fortuitous deprivations. Nor, despite its rhetorical appeal, should the argument that there is some injustice in the expenditure of public funds for the benefit of "bad persons" to the neglect of “good people" be allowed to pass. Governmental expenditures on the rehabilitation of criminals and on the compensation of their victims need independent justification as quite separate and different ways in which to use public funds.

A sounder approach is to recognize that crime is endemic in our society and that it is only proper for a society so organized that crime is endemic to share the burden which is by chance imposed on particular, unfortunate individuals. The analogies with workmen's compensation and with compulsory third-party motor vehicle insurance are of some relevance; perhaps a closer analogue is the extensive medical and social welfare provisions of the Veterans Administration legislation by which the community shares in the loss to the individual who has suffered for us from the external aggression of war. We should likewise share the loss to those who suffer for us from the internal aggression of crimes of personal violence.

It is also important, and relevant to the rationale of such legislation, that it should cover those injured in coming to the aid of a potential victim of a crime or assisting the police in the prevention of crime or making an arrest. Some have suggested that at least one factor in the reluctance of citizens to come to the aid of victims of crime or of the police is the realization that in the event of their being injured, disabled, or killed, neither they nor their dependents will receive financial assistance or compensation for their loss. The case of Kitty Genovese in New York in which thirty-eight people watched or listened for an extended period while a young woman was being repeatedly knifed immediately outside their apartment building was the occasion of a great deal of pious breast-beating, moralizing, and sermonizing about the callousness of contemporary society. There has never been a shortage either of such sermons or of callousness. What is required is that this practical legislative step be taken to ensure that those who do not hurry by on the other side of the road past the Kitty Genoveses and other victims of crimes, but render active assistance, are not alone made to bear a burden which is essentially a community responsibility.

It is clear that provisions for the reduction or elimination of compensation in the case of victims who have precipitated their own loss are necessary, as are safeguards against fraudulent claims. All present compensation schemes, including S. 2936, incorporate such mechanisms. But there is one difficult question, centrally relevant to the rationale of such legislation, on which S. 2936 is in my view in error, though it follows the pattern of such legislation elsewhere. Should compensation be paid not only in respect of physical injury and its economic consequences but also for the "pain and suffering" (Sec. 303(d)) attendant upon the injury? My position is that this head of compensation should not be included. We cannot bear the knife for the victim nor endure his pain; the limit of our collective responsibility should be the removal of the sharper pains of financial suffering from his physical suffering. And from his dependents. Let me take an example: Should there be compensation for "pain and suffering" in a rape case? Many of the present schemes include such compensation and some of the legislative debates make much of the woman's suffering and the appropriateness of financial recompense. One can agree with the suffering and yet properly raise the question whether compensation should be paid. If, of course, in the course of the rape she has suffered physical injury that requires hospitalization, obviously there should be compensation for these losses. It is also possible that she has physical or psychological trauma which will reduce her earning capacity in the future and these too would be compensable. Also, if she is married, there may be extra costs in the family for housekeeping and child care while she is receiving medical attention and these too should be reimbursed. But for the misery, pain, and degradation of the rape, I take the rather hard line that no compensation should be paid. Otherwise, we move into areas of assessment of suffering in which money is not a possible balance and in which any payment we make can only be of the heart balm or symbolic nature. When we move into that area we exaggerate the proper role of compensation schemes.

In sum, from consolidated revenues. we should ensure that those victims of crimes of violence who have not been the precipitants of their own suffering do not suffer financially as a result of the crime. If such schemes work without political criticism from either side and to the general satisfaction of the citizens

of such relatively poor countries as New Zealand and the United Kingdom, arguments of impecuniosity should not preclude their adoption in this country.

(B) COMMENTS ON S. 2936

These critical comments are presented as brief, and consequently dogmatic, propositions. I hope members of the Committee will ask me to defend those points with which they disagree, ignoring those of agreement or unimportance. I do energetically request that this shopping-list of quibbles with S. 2936 will not give the impression of opposition to that Bill and to victim compensation legislation. It is important that the District should provide leadership to the country in this respect; none of the existing State schemes is sufficient or satisfactory; there is an important opportunity to serve the District and to lead the country.

(a) S. 303 (d)—page 13 line 17

There should be no compensation for pain and suffering. See rationale above. Also, its inclusion greatly complicates assessment of the quantum of compensation and tends to complexity in the administration of the system. Available funds should be more widely distributed to meet actual out-of-pocket expenses of as many victims as possible rather than less widely distributed and covering pain and suffering.

(b) De Minimis and the Maximum Award

Just as Sec. 304 (c)-page 14 lines 6 to 10-provides an upper limit for compensation, so it is wise to provide a lower limit, say $50, as a deductible or a threshold figure. The argument for such a provision turns on efficiency of the administration of the scheme and on an effort to isolate those losses, between upper and lower limits, which should be given priority of attention. I would favor a $50 threshold.

