbursements (Elias, 1983a).
The enactment of compensation programs might have been merely an exercise in “symbolic politics.” This judgment accuses certain manipula- tive politicians of voting for programs that look impressive on paper because they want to appear to be “doing something for victims,” but these elected officials fail to allocate the necessary resources to make the promise a reality. Neverthe- less, the public is favorably impressed by the fore- sight and concern shown by policymakers and legislators toward victims. Unaware that the major- ity of claimants are turned down and that the remainder is largely dissatisfied, voters are led to believe that an effective safety net has been set up to cushion the blows of violent crime (Elias, 1983b, 1986).
In sum, four longstanding problems undermine the effectiveness of these programs. First, outreach is inadequate: too many injured parties are unaware that they are eligible for reimbursement. Only 4 percent of violent crime victims nationwide applied for compensation from state programs in 2002. Second, eligibility is too restrictive: too many claimants are turned down because of overly strict requirements. Third, the awards that success- ful applicants receive too often are not enough to bail them out of their financial predicaments. And fourth, money derived from penalizing and fining lawbreakers never is sufficient to meet critical needs (Herman and Waul, 2004).
And yet, the swift action by Congress to establish the September 11th Victim Compensa- tion Fund demonstrates that governmental organi- zations are capable of taking creative, resourceful, sustained, compassionate, and generous steps to help people rebuild their lives. Could those same unprecedented efforts that aided the more than 4,400 individuals directly injured by the terrorist attacks and the nearly 3,000 survivor families be mobilized on a routine basis to assist the 23 mil- lion people harmed annually by “ordinary” crimes, advocates ask?
Inspired by the September 11th fund, victim advocates called for many reforms. All innocent
parties should be eligible for compensation, not only people injured by violence. All crime-related losses should be reimbursed, and time limits shouldn’t be imposed on ongoing problems (such as PTSD). Everyone who files a complaint with the police should be informed about and helped to fill out a claim. The process of granting aid should be fair, respectful, efficient, and easy to understand. Income tax relief should be granted to offset vic- tims’ losses (currently most do not lose enough money to qualify for tax deductions). Tax revenue should supplement the inadequate funding raised from offender penalties. Legislatures should deter- mine the best practices already implemented in the various states, as well as in compensation programs in other countries, advocates suggest (Herman and Waul, 2004).
CONFISCATING PROFITS FROM NOTORIOUS CRIMINALS
Six people are shot dead in ambushes and many others are wounded by a lone gunman. Dubbed the “Son of Sam” as well as the “.44-Caliber Killer” by the media, this serial killer is eventually caught, convicted, and sentenced to a lifetime behind bars. From his cell, he grants interviews to writers and accumulates about $90,000 in royalties from publishers. The individuals he wounded and the families of the people he killed sue him to prevent him from cashing in on his notoriety. Eight years later, his attorneys arrive at a settlement: all the money he gained will be divided among those he harmed, and they will share any additional earnings he might receive. (Associated Press, 1984a)
■ ■ ■
Four employees are taken hostage by a man who bungles his attempt to rob a bank. The police block his escape route and a lengthy siege ensues. Eventually, the four captives are released, and he is captured, convicted, and imprisoned. Hollywood producers pay him $100,000 for
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the rights to depict his exploits in the movie Dog Day Afternoon. The money is seized by the New York State Crime Victims Board and doled out to his kidnap victims, his lawyers (to whom he owed fees), and his former wife (for alimony and child support payments). (Roberts, 1987)
One additional option for recovering losses remains open to just a handful of victims or their survivors: going after the profits made by offenders who sell their firsthand accounts of how and why they com- mitted their high-profile crimes. Cases such as the two landmark suits cited above dramatize how vic- tims can fight back when convicts seize opportu- nities to cash in on the sensationalism surrounding their well-publicized exploits. The practical issue that arises is when and how victims can take these “fruits of crime” away from those who harmed them.
Writing and Rewriting the Law
In 1977, the New York State legislature passed a forfeiture of assets bill to prevent a vicious serial killer (cited in the first example above) from being showered with lucrative offers for book contracts, movie rights, and paid appearances to tell his inside story. The law stipulated that whenever an offender signed a contract to receive profits from recounting his illegal acts, the company receiving the profits had to turn them over to the government for disburse- ment to the immediate victims or to merge into the state’s compensation fund. The principle behind the law was that it was contrary to the public’s interest to enable violent criminals to gain from retelling their exploits at the same time that the parties they injured struggled financially and suffered renewed emo- tional pain from the additional wave of publicity. In the next few years, 42 states and the federal government followed New York’s lead and enacted similar “Son of Sam” laws (NCVC, 2011b). Public opinion backed this legislative trend. In one poll, 86 percent of the respondents favored a law that would take away profits gained by notorious criminals and distribute this money to their victims (National Victim Center, 1991a).
