Original document at http://www.nvc.org/docs/INFOLINK/INFO59.HTM
State Compensation Laws
Simply stated, victim compensation is defined as money paid through a public fund to allow innocent victims to recoup some of the otherwise unreimbursed expenses incurred as a direct result of a violent crime perpetrated against them. While no amount of money can eliminate the trauma and grief suffered by crime victims, financial assistance can be crucial in helping victims through the recovery process. For some victims, these funds can help preserve the stability and dignity of their lives. The concept of compensation is not a new one. Ancient archives indicate that a form of compensation was available in the Babylonian civilization before 2380 B.C. (Gordon, 1960). Compensation in the modern era was first ushered into this country by California Superior Court Justice Francis McCarty in 1965 (Stark & Goldstein, 1985). Many of the nation's earliest victim compensation programs were established independently by governmental entities without the benefit of legislative mandate.
Today, all 50 states, the District of Columbia, Guam and the Virgin Islands have established compensation programs by specific statute, with Maine being the last state to do so in 1992. There is no federal compensation program, but federal funds supplement the states' funds; therefore, victims of federal crimes are fully eligible in the states where the crimes occur. A number of other countries operate crime victim compensation programs, including Australia, Canada, Germany, Great Britain, Japan and New Zealand. While laws governing compensation vary widely from state to state, some generalizations can be made about such statutes. (All statutes discussed in this summary are current through 1992 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)
Source of Compensation Funds
In most states, compensation programs are funded by a combination of both state and federal sources. Some states fund their programs directly from general revenues. In two-thirds of the states, no tax dollars are involved all the money for compensation to victims comes from convicted offenders themselves in the form of special fines, assessments or penalties (Eddy, 1994). Others are supported in part by money earned by offenders engaged in prison industry or work-release programs. At least six states authorize the deposit of any unclaimed restitution payments in the state's compensation fund. (These six states include: NV, OR, RI, TX, WA, and WY.) Rhode Island takes this concept one step further by designating any interest generated on collected restitution for placement in the fund. In addition, the federal Crime Victims Fund authorized by the Victims of Crime Act of 1984, and financed entirely from federal criminal fines and fees provides supplemental grant funds to each state.
As a general matter, only those victims who are directly harmed as the result of a violent crime generally referred to as "direct" or "primary" victims are eligible for compensation. However, most states have broadened the class of those eligible to make claims to include "secondary" or "derivative" victims, usually defined as:
|Dependent family members of primary victims who are murdered or incapacitated; |
|Estates of murdered victims; |
|Good Samaritans; and |
|Those third parties who have provided victims with funds and services that would otherwise be covered by compensation. |
While most statutes do require that the victim be physically harmed, there are some exceptions such as allowing compensation for psychological counseling and treatment for children who have witnessed a violent crime. In addition, as long as the victim reports the crime to the police, cooperates with law enforcement and prosecutors, did not in any way contribute to the crime (i.e., did not provoke the fight or incident, etc.) and applies for compensation within the time limitations imposed for filing, the victim is eligible for compensation whether or not the offender is caught or convicted of the crime. Most states, however, place other limitations on eligibility depending upon the specific surrounding circumstances. Victims who were involved in the commission of a crime at the time they were victimized (i.e., a shoot-out over a drug deal in which they were involved) are generally barred from receiving any compensation. Similarly, many states allow administering agencies the power to refuse the claims of prisoners and other offenders with long criminal records. In keeping with this principle of denying offenders the benefits of such funds, many states in the past refused to pay the claims of domestic violence victims still living with their abusers. This was due to their fear that domestic violence offenders would be "unjustly enriched" or rewarded for their wrongdoing.
Concerned that this could result in an injustice against domestic violence victims in desperate need of such assistance, the Federal government instituted requirements that prohibited states which received federal grant assistance through the Crime Victims Fund (VOCA) from automatically denying all claims made by domestic violence victims. Similar guidelines require recipient states to accept claims from individuals victimized in areas within the state which are under federal or military jurisdiction, as well as from out-of-state residents and drunk driving victims. Almost all states have complied with these guidelines; however, Nevada is the only state which does not accept applications from nonresident victims. In addition, most states require victims to cooperate with law enforcement officials and prosecutors during the investigation and prosecution of the case.
