In light of the foregoing considerations, the Commissioner recommends against the enactment of S. 2936.

The District of Columbia Council concurs in the views expressed by the Commissioner in this report.

The Commissioner of the District of Columbia has been advised by the Bureau of the Budget that, from the standpoint of the Administration's program, there is no objection to the submission of this report to the Congress.

Sincerely yours,

CHARLES T. DUNCAN,
Acting Assistant to the Commissioner,
For: WALTER E. WASHINGTON,
Commissioner.

Mr. PORTER. For the record, my name is George W. Porter. I am an assistant corporation counsel in the Division of Legislation and Opinions.

As was submitted today to the committee, the letter of December 17, addressed to the chairman relating to this bill, the salient paragraphs read as follows:

The Commissioner

And, I might say, the District government

is sympathetic to the fact that all too often the victim of a criminal offense must himself bear the cost of medical treatment and other costs resulting from the commission of such offense.

The CHAIRMAN. The letter speaks for itself, Mr. Porter.

Do you have anything other than the letter?

Mr. PORTER. Only to stress the Government's desire to study this problem further and to stress its sympathies with the objectives of this bill.

The CHAIRMAN. We are going to probably move this bill out in January or maybe February. I am impressed that we need something like this, so if you have anything further, need further study, you had better get it to us by the middle of January.

I note that the basic reason the Mayor seems to mention is that it is going to cost money, and I can sympathize with his problem. But he is going to have to have a better reason than that to, at least, persuade me.

So, I wish you would take back the thought that we are impressed with this bill. We think that we are very likely going to move it by the middle of January or the beginning of February; so, if they have any further comments, recommendations, or specifics, they should get them down to us.

Mr. PORTER. All right, sir.

Mr. Chairman, it would seem to me that the District of Columbia will recommend a bill closer to the California approach than to the

The CHAIRMAN. You heard what our witnesses have had to say about California's bill; did you not?

Mr. PORTER. I did not hear everything they had to say.

The CHAIRMAN. My judgment is that you do not waste too much of your time with the California proposal, because that is not verv impressive with us. We want a proposal that is going to take care of. or at least part of the way toward taking care of, the problems of innocent victims of violent crime. I think some of the thoughts the Illinois study has, obviously, are meritorious.

I do not want there to be any raid on the Treasury, and we are concerned with the cost. On the other hand, we want something better than just public relations surface treatment which California has provided

Mr. PORTER. I look forward to the opportunity to study the Illinois material which was furnished today.

I will call attention to a statement that was quoted in Senator Yarborough's testimony, this book to which he referred, the book "The Victim and His Criminal," a study of functional responsibility by Stephen Shafer, published in 1968. On page 134, in the section relating to what they call "The Yarborough Proposal," it is stated:

Yarborough suggests that "it is preferable to think of this proposal in terms of the social welfare program rather than as one establishing true legal right." If this is true, the dispensation of criminal justice and the compensation of victims should be separated. In compensating the victim, we do not want the criminal guilt of the defendant to be in issue.

We feel that the language, when I refer to the California situation, I refer to the fact they regard this as an aid rather than as a compensation or restitution or reparation. It is an aid to the victim of crime, and we are sympathetic to that, and we would like to help the victims of crime just as we would like to, and do to a large extent, help other hardship cases. We do not know that we ought to beThe CHAIRMAN. You cannot have your cake and eat it, too. Either you want to help them or you do not want to help them. Mr. PORTER. We do want to help them.

The CHAIRMAN. Just so long as it does not cost money.

You have not reached me yet.

Mr. PORTER. Well, sir, as I say, we need to study this further. I would like to see the Illinois proposal.

The CHAIRMAN. Fine.

Mr. PORTER. So, I would like to come back to you.

The CHAIRMAN. All right. Fine. We appreciate your taking your time and effort to be with us, and we wish you the very best.

Mr. PORTER. Thank you, Mr. Chairman.

We will now welcome Dean Page Keeton, of the University of Texas Law School.

STATEMENT OF PAGE KEETON, DEAN, UNIVERSITY OF TEXAS LAW SCHOOL

The CHAIRMAN. You come highly recommended, Dean Keeton. Mr. KEETON. Mr. Chairman, it is a real privilege to appear and, of course, Senator Yarborough's remarks about me should be discounted, because our friendship goes back to about 1925.

