APPENDIX PAUL, WEISS, GOLDBERG, RIFKIND, WHARTON & GARRISON, Hon. JOSEPH D. TYDINGS, United States Senate, Washington, D.C. DEAR JOE: This is in reply to your letter to me of December 2nd. I am very much interested in the proposal to compensate victims of crime. This is a subject which I believe I first introduced in this country in my James Madison Lecture at New York University School of Law on February 11, 1964, which was printed in the NYU Law Review that year. Recently I have contributed a preface to a symposium on that subject for the Southern California Law Review. I am enclosing a copy of this preface which brings up to date my views on the subject. You will note that I left blank the question of how many states have now provided for relief of victims of crime. My research has indicated that five states have adopted this proposal as of September 3, 1969-California, Hawaii, Maryland, Massachusetts and New York. However, the editors of the Southern California Law Review indicated in their correspondence with me that there are nine states that now have such a program. In sending in my preface, I left it to the editors to make a further check to see exactly what the situation was in the several states. If you are to use my material in any published form, I would appreciate it if your staff would make the necessary insert on page 1 of my statement. I trust this will serve your purposes. With kindest personal regards, I am Yours cordially, Attachment. ARTHUR J. GOLDBERG, SEPTEMBER 3, 1969. PREFACE TO SYMPOSIUM ON COMPENSATION FOR VICTIMS OF VIOLENCE (By Arthur J. Goldberg) In 1964, during my service on the Supreme Court, I delivered a lecture at New York University Law School in which I recommended public compensation for victims of violence. Serious consideration of a system of government compensation for victims of crime was long overdue in the United States. Since then it has been heartening to see the fruition of this idea. Back in 1964, the possibility of compensating victims of violence with public funds in a manner similar to Workmen's Compensation had received little or no serious consideration in this country.* Subsequently legislation providing for such compensation has been enacted in and proposed in many more. Whereas several years ago discussion about compensation for victims of violence was theoretical, now it is possible to confront the problem in a practical context. This Symposium is a valuable and timely contribution to intelligent and effective action in this area. Compensation for victims of violence is not a new concept. It has been practiced in various forms since ancient times. Both the Mosaic Law and the Code of Hammurabi provided for public reparations to individuals who suffered criminal assaults, at least under some circumstances. Such compensation was generally awarded only when the criminal was not caught, and was a way of Among foreign countries, only New Zealand had enacted such legislation. Since my lecture, England and New South Wales in Australia have followed suit. inducing the government to do everything possible to apprehend the criminal. Compensation was motivated less by a concern for the victim than by a desire to punish society for failing to find the criminal. In contrast, today's proposals for compensating the victims of violence are motivated-and properly-by a humanitarian desire to alleviate the suffering of victims of violence. Crime, to its victim, is much like a natural disaster: it strikes without warning, calamitously, and often inflicts ruinous financial and physical harm. The very considerations which give rise to disaster relief amid floods or hurricanes require also that relief be available to the victims of crime. Indeed, such relief is especially appropriate in light of the responsibility which society must bear for the crime itself. Crime is, after all, a sociological and economic problem as much as it is a problem of individual criminality. For all our affluence, the latest Census Bureau report indicates that 25.4 million Americans live in poverty. As our criminologists have amply demonstrated, this poverty and crime are inextricably connected. The ranks of the economically deprived produce the great bulk of our prison population as well as many of the victims of crime. Attempts to understand the roots of crime take us into a complex of factors, including economic deprivation, alienation, racial discrimination, and ignorance. In a fundamental sense, then, one who suffers the impact of criminal violence is also the victim of society's long inattention to poverty and social injustice. It is only right that society, through a program of public compensation, recognize its obligation toward these victims. As a practical matter also, society alone is able to assist the victims of crime. Techniques such as civil suits or insurance have little usefulness where the criminal is without assets and the victim is too poor to pay insurance premiums or hire a lawyer to prosecute the suit. Unfortunately, this is all too frequently the case. In the end, the victim ends up sustaining the burden of medical expenses, lost wages, and related expenses. Where the burden is too heavy, it is. of course, society which pays the cost also in terms of lost jobs, unemployment compensation, welfare, and a dangerous feeling of insecurity. It is only realistic that society, through a program of public compensation, address itself explicitly to