I would suggest a $10,000, rather than a $25,000, maximum payment.

(c) Sec. 305 (b)—page 14 lines 16 to 25

This section properly deducts government benefits accruing as a result of the injury or death of the victim. It leaves open the question of workmen's compensation payments; I think they too should be deducted. By implication private insurance awards are not deductible, and with this I agree, insofar as life insurance is concerned. The question of medical and hospital insurance payments raise difficult issues the Committee may care to discuss; my view is that they too should be deducted.

(d) Emergency Payments

I would give to the Commission power to order a temporary payment or payments to be made pending its determination of total compensation due. Occasionally, this will be a useful power in situations of crisis need.

(e) Simplified Machinery

As I read S. 2936, it requires a hearing on every case by the Commission. I think this a serious error. I would recommend a machinery which would (as has happened in New Zealand and England) dispose of the vast majority of cases informally, without a hearing. A single member of the Commission should be empowered, on the documents, to recommend an award to the Chairman and to the applicant. In case of disagreement between the member and the chairman, or in case of a request by the applicant, a formal hearing would follow, but not otherwise. A hearing would also follow if an applicant whose claim was rejected by the single member requested a hearing.

(f) Sec. 206-pages 8 and 9

I regard this attack on lawyer's fees as unwise. I doubt that there are many lawyer's excessive pickings available here. I would prefer to attack the problem by providing simple forms for claimants in all public hospitals and police stations, directing the Commission to pursue such efforts to advise victims of their rights under the Bill, directing them to help with the preparation of documents, providing for swift and informal disposition of claims. The present section seems to me likely to be attacked as a matter of principle and may be a needless

impediment to the Bill's passage. And sometimes the Commission will need attorney's assistance, and it should be paid for. I would suggest that the Bill provide that no fee may be charged for assisting an applicant to prepare or present his application to the Commission, but that attorney's fees determined as reasonable by the Commission, may be charged where a hearing is conducted on the application. See (e) above.

(g) Cost of this compensation system

In drafting similar legislation for Illinois (it passed the relevant committees of both Houses but was torpedoed in the Appropriations Committee; we have hopes for next session) we prepared an estimate of costs for the first year's operation. It came to $250,000 for the cost of administering the Act and $1,750,000 for compensation payments. I suggest that similar cost projections be made for the District of Columbia; perhaps the National Institute of Law Enforcement and Criminal Justice would undertake to do this for the Committee.

Mr. MORRIS. I would appreciate that, sir.

If I may add this, if it is appropriate, at least as you have suggested to one question, that the committee staff would be looking at some of the details of this bill, I would be very happy to come to be of what use I could on that. I do not know if it is appropriate, but I would be happy to do it.

The CHAIRMAN. It is always appropriate.

Mr. MORRIS. Gilbert Geis says I may say the same for him, too. The pain and suffering point, sir; on page 4 of the submission I made has already been dealt with.

There is little enough I could add to that.

I would also wish to accept most of the points that are not on that page that Dean Keeton referred to.

Perhaps, a comment on the de minimis and the maximum award might be appropriate. I think it should be a threshold and not a deductible.

The CHAIRMAN. To keep out really frivolous claims?

Mr. MORRIS. If one assumes 1 day's hospitalization exceeds $50, which it does, it seems to me that makes a reasonably efficient cut line. It may work a hardship. If this bill becomes an act, it cannot eliminate all hardships but it can, I think, if administrated efficiently we are justified in making a de minimis clause, be made to make the system work for those who have reasonable substantial need. Below that, it seems to me it really is a welfare problem.

Now, at the upper limit: Again, somewhat arbitrarily selecting, I would be all in favor of getting a scheme moving that could work cheaply, reasonably efficient, handle the sharper pains of financial suffering, and would therefore be in favor of a $10,000 maximum, seeking to spread the capacity of whatever moneys are made available to diminish your financial suffering.

I admit that is very abritrary, sir.

The next point I make is a very technical issue you may, or may not want to raise, the question of deduction.

Over on the next page, the emergency payments issue has already been made by several witnesses.

I think the idea of an increment payment is essential. It is more than a good idea. It is an essential part of a decent scheme, particularly when you correlate it with the provisions in the bill, S. 2936, for the deferment of hearings pending the disposition of civil or criminal cases. The way our courts are burdened, that might be a protracted deferment.

I would like to make a comment about the machinery of the bill. I am not sure under this bill what discretion would be available to act on the documents, but under the English scheme, I believe judging from the fifth annual report, it has proved possible to dispose of 92 percent of all applications under the English act without a hearing at all. That is to say, on the police and hospital documents.

It would seem to me obviously desirable to do that, if one can do it without encouraging fraud or other maladministration of the system, and I believe it can be done.

If it is to be done that way, I would have thought it would be wise to give the power in the bill for a single member of the Commission to make an offer to a claimant on the documents, which might be accepted, and they may have a hearing in the event of it being rejected or the Chairman of the Commission requiring a hearing.