The CHAIRMAN. Let me suggest this, Dean Keeton. We are under some strain for time. I will incorporate your statement into the record in its entirety and ask you to direct your testimony into certain areas. We are concerned about whether the "pain and suffering" provision ought to be in there.

(The prepared statement submitted by Mr. Keeton reads in full as follows:)

PREPARED STATEMENT OF PAGE KEETON, DEAN, UNIVERSITY OF TEXAS SCHOOL OF LAW

One of the most encouraging national phenomenon of the past decade has been the focus of public attention upon our system of criminal justice. Many significant steps have been taken to remedy the inequities, inefficiencies and inadequacies of that system. The Manhattan Bail Project raised questions about our archaic, and abusive system of pretrial release, and generated significant reforms in that area. The Supreme Court has focused attention upon the unfairness of much of our criminal procedure and has given new dimension to the concept of due process of law. The substantive criminal law is the subject of an unprecedented wave of reform and revision. Sparked by the American Law Institute's Model Penal Code, the great majority of American jurisdictions have either recently revised their criminal codes or are in the process of revision. The American Bar Association has recently completed its excellent study of the criminal justice system and action is being taken to implement its recommended Minimum Standards of Criminal Justice. The President's Commission on Law Enforcement and Administration of Justice undertook a monumental study of the criminal justice system and made many positive recommendations for improvement in all areas. The Omnibus Crime Control and Safe Streets Act of 1968 is having a pervasive impact upon the states and local governments by facilitating evaluation, planning and action toward improving the system. In his first major address upon assuming office, Chief Justice Burger called for study and action to make our correctional system effective, and urged attention to the rehabilitative ideal. These are just a few examples of the activity in this vital area.

I believe that this attention to long-neglected problems in our criminal justice system reflects a broad-based public concern for justice and equality. With all of the activity in the area and this thorough inspection of the problems it is not surprising that the plight of the innocent victim of crime has received increased attention and that plans for compensating victims of crime are being widely discussed and that several states have enacted such programs.

The proposal for the government to compensate innocent victims of crime for their personal injuries is an appealing one, and I am in favor of some such plan as that suggested by Senator Ralph Yarborough in Senate Bill 2936. I appreciate this opportunity to explain why I think the idea is justifiable and expresses sound public policy. I would also like to discuss some of the details of Senate Bill 2936 and note a few provisions on which I differ, and suggest alternatives.

The fundamental issue in considering this proposal is why should the government assume the responsibility of compensating victims of crime, but not do so for tortious conduct generally? Is there a rational basis for distinguishing between the victim of tortious criminal conduct and the victim of other tortious conduct?

A theoretical justification for the distinction is based on the proposition that the government has assumed the duty to protect its citizens from crime, and when the government fails to fulfill that duty and allows a citizen to be injured by a criminal act, it becomes liable to the victim for the failure. Jeremy Bentham presented this rationale.1 More recently, in 1964, former Justice Goldberg indicated that the rationale might approach constitutional dimension through the equal protection clause of the fourteenth amendment: "The victim of a robbery, or an assault has been denied 'protection' of the laws in a very real sense, and society should assume some responsibility for making him whole." " These reasons are not to me convincing.

2

My reason for favoring a plan of compensation is the absence of any effective remedies available to the victim of crime. The victim has a right to bring a civil action against the criminal, but this is a notoriously empty right. Even if the perpetrator can be identified and apprehended, there is a high probability that he cannot satisfy a civil judgment. A recent study conducted in Toronto, Canada, by the Osgoode Hall Law School research staff surveyed the victims of serious crimes of violence committed in Toronto during 1966. It was found that 74.2 percent of the group suffered some economic loss. A researcher reported that "Probably the most startling finding of the study was how illusory the tort right was; only 1.8 percent of the respondents collected anything from their

1 The Works of Jeremy Bentham 589 (limited ed. 1962).

2 Goldberg, Equality and Governmental Action, 39 N.Y.U. L. Rev. 205, 224 (1964).

attackers.