Some states require victims to show that they are "financially needy" before their claims will be considered. While victims are eligible for benefits under state compensation programs, it must be noted that state compensation programs are "payors of last resort," meaning that they cannot offer benefits for expenses covered by "collateral resources," such as medical and auto insurance, employee benefits, other public assistance programs and restitution (National Association of Crime Victim Compensation Boards, 1995). For example, if the crime occurred while the victim was on the job, workers' compensation would be primarily responsible for all compensation to the victim, to dependant family members of the victim or to third party service providers.
In all cases, victims must establish their actual losses by presenting evidence of their losses, which can include such evidence as:
|Police reports and investigative files; |
|Medical or funeral bills; |
|Employer's reports (for lost wages); |
|Prosecutor's reports (which verifies the victim's cooperation with the criminal justice system, as well as the victim's injuries and financial losses); |
|Pre-sentence reports (which verifies the victim's financial losses for restitution purposes); and |
|Insurance reports. |
The nature and extent of compensable losses covered by the various state compensation statutes differ dramatically. However, virtually all states cover the costs of:
|Medical treatment and physical therapy: |
|Psychological/mental health counseling and treatment; |
|Lost wages; |
|Funeral expenses; and |
|Loss of support to dependents of homicide victims. |
Some states allow claims for other expenses not covered by other states. For instance, some states allow claims for loss of the victim's services to family members or dependents, such as babysitting and household maintenance. Other states allow claims for expenses such as crime-scene clean-up, job rehabilitation, modification of homes or vehicles for paralyzed victims, and other victimization-related claims. With very few exceptions, state compensation programs do not cover the cost of lost property, pain and suffering, or future income due to permanent incapacitation. An important exception to the property loss exemption are "essential" items lost by elderly crime victims, such as eye glasses, dentures, hearing aids, medical equipment and, in some cases of homebound victims, television sets or radios.
Regardless of the kinds of losses covered, every state imposes limitations for maximum awards allowable not only for each victim, but also maximum awards for specific categories of losses (i.e., medical, funeral, wages, etc.). The average maximum dollar amount per victim nationwide generally ranges between $10,000 and $25,000 although a few states have higher or lower maximums. In addition, many states have lower limits on specific expenses, such as funerals and mental health counseling. Limitations for specific categories differ in almost all states. Nationwide, the average amount paid to each victim applying for compensation is about $2,000 and about $250 million is being paid to more than 100,000 victims each year (National Association of Crime Victim Compensation Boards, 1995).
Some state statutes also impose a minimum loss requirement (usually $100), while others have established a deductible of $100 or more before the fund will begin to compensate a victim. Again, special exceptions to both of these limitations have been made in many states for elderly victims on fixed incomes.
Application and Review Process
Forms to apply for compensation are available from the agency administering the state's compensation program often the victim compensation board; state department of safety/criminal justice; the state Attorney General's office; or, in some states, through local governments. Many law enforcement departments and victim service agencies readily supply forms and will often assist victims in filling out and filing applications. Most compensation programs have time limitations within which a claim must be filed, usually within one or two years from the date on which the crime was committed. Some states will extend the filing period, if good cause can be shown for the failure to file the claim in a timely manner. Soon after a victim files an application for compensation benefits, compensation program staff will analyze the information provided, seek verification of the information, and request any further information needed. Once the program has sufficient information to determine the victim's eligibility and the types of expenses for which the program can make a payment, the program will notify the victim of its decision (normally in the form of a letter).