costs which it bears in any case. It would not surprise me if a plan of public compensation turned out to be actually less socially costly than the present arrangement of letting the harm fall on the victim. Such a program of public compensation would be practical also in its impact on rising crime rates. By requiring victims to report crimes promptly so that they might recieve compensation, such a program could help law enforcement authorities apprehend criminals. This requirement could reduce the crime rate in many ways: first, prompt apprehension would remove from society criminals who would otherwise remain at large to commit further crimes; second, the very prospect of more effective law enforcement would deter the would-be violators from commiting criminal acts. In addition, a requirement of prompt reporting of serious crimes could help reduce the number of crimes which go unsolved; this number has been increasing every year. These humanitarian and practical consideration are reinforced by our understanding of what the Constitution and laws of our nation require. In recent years. the Supreme Court has at last implemented the equal protection clause with respect to the criminal offenders: Gideon, Escobedo and Miranda, landmark decisions of this decade, deal with the criminal accused right to equal protection of the law. There is a growing realization that a just society requires the law to extend its protection equally to all, including the poor, the black, and the criminally accused. Even though I cannot with propriety postulate that the Constitution requires compensation for victims of violence, I can state my opinion that the victim of crime has, in a fundamental sense, been denied the "protection" of the laws, and that society should assume some responsibility for making him whole. What the equal protection clause of the Constitution does not command, it may still inspire. Sen. JOSEPH D. TYDINGS, NORTHEASTERN UNIVERSITY, Boston, Mass., Dec. 10, 1969. Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR TYDINGS: In answer to your letter of December 2 may I take the liberty of availing myself of this opportunity of submitting my views on the victim compensation legislation to you. Find, please, enclosed xeroxed copies of this letter in a number enough to supply each member of your Committee with it and one for Senator Yarborough. First, may I express my views on the general key issues attendant to compensation to victims of crime, and at the end those specifically related to the actual S. 2936 legislation. Naturally, in case you have any further questions, please feel free to write or call, and to be at your disposal will be my privilege. The idea of compensation or restitution to victims of crime is many centuries old, but it has come into vivid modern currency only after the late Margery Fry's pen drew popular attention to "Justice for Victims" (1). The origin and historical perspective of victim compensation have been discussed in recent years several times (2), and as the long past career of restitution indicates, the personal reparation by the offender or the offender's family to the victim seems to be one of the basic pillars of primitive and early Western law. When political institutions were largely based upon kinship ties or tribal organization, and when there was an absence of a central authority to determine guilt and the form of punishment, some forms of pecuniary compensation were common practices. Not only the death fine in Greece, but in still earlier ages, when the Mosaic Dispensation was established among the Hebrews, traces of restitution to the victim are apparent. Restitution required by the Indian Hinduism, compensation in the Law of Moses, and the criminal's obligation to pay as regulated by the Code of Hammurabi (formulated about 2200 B.C.), are only examples of the early appearance of compensation to the victim in social control systems. The Code of Hammurabi was one of the first set of rules which demanded the criminal's obligation to compensate not only in the interest of the victim, but maybe first of all for the purpose of increasing the severity of the criminal's punishment; this Code represents a solid evidence for the common past of punishment and compensation, it was a merger of civil and criminal stipulations, and an early forerunner of the Medieval "composition." The increasing importance of economic goods brought about changes in the delictual conditions, and started to transform the system of responsibility. The personal revenge and the blood-feud started to fade out and the customary physical retribution began to be replaced by financial compensation. The criminal and his victim introduced the "redemption of revenge" (in its original German Loskauf der Rache), and submitted the judgment of guilt to negotiation. In a sense, this Loskauf der Rache may be seen as the historical origin of our present day court practice of “negotiated justice". However, it was only toward the end of the Middle Ages that the concept of victim compensation was closely related to the concept of punishment (3), and was temporarily included in penal law. For example, under several systems in early American law, a thief, in addition to his punishment, was ordered to return three times the value of the stolen goods, or in the case of insolvency to place his person at the disposal of the victim for a certain time (4). In the Germanic common laws a further