Only 4.9 percent even tried to collect, most believing it was not worth the extra expense involved to obtain an unenforceable judgment. "The Osgoode Hall study has disclosed, therefore, that the tort suit, although in theory available to assist the crime victim, is in practice powerless to do so.' Even in the rare case where a person is injured by a solvent criminal, the government's dealing with the offender often forecloses or interferes with the possibility of civil recovery. The government's interest in arresting and imprisoning him prevents him from earning money that could compensate the victim.* Furthermore, "one effect of requiring the accused to employ his available funds to pay the costs of his defense may be to exhaust or limit the funds from which the victim may recover in a civil suit for the damages against the accused.' Thus, not only is the right of civil recovery limited by the nature of the criminal, but the government often takes an active role in diminishing what little possibility of recovery may have existed. The interests of society in punishment, deterrence, and rehabilitation interfere with the interests of the victim.

An independent basis for preferring that society bear the cost of injuries caused by crime rather than the victim is simply that society is able to distribute the cost of this risk Society generates crime, and a price of living in society is the risk of harm resulting from crime. Since everyone is a potential victim of violent crime, we should all bear a portion of the risk. It has been suggested that private insurance plans are adequate to deal with the problem, that the government should not interfere with the individual's freedom of choice in this regard. This view disregards the fact that, while all are potential victims, the greater statistical risk of becoming a victim of violent crime increases as socio-economic status decreases. Those most likely to need the insurance are those least likely to be able to afford it. The President's Crime Commission conducted a study which revealed that "the risk of victimization is highest among the lower income groups for all offenses except homicide, larceny and vehicle theft; it weighs most heavily on the non-white, for all Index offenses except larceny

Two incidental benefits of a government compensation plan should not be ignored. An observer of the New Zealand experiment commented that one of the significant advantages of the operation of the program was "the psychological effect on the community produced by the very fact that there is such a scheme in existence." 10 The other benefit is that the program would provide an incentive for full disclosure of occurrences of violence.11

I believe that victims of criminal acts are in a sufficiently distinct class to justify governmental action to provide them relief; society has arguably assumed a special duty to protect against crime, society's interest in prosecution substantially defeats any possibility of recovery in a civil action, and the theoretical civil remedy is essentially illusory in practice.

On the other hand, the typical tort case involves a claim for damages resulting from harm arising out of events unintentionally caused. Drivers of automobiles, makers and other purveyors of products, and entrepreneurs of various kinds are the typical defendants. Such defendants are either self-insurers or carry liability insurance. While torts arising out of noncriminal conduct committed without intention to cause harm do occasionally involve defendants against whom judgments are worthless, and the plaintiff is thereby left with no effective remedy, these are relatively rare situations.

3 Linden, Victims of Crime and Tort Law, 12 Can. B.J. 17, 19-22 (1969).

Childres, Compensation for Criminally Inflicted Personal Injury, 39 N.Y.U. L. Rev. 444, 456 (1964).

5 Goldberg, supra n. 2, at 294, n. 95.

Bureau Draft, a State Statute to Provide Compensation for Innocent Victims of Violent Crimes, 4 Harv. J. Legis. 127, 128 (1966) [hereinafter cited as Model Act].

Childres, supra n. 4, at 457; Wolfgang. Victim Compensation in Crimes of Personal Violence, 50 Minn. L. Rev. 223, 233 (1965); Model Act 129.

8 Mueller, Compensation for Victims of Crime: Thought Before Action, 50 Minn. L. Rev. 213, 216-18 (1965); Starrs, a Modest Proposal to Insure Justice for Victims of Crime, 50 Minn. L. Rev. 285 (1965).

"Of course, some persons ill, by their own default or for good cause, reject these advantages [of private insurance]. But that is no reason for haste in governmental intervention, for the American tradition of free choice for all people, rich and poor, has been a source of national pride."

Id. at 309-10.

"President's Comm'n on Law Enforcement and Administration of Justice, Task Force Report: Crime and Its Impact-An Assessment 81 (1967).