I think this links with the attack on lawyers' fees in the bill. This does not seem to me an area where there are ripe legal pickings to be gained. There could not be a lot of ambulance chasing that can be achieved here if one excludes pain and suffering as sort of an upper limit.

I would have thought that linked very closely with the question of the machinery and a desirable position for such legislation is that there should not be lawyers' fees for assisting with documents, that we should try to dispose of the matter on the documents.

But then for the hearing, I do not see why this hearing should be singled out for any different treatment from any other administrative board.

The final point, sir; Abner Mikva was kind enough to refer to my work on the Illinois Legislature, but rather undermined the kindness by saying I could give rather hard figures about cost.

I cannot at all.

We did make serious attempts to make an estimate of cost and the estimate we came to is close but not precisely what I set out at the bottom of page 5. The document, I estimate, I could make available to your committee if it will be of any assistance.

The CHAIRMAN. It would be. We would like to have it. (The document referred to follows:)

ESTIMATED COST OF CRIME VICTIM REIMBURSEMENT UNDER PROPOSED ACT

[Prepared for the Illinois Legislative Council]

Analysis of available statistical information on violent crimes, supplemented by assumptions where necessary, indicates that the total potential expense of a proposed Illinois program of reimbursing victims of certain crimes of violence is likely to range between $2.265,000 and $2,653,000 annually, if all eligible vietims claim and are paid the full amount for which they qualify.

The experience of other jurisdictions with similar legislation indicates, however, that many eligible claimants will not pursue their claims, at least in the early years of the plan. If that experience is duplicated under the proposed Illinois legislation, costs might be reduced by 50 percent or more, necessitating an annual expenditure of $1,000,000 or less under the bill. Details follow.

PROVISIONS AFFECTING ESTIMATED TOTAL EXPENDITURES

The final draft of the proposed Crime Victims Compensation Act contains the following provisions directly affecting total State expenditures under the act: Compensation may be paid to the victim or his dependents only for medical expenses, loss of earnings, loss of future earnings, and funeral expenses.

Compensation may be paid for injuries or death resulting from homicide, assault, battery, rape, kidnapping, and arson.

Compensation may not be paid if the victim and assailant were of the same household.

Compensation may be reduced or denied where the victim's wrongful conduct contributed to the attack.

Compensation may not be paid where the pecuniary loss is under $100.
Compensation is limited to $10,000 per case.

Compensation may be reduced by the amount of other governmental payments to which the victim is entitled as a result of the crime.

Compensation may not be reduced to reflect payments resulting from private

insurance.

Compensation may not be paid unless the victim notifies the police promptly and cooperates fully with law enforcement personel.

NUMBER OF VICTIMS ELIGIBLE FOR COMPENSATION

It is estimated that the potential annual cost of reimbursing Illinois victims of violent crimes under the proposed bill would amount to $2,265,100 to $2,643,600 as shwn in Table 1. It is anticipated that the actual cost would be much lower, perhaps $1,000,000 annually, for the first few years of such a program.

The table shows the number of crimes known to the Illinois police. The estimated number of victims who, for various enumerated reasons, would be ineligible for compensation is deducted from the "raw" totals of known crimes.

The remainder of this memorandum explains the basis for the data presented in Table 1.

Homicide

Information contained in the 1966 edition of the Federal Bureau of Investigation publication, "Crime in the United States", (usually referred to as the "Uniform Crime Reports") indicates that 31 percent of homicides in the United States are committed by persons related to the victim. Another 21 percent arose from romantic problems. If it is assumed that all the intrafamily victims shared the living quarters of the killer, and that almost half the "romance killings" involved couples sharing the same household, then approximately 40 percent of homicide victims would have been ineligible under the bill. (Percentage figures used above are translated into numerical totals under "Deductions" in Table 1.)

The next area of exclusion is the case where the victim provoked or contributed to his own killing. While no information with regard to Illinois crimes is available on this point, a study of murders in Philadelphia indicated that approximately 25 percent of the homicides studied were precipitated by the actions of the victim.*

In case of homicide under the proposed act, the age of the victim is relevant in determining his loss of potential earnings and in deciding whether he is likely to have dependents eligible for compensation. It was decided to exclude victims younger than 15 or older than 65 because of their probable lack of dependents or significant potential earnings. The Uniform Crime Reports show that 11 percent of homicide victims for 1965 fell into these age groups.

TABLE 1.-ESTIMATED ANNUAL COST OF REIMBURSING ILLINOIS VICTIMS OF VIOLENT CRIMES UNDER PROPOSED LEGISLATION

Note-Grand total $2,265,100 to $2,653,600, including estimated expenses of $125,000 annually for administrativ e expenses.

Sources: Compiled from Federal Bureau of Investigation, "Crime in the United States," (1966); and other sources.

Study reported in 33 U. Chi. L. Rev. 548 (Spring, 1966).