Contrary to doubts of some, crime victim compensation programs are a necessary element of the criminal justice system. Victim compensation programs are not only essential to a fair society but also express what it means to live in a civilized society. In addition, they have become so common as to become a custom that must be followed.
It is a natural fact of modern life that for most crimes, the victim is the weakest party. The victim’s weakness remains throughout the criminal justice process. Indeed, a victim must rely on: the police to find and arrest the perpetrator of a crime, the prosecutor to convict the defendant; and the court to impose an appropriate punishment on the offender. Over the past 30 years, however, victims of crimes have increasingly demanded an increased focus on their wants and desires as opposed to those wants of the community or even the offender (Young & Stein, 2004). One way that this increased focus on the victim has been realized is through state administered victim compensation programs. These programs offer to provide monetary and financial relief to victims for the cost and expenses that they suffered as a result of a crime. It is important to note, however, the crime victim compensation programs are only administered by the state. In other words, the funds for the programs are obtained by fines, fees, penalties and forfeitures imposed on or paid out by criminal offenders. In other words, the programs are funded by all offenders rather than the victims or the general public. Interestingly, despite the seeming reasonableness of victim’s compensation programs, they remain somewhat controversial in terms whether or not they are necessary or needed. Such controversy is misplaced as victim compensation programs necessary.
First, in a criminal justice system that purports to be fair and equitable, failure to provide some level of compensation would be unethical, one-sided, and unjust (Schmutz, 1971). To understand the level of injustice that would exist without victim compensation programs, one must first consider the benefits that the accused and offender receive in the modern criminal justice system. In every criminal case, a suspect, upon arrest, and without further proof of guilty, is provided an attorney free of charge. If a charge is later filed against the defendant, access to an attorney is provided until the end of the case including the first appeal. Moreover, the attorney that is provided must be competent enough to succeed in defending the case. This generally means that the attorney must have access to the funds and resources to properly conduct an effective defense. In addition, the attorney’s salary must be reasonable enough that he feels it is worth his while to put the work in necessary to conduct an effective defense. All these costs are provided for by the state in the name of justice and the defendant’s fundamental fairness. In addition to paid for legal services, if the defendant is incarcerated before trial, or imprisoned after trial, he is nevertheless given housing, food, and medical care. To be sure, under the Eight Amendment, it is illegal for any punishment to be “cruel and unusual”. In practice, this means that any punishment must, at least, provide for suitable living conditions.
If the suspect, defendant, or offender is provided with such support, it is only fair that victims are assisted as well. To be sure, the definition of injustice is when people, through no fault of their own, suffered injury, damage or death, at the hands of another and are required to bear all the burden. To deny victim compensation, would be tantamount to saying that “crime does pay” for the offender. In fact, without victim compensation they victim potentially sufferer twice, namely: as a result of the crime, and also being forced to bear the costs and burdens of the crime on their own. In short, victim compensation programs fulfil the promise of a criminal justice system that is fair and just to all relevant parties and not just the accused.
A second reason why victim compensation programs are necessary is that they are a general expression social assistance that form the basis of a civilized society. This reason is based on number of fundamental assumptions. First, that crime is a problem that is common to all of society. In other words, crime is not any one person’s responsibility but the responsibility of the whole community (Brooks, 1976). Second, a civilized society has the duty to provide the laws and means for protecting people from crimes. Third, a victim of a crime in a civilized society, gives up his right for revenge to the state. Moreover, the state accepts the responsibility of acting on behalf to the victim in order to ensure that the victim is made whole again (Brooks, 1976). Fourth, a victim of a crime should be considered to have “been denied the ‘protection’ of the laws in a very real sense and society” is responsible for remedying this situation. (Goldberg, 1964). Lastly, making the victim whole again not only means through the arrest and conviction of the offender but also in a compensatory manner that allows the victim to recover any costs that are incurred as a result of the criminal act (Brooks, 1976).
What this means in terms of victim compensation programs is that the state has a duty and responsibility to establish and provide for them. Failure to do so would potentially upset the social contract between the people and the state that allows for a civilized society and community to exist. In short, unless the state wants to return to the days of “Wild West” vigilantism or increasingly take the resolution of crimes into their own hands; then the state needs to do all that it can, including compensating the victims, in order to allow the victim, the trust and faith in the state to resolve criminal activity appropriately and reasonably.
Third, victim compensation programs are what is known in international law as custom, or a belief so common that is must be followed without question. Custom consists of two elements: (1) a widespread state practice and (2) a belief that the practice is a legal obligation that must be followed. Victim compensation as a custom is illustrated in the United States by those two basic facts. First, every state, and the federal government as well, has some form of victim compensation available to the victims of crime (NACVCB, n.d.). Prior to the mid-1960s, there were no such programs. Indeed, the majority of victim compensation programs began only within the last three decades (NACVCB, n.d.). Additionally, the establishment of these programs was not the result of a finding that the Constitution or law required them as was the case for many of the rights of the accused, but rather a widespread belief in the states and the federal government that they had a legal obligation that they should provide such support to victims.
Consequently, the question of whether one thinks the state should provide financial assistance to crime victims who suffer is now purely academic. The fact of the matter is that the state now not only provides such assistance but also the provision of such assistance is so widespread and common that the nation has now grown to rely on it. Now, it is the failure to provide such assistance that would be questionable and in most cases, probably illegal.
In conclusion, just as the accused and the offender are guaranteed a basic level of support for the resolution of their case as well as the punishment imposed on them if convicted, so to should similar support be provided for the victim. The most effective means of doing this is to provide some form of state administered, offender funder victim compensation. Victim compensation programs ensure the enjoyment of a fairness and justice in a civilized society. Moreover, they are custom that are not part of the criminal justice system’s machinery.
References
Brooks, J. (1976). The case for creating compensation programs to aid victims of violent crimes. Retrieved from http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1344&context=tlr
Goldberg, A. (1964). Equality and government action. New York University Law Review, 39. 205-230.
National Association of Crime Victim Compensation Boards (NACVCB). (n.d.). Crime victim compensation: An overview. Retrieved from http://www.nacvcb.org/index.asp?bid=14
Schmutz, J.F. (1971, Oct. 1). Compensation for the criminally injured revisited: An emphasis on the victim. Retrieved from http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2916&context=ndlr
Young, M. & Stein, J. (2004, Dec.). The history of the crime victims’ movement in the United States. Retrieved from https://www.ncjrs.gov/ovc_archives/ncvrw/2005/pg4c.html