10 Cameron, Compensation for Victims of Crime: the New Zealand Experiment, 12 J. Pub. L. 367, 375 (1963).

11 Model Act 130.

The concept of compensating victims of crime is not a novel one, although until very recently it has not received much attention in Anglo-American jurisprudence. Some have traced the notion to the Code of Hammurabi, the ancient Vikings and Alfred the Great.12 Others have found references to compensating victims in the Bible and the Iliad.13

In the Anglo-Saxon legal system, before harms were categorized as criminal and civil, an elaborate system of compensation evolved to replace the blood-feud. Gradually, as society began to take charge of punishment, wrongs came to be regarded as injuries to the state, and the king took a share of the payment for operating the legal system. About the twelfth century the victim's share decreased and the king's portion became the whole, and was a principal source of revenue. This heritage of Anglo-Saxon law remains with us today, and fines collected in criminal cases are paid to the state, rather than to the victim. While restitution is sometimes made a condition of probation, in the more serious cases of crime where the offender is imprisoned, even this possibility is foreclosed.

14

It is interesting to note that in the District of Columbia, there is a provision authorizing fines to be used for the relief of animal victims of harm, but human beings are specifically excluded. In Chapter 8, of Title 22, Cruelty to Animals, the section on disposition of fines provides :

"SEC. 22-806. [F]ines and forfeitures collected upon or resulting from the complaint or information of any member of the Washington Humane Society shall inure and be paid over to said association, in aid of the benevolent objects for which it was incorporated."

1599

sentient creatures (human beings excepted). . . Thus, at least the basic concept of compensation to victims of crimes is not entirely foreign to the District, and I suggest that the extension of the concept to human beings would be a humane move.

17

16

The modern movement for compensating victims of crime was begun by the late Margery Fry of England. She focused attention upon the inadequacies of the existing remedies available, to victims of crimes. The first jurisdiction to respond to the movement was New Zealand, where a compensation program was enacted in 1963. Great Britain followed in 1964.18 California broke the ground in the United States in 1965.10 New York enacted a compensation plan in 1966, Hawaii and Massachusetts in 1967, and Maryland in 1968.22 Similarities and differences of the several plans will be discussed in the context of the plan proposed by Senate Bill 2936.

20

The compensation plan proposed by Senate Bill 2936 is basically a sound one, and wisely avoids some of the rigidity embodied in other programs. All jurisdictions except Massachusetts have provided that the program be administered by an agency. Massachusetts places the burden on their trial courts. An administrative body offers the advantages of accessibility, simplicity, and speed.23 Senate Bill 2936 establishes a Commission within a flexible framework to achieve these desirable goals.24

Like the other plans, the proposal is limited to compensation for loss resulting from injury or death, and does not attempt to reach property loss. This approach

12 Kutner, Crime-Torts: Due Process of Compensation for Crime Victims, 41 Notre Dame Law. 487 (1966); Note, Compensation for Victims of Crimes of Violence, 30 Albany L. Rev. 325 (1966). 13 Wolfgang, Victim Compensation in Crimes of Personal Violence, 50 Minn. L. Rev. 223, 224-25 (1965).

14 Id. at 225-28.

15 D.C. Code Ann. SS 22-906, -813 (1967).

16 Fry, Justice for Victims, 8 J. Pub. L. 191 (1959).

17 Public Act No. 134, 1963 (N.Z.). See Cameron, Compensation for Victims of Crime: the New Zealand Experiment, 12 J. Pub. L. 367 (1963).

18 Home Office, Compensation for Victims of Crimes of Violence, Cmnd. No. 2323 (1964): See 78 Harv. L. Rev. 1683 (1965).

19 The first California plan was enacted in 1965, Cal. Stat. ch. 1549, which appeared as Cal. Welfare and Institutions Code § 11211. This act was repealed in 1967, and a new one enacted: Cal. Gov't Code §§ 13960-66. See Geis, Prospectus for research on victim-compensation in California. 2 Cal. W.L. Rev. 85 (1966) 18 Stan. L. Rev. 266 (1965).

20 N.Y. Exec. Law §§ 620-635; See 31 Albany L. Rev. 120 (1967).

21 Hawaii Rev. Stat. §§ 351-1, -70 (1968); Mass. Gen. Laws Ann. ch. 258A (Supp. 1969): See Floyd, Massachusetts' Plan To Aid Victims of Crime, 48 B.U. L. Rev. 360 (1968).

22 Md. Ann. Code art. 26A (Supp. 1969).

23 Yarborough, S. 2155 of the Eighty-Ninth Congress-the Criminal Injuries Compensation Act, 50 Minn. L. Rev. 255, 257 (1965).

24 S. 2936, §§ 201-208.