These statutes went after financial windfalls: fees, advances, and royalties from reenactments of the heinous deeds in movies, memoirs, books, mag- azine articles, tape recordings, records, radio pro- grams, television shows, or other forms of entertainment. If offenders (whether accused or convicted) were paid for expressing their thoughts, opinions, or feelings about their depredations, or for giving graphic descriptions about these vicious acts, their income could be seized by the govern- ment and placed in an escrow account before they could spend it.
The law operates somewhat differently in each state. In most states, the injured parties must first successfully sue the offender for damages in civil court and obtain a judgment in order to be eligible to claim a portion of the profits. In other states, victim compensation programs handle the claims and dole out the accrued profits. It usually doesn’t matter if the perpetrator is convicted at a trial or admits guilt after plea negotiations. Those who are not convicted on the grounds of insanity and even defendants under indictment also can be compelled to turn over their profits in some states. For up to five years, individuals who had incurred direct physical or mental injuries or financial losses could argue in civil court that they were entitled to a portion of the money held by the state in an escrow account. In some states, leftover funds not awarded in damage lawsuits could revert back to the offen- ders. But in other jurisdictions, any remaining money could be used to cover unpaid attorneys’ fees plus the court costs arising from the prosecu- tion or to replenish the state’s victim compensation fund (Stark and Goldstein, 1985; NOVA, 1988; and NCVC, 2011b). However, whenever a notori- ous offender was found guilty of a political crime, or a white-collar swindle, or a vice offense such as running a lucrative prostitution ring or trafficking in drugs, the legal issue of exactly which individuals were entitled to carve up these ill-gotten gains became very complicated.
Notoriety-for-profit laws were primarily sym- bolic gestures intended to drive home the message that crime doesn’t pay. They also were designed to facilitate handing over money to injured parties—but
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from the outset, these laws were controversial. Critics argued that the confiscation of payments by govern- ment had a chilling effect on the First Amendment’s guarantee of freedom of expression. In 1991, the jus- tices of the SupremeCourt agreed and by a vote of 9 to 0 struck downNewYork’s law and all the others like it in various states. In its unanimous opinion (Simon and Schuster v. New York State Crime Victims Board ), the Court recognized that states had an undisputed compelling interest to deprive felons from profiting from recounting their illegal activities and were pursuing a worthwhile goal in trying to transfer the proceeds from criminals to their victims. However, the justices argued that enacting these overly broad state laws unfairly singled out a convict’s “speech- derived income” for a special tax burden and thereby established an inhibiting financial disincentive to create or publish works with a particular content. Publishers, filmmakers, and civil libertarians hailed the Court’s landmark ruling as a victory for authors and their audiences. The critics noted that a substantial body of worthwhile literature and redeeming commentary by notable prisoners might never have been written if those laws were in force years ago.
But others denounced the Court’s decision as a blow to victims’ rights. They undertook the task of redrafting provisions about lawsuits, statutes of lim- itation, fines, forfeitures, and escrow accounts so that they would meet constitutional standards. Soon, state legislatures passed revised “Son of Sam” laws that do not single out royalties from books or movies but target any and all assets these convicts accrue (Fein, 1991; and Alexander, 1992). Several states have gone even further, and prohibit law enforcement officials (such as detectives, prose- cutors, defense attorneys, judges, and witnesses) from making money by telling about their roles in high-profile cases from the time of indictment until the completion of appeals (NCVC, 2011).
However, victims and survivors still face an uphill battle to collect what they believe is due them, as the following widely discussed account illustrates:
A prisoner writes a book about the nightmare of growing up behind bars in juvenile institutions
and state prisons. The inmate’s insightful life story sells so well that it becomes the basis for a play, and well-known writers help him get parole. But just six weeks after he is released, he becomes embroiled in an argument with a waiter over the use of the restaurant’s restroom, and stabs him to death. After he is sentenced to prison for manslaughter, the waiter’s young widow sues him in civil court. The inmate, representing himself, asserts that the waiter’s life “was not worth a dime,” but the jury awards her more than $ 7.5 million. Over the next decade or so, the inmate earns about $115,000 in royalties from his several books and plays, yet the widow collects less than $50,000. In the meantime, he launches two counter lawsuits against her. Exercising her right to appear before the parole board, she argues against his early release. When he is turned down, the infamous convict–author hangs himself in his cell. “After what he put us through,” the widow asserts, “it’s more than a relief, it’s fresh air. What goes around comes around.” (Halbfinger, 2002)
On rare occasion, victims and their families can receive some proceeds from the sale of “murder- abilia”—the artifacts of notorious killers. For exam- ple, the United States Marshals Service auctioned off 58 lots of possessions seized from a demented critic of technology (imprisoned for the rest of his life) who sent letter bombs to professors and others during a 17-year terror spree. The online auction, ordered by a federal judge many years after the trial, raised over $230,000 from the sale of items deemed to be of some monetary value by private collectors who paid top dollar to purchase them. The pro- ceeds were divided up by the next of kin of the 3 people he had killed and the 23 who had been injured by his bombs. But most of the time, the sale of murderabilia merely enriches the speculators who buy and sell artifacts in a ghoulish trade that glorifies the criminal and rekindles the grief of injured parties. Making a profit from the sale of murderabilia is prohibited by law in eight states (Vinciguerra, 2011).