refinement transformed retaliation into the system of the so-called "composition", by which even murder could be compensated for between the wrongdoer and the nearest relative of the slain (5). The "law of injury" seems to have ruled by the idea of reciprocity (6). The change from vengeful retaliation to composition was part of a natural historical process. As tribes settled down, reaction to injury or loss became less severe, and compensation to the victim served to mitigate blood-feuds. Composition offered an alternative that was in many ways equally satisfactory to the victim; it combined punishment with damages. If the injured party accepted the offered monetary satisfaction or something else of economic value, he was fully revenged and the "criminal procedure" was complete. The amount of payment depended on the importance and extent of the injury. The Germanic common laws were objective: composition was determined by the effect of the wrongful act, and not by the offender's subjective guilt. It is difficult to pinpoint the start of new developments in community judicial control, since the community already exercised a certain collective control over the extent of compensation. The bridge to "state criminal law" was supported by the system of composition, and the settlement of payments by periodical tribal assemblies provides an early example of judicial proceedings. Punishment, reparation, restitution, compensation-all were represented and unified in the "composition", and the influence of state power over composition gradually increased. The community claimed a share of the victim's compensation, and as the central power in a community grew stronger its share increased. One part of the composition went to the victim (Wergeld, Busse, emenda, lendis); the other part went to the community or the king (Friedensgeld, fredus, gewedde) (7). This twofold payment enabled the offender to buy back the security that he had lost. The double nature of the payment shows clearly the close connection between punishment and compensation. Before long the victim's right to restitution began to shrink, and the fine, that went to the state, gradually replaced it entirely. The payments continued, but now the king or overlord took all of it. After the ancient system of law, discretionary money penalties took the place of the old wites, while the bot gave way to damages, assessed by a tribunal (8). As the state "monopolized" the institution of punishment, the rights of the injured were slowly separated from the penal law: composition, as the obligation to pay damages, became separated from criminal law and became a special field in civil law (9). With this development, the "golden age" of the victim came to an end. It was an era where there was no room for societal or other considerations in the criminal procedure; the procedure was exclusively aimed at the private compensation of the victim. In this period the victim was not only the main or essential issue of the criminal case; it was the only issue. At no other time in the history of crime has the victim occupied such an advantageous position in criminal procedure. But by the time when the state took over the administration of punishment, the rights of the injured party were gradually infringed upon, and the decline of the penological importance of restitution gained theoretical support from the endeavor to find different bases for penal and civil liability. Since the era of composition, generally speaking, the conventional view is that a crime is an offense against the state, while a tort is an offense only against individual rights (10). In accordance with this thinking, crime means only the offender and his offense; the victim's relationship to the crime is viewed in a civil rather than in a criminal light. However, the system of composition surrendered only after a struggle; even after the German-Busse penal law there are records of victims who, in spite of the common law character of the criminal law, asked for indemnification and personal satisfaction as well as public punishment. The connection between crime and restitution has clearly lessened, but could not be completely disregarded, even after the introduction of the procedure of inquisition, in which the theoretical and practical distinctions between the demands of penal law and the victim were most acute. Court practice in the sixteenth and seventeenth centuries made possible the so-called adhesive procedure (Adhäsionsprozess), which opened the way for discretion by a court, concerning the victim's claim for restitution, within the scope of the criminal proceedings (11). Penal codes of the nineteenth century also seemed to give some support to the idea of restitution in the form of the adhesive procedure; this procedure appears in about half the laws of the federal German states. Later on, however, the situation got worse, and even in the German law of criminal procedure, the idea of compensation or restitution was kept alive only by the force of tradition (12). The idea of compensation to victims of crime has become dull and unimportant, and, perhaps except the wretched victim and his family, both the law and lay public seemed to be almost bored by the restitutive aspects of the harm or injury caused by the crime. As William Tallack bitterly claimed, "the unfortunate victim of criminality was habitually ignored" (13). In no legal system could a victim of crime enjoy an expectation