If victim compensation benefits are denied or less than the victim expected to receive, the victim may appeal the decision. Many state programs handle the initial appeal informally if the victim can provide further information that could affect the decision. Formal hearings, as well as appeals into the state court system, are also usually a part of each state's compensation appeal process. Depending on the state compensation program's workload and staff resources many compensation programs are understaffed for the volume of claims received and have a longer backlog due to case overload the victim may be notified of the program's decision in as short a time as one month to several months to even longer periods of time (Eddy, 1994). Additionally, if compensation applications are not complete and requested information is not received in a timely manner, eligibility and payment decisions will be delayed.
One of the greatest drawbacks to compensation programs has been the possible time lag between the point when a claim is filed and actual payment to the victims. For many victims who are already financially strapped, such delays in receiving compensation can not only spell economic disaster, but are substantially a re-victimization. In some cases, victims may be denied essential services and/or treatment due to their inability to pay. In response to such cases, many states (but not all) have established "emergency award" programs designed to provide critical financial assistance to crime victims when the emergency criteria are met by a case's circumstances. In some situations, a program can make an emergency award to a victim within a few days or weeks, but such awards are usually limited to cases where the victim is unable to pay for food, shelter or medicine without immediate help (Eddy, 1994). Emergency awards are usually limited to $500 or less.
Many victim compensation programs have experienced a remarkable increase in applications in recent years. Extensive outreach efforts, along with the growth in other victim services and new laws mandating that services and information be provided to victims, have resulted in more and more victims applying for help (National Association of Crime Victim Compensation Boards, 1995). This growth in claims shows that more victims are receiving the financial help they need. Compensation programs everywhere are working hard to process claims promptly, while at the same time seeking necessary legislative changes to boost revenue and control costs. Programs are also working harder to recover from offenders the payments that the programs made to those offenders' victims, by aggressively enforcing restitution and subrogation rights (Eddy, 1994). The nation's compensation programs are a crucial factor in helping crime victims recover from the trauma and economic burden of criminal victimization.
Eddy, Dan. (1994). "Crime Victim Compensation: A Guide for Prosecutors' Offices." In National Center for Victims of Crime, Focus on the Future: A Systems Approach to Prosecution and Victim Assistance A Training and Resource Manual.
Gordon, Cyrus. (1960). Hammurabi's Code: Quaint or Forward Look. New York.
National Association of Crime Victim Compensation Boards. (1995). Crime Victim Compensation Program Directory. Alexandria, VA.
Stark, James and Howard Goldstein. (1985). The Rights of Crime Victims. New York: Bantam Books.
Bard, Morton and Dawn Sangrey. (1986). The Crime Victim's Book. (2nd ed.). Secaucus, NJ: Citadel Press.
Brown, Charles. (1993). First Get Mad, Then Get Justice: The Handbook for Crime Victims. Secaucus, NJ: Carol Publishing Group.
Carrow, Deborah. (1980). Crime Victim Compensation: Program Model. Washington, DC: National Institute of Justice, U.S. Department of Justice.
Duff, Peter. (1987). "Criminal Injuries, Compensation and `Violent Crime'." 22 Crim. L.R. 219.
Forer, Lois. (1980). Criminals and Victims: A Trial Judge Reflects on Crime and Punishment. New York: Norton.
Muellar, G. (1965). "Compensation for Victims of Crime: Thought and After Action." 50 Minn. L.R. 220.
Parent, Dale, Barbara Auerbach, and Kenneth Carlson. (1992). Compensating Crime Victims: A Summary of Policies and Practices. Washington, DC: National Institute of Justice, U.S. Department of Justice.
For additional information, please contact:
National Association of Crime Victim Compensation Boards
P.O. Box 16003
Alexandria, VA 22302
(703) 370 - 2996
Office for Victims of Crime
State Compensation and Assistance Division
U.S. Department of Justice
633 Indiana Avenue, NW
Washington, DC 20004
(202) 616 - 2145
INFOLINK ©: A Program of the National Center for Victims of Crime.
All rights reserved.
Copyright © 1996 by the National Center for Victims of Crime. This information may be freely distributed, provided that it is distributed in its entirety and includes this copyright notice.