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SUMMARY
Victims can try to recover their financial losses in several ways. Restitution payments directly from the offender’s earnings seem to be a fair and appro- priate method of reimbursement and may provide a solid foundation for redemption and eventual rec- onciliation. Restitution may be viewed as an addi- tional penalty, but also as a way to sensitize and rehabilitate lawbreakers. Unfortunately, many vic- tims never receive any money because their offen- ders are not caught, convicted, and sentenced to restitution, or are unable or unwilling to earn ade- quate amounts of money to pay meaningful installments.
Victims can attempt to sue their offenders in civil court for compensatory and punitive damages. As plaintiffs they have a better chance of winning against defendants than in criminal court because the standard of proof—a preponderance of the evidence—is easier to meet than guilt beyond a reasonable doubt. However, only offenders who are identified and who have substantial exposed assets can be sued successfully. If criminals are not caught or have no tangible assets, victims might be able to launch lawsuits against third parties such as businesses or criminal justice agencies that acted
with such gross negligence that innocent parties were harmed in predictable ways by dangerous individuals.
Private insurance coverage can repay losses from assaults, car thefts, burglaries, robberies, and slayings. But many victims could not afford the pre- miums, did not have the foresight to take out a policy, or could not find a company that would sell them coverage at reasonable rates.
Victim compensation funds have been set up in most states since the 1960s, although they initially met considerable political resistance. Injured parties may receive reimbursement even if the perpetrators are not caught and convicted. However, only inno- cent victims of violent crimes, not people who have suffered losses from property crimes, currently are eligible for financial aid that covers lost earnings and out-of-pocket medical expenses. Many state funds do not have enough money from penalty assess- ments and the general treasury to quickly and ade- quately reimburse all eligible applicants. A small number of individuals might be able to launch law- suits to claim a portion of the money that certain convicts who viciously harmed them made by cash- ing in on their notoriety.
KEY TERMS DEFINED IN THE GLOSSARY
abuse of discretionary authority, 391
attached, 386
battery, 384
causes of action, 384
community service, 373
compensatory damages, 384
composition, 374
contingency fees, 387
conversion of chattel, 384
creative restitution, 373
deductible clauses, 392
deep pockets, 387
default judgment, 386
defendants, 384
depositions, 385
discovery, 385
double indemnity clause, 392
failure to warn, 390
false imprisonment, 384
false negatives, 391
false positives, 391
first party, 385
funneling, or shrinkage, 379
garnished, 386
government-liability rationale, 396
interrogatories, 385
judgment-proof, 387
judgments, 384
malfeasance, 390
means test, 399
negligence, 387
nonfeasance, 390
pain and suffering, 386
pecuniary damages, 384
penalty assessments, 398
plaintiffs, 384
pleading, 384
preponderance of the evidence, 386
process server, 385
punitive damages, 384
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redlining, 393
second party, 384
shared-risk rationale, 395
social-justice rationale, 396
social-welfare approach, 396
sovereign immunity, 390
statute of limitations, 385
subrogated, 398
symbolic restitution, 373
third parties, 387
torts, 375
trespass, 384
wrongful death, 384
wrongful escape, 390
wrongful release, 390
QUESTIONS FOR DISCUSSION AND DEBATE
1. Explain how restitution can serve many distinct purposes.
2. Review both the advantages and the disad- vantages victims face when they sue offenders in civil court.
3. Why are third-party lawsuits potentially lucra- tive to victims but also highly controversial?
4. Summarize the arguments that favor the establishment of victim compensation funds by
state governments using tax revenue. Then present arguments that taxpayers’ money should not be used to provide financial reim- bursement to victims.
5. Why is there so much controversy surrounding laws that compel criminals to repay their vic- tims from any profits they gain from their notoriety?
CRITICAL THINKING QUESTIONS
1. Devise a restitution program that would place burglars and robbers in jobs that pay a living wage so that they could repay their victims in installments in a reasonable amount of time. Then anticipate the objections that might be raised against this program.
2. Even though many possible sources of reim- bursement exist—court-ordered restitution, pri- vate insurance coverage, state compensation funds, civil lawsuits, and “notoriety-for-profit” laws—why do so many victims still fail to receive any repayment of their losses and expenses?
SUGGESTED RESEARCH PROJECTS
1. Locate articles in a news database about civil lawsuits on behalf of victims. Find out about their victories and defeats. Were any of the suits against third parties? Summarize the details.
2. Locate and interview insurance agents in your area who have handled claims by crime victims. What kinds of losses did these policyholders incur, and what kinds of injuries did they sus- tain? Were these customers fully reimbursed for out-of-pocket expenses? If not, why not?
3. Look up information on the Internet about the state compensation fund in your hometown or in the jurisdiction of your college. Examine its annual report. What are the eligibility require- ments?What are the caps that limit payments, and what proportion of applicants received awards? What was the average amount of compensation that successful applicants were granted, and for what kinds of expenses were they reimbursed? How long did the process take, on average?
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