of full restitution for his suffering caused by the offender's wrongdoing. In the rare cases where a state compensation system was established, the system has either been ineffective, or it did not work at all; where no system of state compensation was introduced, the victim had to be, in general, faced with the insufficient remedies offered by civil procedure and civil execution. While the punishment of crime has been regarded as the concern of the state, the injurious result of the crime and the damage to the victim has become a private matter. "It is perhaps worth noting", suggested Harry Elmer Barnes and Negley K. Teeters, "that our barbarian ancestors were wiser and more just than we are today, for they adopted the theory of restitution to the injured, whereas we have abandoned this practice, to the detriment of all concerned" (14). The general view developed that no matter what the cause of damage may be, the claim for compensation or restitution, even if it was caused by crime, is a civil matter only and not to be connected with the fate of the criminal case. The fact that a tort may also be a crime is recognized only to the extent that some legal systems allowed suit for restitution for injuries caused by crime to be brought within the scope of the criminal procedure. No distinction has been made, however, between penal and civil damages; there existed but a single concept of damages. The idea of compensation to victims of crime, in its present day understanding, has virtually succumbed. Although advocates of restitution and defenders of the victim's role did not look on with folded arms, and a number of international congresses as well as textbooks pressed for the reparation to the victim (15) it was not before Margery Fry published her article in The Observer in 1957 that the idea was reborn. Followed by a research, done by the present writer, and announced by the English Home Secretary's White Paper on "Penal Practice in a Changing Society", presented to the Parliament in February 1959, and later in the year by a "Round Table" symposium in the Journal of Public Law, Fry's article on "Justice for Victims" in London's almost two centuries old Sunday paper had a very favorable reception. These voices revived the idea of victim compensation, and represented in this new era the starting plea for a "better help" for the victim of crime. They were by no means the last voices; since then, attention has frequently been called to the hardship that ensues after a person is attacked by a criminal. The reaction of the lay and expert public gave the impression that a movement is afoot, and most legal systems are going to reexamine the problem of victim compensation. One almost had the feeling of some revolution in the understanding of crime, which is coming about in our time to teach us to accept the thesis that we cannot Ideal with crime without dealing with the victim. The dynamics of the crime problem seemed to emerge on the horizons of criminal justice, with the increasing recognition of the broadened notion of the concept of responsibility in the criminal-victim relationship, an important segment of which would be a new and sophisticated version of restitution or compensation to victims of crime. A general agreement seemed to be established that the laws in force are not effective in repairing the harm, injury, or other disadvantage caused by crime to the victim, and rather urgent legislative steps have to be taken in order to find a functional answer to the crisis of the victim. The academic platform pressed for legislative solutions. Indeed, immediate actions followed the popular and justified demand. Cuba and Switzerland already have had a rather modern victim compensation scheme for many years before the end of the fifties when the attention was called to the "victim-crisis". In the new era New Zealand was the first with its "Criminal Injuries Compensation Act 1963", bringing a compensation system into force by January 1, 1964, just very shortly before England's efforts were materialized. Although a decade of arduous struggle for public recognition prevented the English victim compensation scheme from becoming the chronological first in the series of modern models, England (and Wales and Scotland) will no doubt be remembered as the pioneer in emphasizing the idea in our present-day penal systems. In rather quick succession in the United States first California, then New York, and after them the Commonwealth of Massachusetts, Maryland, and Hawaii introduced compensation of victims of violent crimes, several Canadian Provinces have begun compensation programs, and some other states are planning similar legislative action. Since the summer of 1965 a Federal bill (the Yarborough proposal) is waiting the positive response of the United States Congress. Among the foreign countries Italy is in progress of following the constructive examples. "Programs", as pointed out by Gilbert Geis, "designed to compensate persons injured by crimes of violence represent in an important sense an attempt to placate a public opinion often unnerved and resentful of what is viewed as a rising tide of aggressive criminal activity" (16). Indeed, many of the efforts that have been made are for cooling public anger against crime, rather than for achieving a better understanding of it. New York legislators, for example, gave attention to the idea of victim compensation apparently because of con |