particularly in which the mate then was shot to death, and I think the commission should have the discretion to determine whether that is a deserving case or whether, in fact, it is not.

I would also add that I think the use of a generic definition of the kinds of crime which the commission might be concerned with could solve some of the unexpected kinds of problems that occur when you try to categorize and delimit the possible kinds of acts which will come under the bill.

Two or three other things that I do not have in the statement, I would also like to call to your attention. In section D or section (d) of 301, the comment is made that any circumstance that the commission deems relevant may be taken into account, and, then, of course, there is implied spelling out such circumstances.

What bothers me is that this is almost a repetition of the wording which appears in the Hawaiian measure and the Hawaiian Board has chosen to interpret these words to mean the fiscal state of the applicant so that the Hawaiian measure, at least in its early operation, be generated into precisely the same kind of welfare program that California has operated.

The CHAIRMAN. Do you mean it only provides compensation if you are poor?

Mr. GEIS. Exactly. If you are very poor, excruciatingly poor, and I think the committee ought to at least consider that.

In California, you only get compensation if you could get welfare. In subsection (f) of section 301, there seems to me to be rather strong language. "The Commission shall suspend hearings."

I would recommend that that be changed to "may suspend." It seems to me that there could again be cases in which individuals. might make prima facie cases of deserved compensation and the proceedings could be suspended almost indefinitely for a variey of reasons, particularly when your burden of proof-which, incidentally one could argue is very high, substantial in subsection (e) of 301.

I would also like to make mention that the question of injury from riots and civil disorders often a very pressing question, is one that perhaps ought to be specifically given attention in the bill. I do not have any ongoing recommendation, but I do think the issue, perhaps, ought to be entertained.

Earlier, before the hearing, in a discussion with some persons attending, it was mentioned that perhaps the requirement of notification of the police be incorporated into the measure, possibly of the event, and that these records then be part of the records by which the determination may be made. Perhaps, I think, there is something to be said for that.

The CHAIRMAN. It would also be of great help for the police in their accumulation of proper records.

Mr. GEIS. Proper records, very much so.

Professor Morris has pointed to a point that all of the existing programs called to our attention, particularly New York and England. That is the difficulty of making people aware of their rights under a measure such as this.

Again, I would recommend to the committee that perhaps it might be incorporated within the bill specifically that some agency, perhaps the police, perhaps the prosecuting arm, be required by law to notify victims, or in other ways to make known, the operation of this

particular program to persons who potentially might be qualified to recover under it. England estimates that even at this late date some half of the persons who might get money from the program simply are not aware of it.

These recommendations, I would also like to add for the record, come out of a discussion with my colleague, Mr. Duncan Chapel, who is from Australia and is visiting the United States, and reflect, in a sense, an experience that he has been exposed to in Australia.

Lastly and an idiosyncrasy of my own, I really very much would like to stress that I really think measures such as this and all other novel and pioneering measures which the Congress considers, ought to have attached to them a research investigation by an extramural agency. It is one thing to ask the commission, in a reasonable request, certainly, that it report on its operation in a sophisticated accounting kind of method, but I think the Congress and the relevant committees of the Congress could learn a tremendous amount if each of these bills were also accompanied by an extramural research investigation which would respond to the kinds of questions that always plague congressional committees when they are faced with continuing, changing, or otherwise expanding operating programs.

I would like to know, for example, how people in the District would respond to it; if enacted, what, in fact, is accomplished by it, and a wide variety of other kind of questions which no agency can really accomplish within its own work, where reasonably good research operations can, in fact, acquire the information rather cheaply and rather readily.

Thank you, sir.

The CHAIRMAN. On that last suggestion, do you mean you would write into the law that the law-enforcement assistance administrator in the Department of Justice shall report biannually to

Mr. GEIS. I think that might be certainly one way of doing it, or that the appropriation for this measure shall include a number of dollars which shall, under the auspices of the law-enforcement officer be subcontracted to an agency to do research on this and that that research be reported back to this particular committee after the expiration of a certain amount of time.

I think committees are constantly faced with the difficulty of ascertaining impartially and independently what has been accomplished by what they have done. This, perhaps, might be one way of doing that.

The CHAIRMAN. Fine.

Thank you very much, Professor Geis, for your very helpful contribution to today's testimony.

We have a number of documents which we will place in the appendix of the record.

A prepared statement of Hon. Arthur J. Goldberg, attorney, New York City; Prof. Stephen Schafer, doctor of jurisprudence, professor of sociology and criminology, Northeastern University at Boston Mass.; report of the Commission on Compensation of Victims of Crime and Violence in the State of Illinois, 74th General Assembly. (The documents referred to appear in the appendix.)

The CHAIRMAN. The hearing will now stand recessed, subject to the call of the Chair.

(Whereupon, at 11:55 a.m., the hearing was recessed, subject to the call of the Chair.)

APPENDIX

PAUL, WEISS, GOLDBERG, RIFKIND, WHARTON & GARRISON,
New York, N.Y., December 12, 1969.

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