The Debate over Compensation in the United States

The Debate over Compensation in the United States

The Debate over Compensation in the United States
The Debate over Compensation in the United States

In the late 1950s, the question of compensation sur- faced in American law journals. Initially, distin- guished scholars raised many objections to the idea of having the government provide financial assistance to innocent individuals wounded or slain by crim- inals. But support for the notion of compensation grew when a Supreme Court justice argued that soci- ety should assume some responsibility for making whole again those whom the law had failed to pro- tect. 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 Soci- ety: Government should develop programs to try to ameliorate persistent social problems.


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The proposals of elected officials, the sugges- tions of legal scholars and criminologists, and the pressures of coalitions of interest groups were nec- essary 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 encouraging and aiding state compensa- tion programs. No lobby emerged to pressure elected officials to vote against compensation 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, International Associa- tion of Chiefs of Police, National District Attorneys’ Association, U.S. Conference of Mayors, National League of Cities, National Conference of State Leg- islatures, existing state compensation 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 pragmatic issues (see Childres, 1964; Schultz, 1965; Wolfgang, 1965; Brooks, 1972; Geis, 1976; Meiners, 1978; Carrow, 1980; U.S. House Committee on the Judi- ciary, 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

programs are intended to enable people to cope with the hazards that threaten stability and security in everyday life. Health expenses are addressed by Medicaid and Medicare, disability and untimely death by Social Security, on-the-job accidents by workers’ compensation, and loss of work and earnings by unemployment compensation. The premiums for these state-run compulsory insur- ance plans are derived from taxation. Criminal injury insurance, like the other types of coverage, provides 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

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institutions, economic and political arrangements, and prevailing relationships within society) gener- ates crime by perpetuating intense competition, dis- crimination, unemployment, financial insecurity, and poverty, which in turn breed greed, desperation, theft, and violence. Therefore, society owes com- pensation through its governmental agencies to peo- ple 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 individuals 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 considered to be the spread of “governmental paternalism” and “creeping socialism.” They contended that taxpayer-funded crime insurance undermined the virtues of rugged individualism, self-reliance, per- sonal responsibility, independence, saving for emer- gencies, and calculated risk taking. They considered an expansion of the “welfare state” and the growth of new, expensive, and remote bureaucracies to be greater evils than the fiscal neglect of victims. They contended that, unlike governmental bodies, pri- vate enterprises could write more effective and effi- cient 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 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 taxpayers (see Childres, 1964; Schultz, 1965; Wolfgang, 1965; Brooks, 1972; Geis, 1976; Meiners, 1978; Carrow, 1980; U.S. House Com- mittee 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 pre- dictor 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


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funds worked out as intended: Every state had set up a compensation program by 1993 (Maine and South Dakota were the last to participate).

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