UNIFORM VICTIMS OF CRIME ACT

UNIFORM VICTIMS OF CRIME ACT Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-FIRST YEAR IN SAN FRANCISCO, CALIFORNIA JULY 30 – AUGUST 6, 1992 WITH PREFATORY NOTE AND COMMENTS Approved by the American Bar Association Boston, Massachusetts, February 9, 1993 UNIFORM VICTIMS OF CRIME ACT The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Victims of Crime Act was as follows: DONALD E. MIELKE, Office of District Attorney, Suite 300, 1726 Cole Boulevard, Golden, CO 80401, Chair RICHARD L. BRAUN, Campbell University, School of Law, P.O. Box 158, Buies Creek, NC 27506 JACK DAVIES, Court of Appeals, Judicial Building, 25 Constitution Avenue, St. Paul, MN 55155 BARRY H. EVENCHICK, 2 West Northfield Road, Livingston, NJ 07039 MICHAEL B. GETTY, Criminal Court, Room 604, 2600 South California Avenue, Chicago, IL 60608 SHAUN P. HAAS, Legislative Council, Suite 401, 1 East Main Street, Madison, WI 53702 ROBERT H. HENRY, Oklahoma City University, School of Law, 2501 North Blackwelder, Oklahoma City, OK 73106 LINDA JUDD, P.O. Box 999, 1001 Spokane Street, Post Falls, ID 83854 ROGER P. MORGAN, P.O. Box 588, Mystic, CT 06355 RONALD F. PHILLIPS, Pepperdine University, School of Law, 24255 Pacific Coast Highway, Malibu, CA 90263 KENNETH F. KIRWIN, William Mitchell College of Law, 875 Summit Avenue, St. Paul, MN 55105, Reporter DWIGHT A. HAMILTON, Suite 600, 1600 Broadway, Denver, CO 80202, President (Member Ex Officio) WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director JOSEPH P. MAZUREK, P.O. Box 1715, 301 First Bank Building, Helena, MT 59624, Chair, Division B (Member Ex Officio) Review Committee FREDERICK P. STAMP, JR., U.S. District Court, P.O. Box 791, Wheeling, WV 26003, Chair ELWAINE F. POMEROY, 1415 S.W. Topeka Boulevard, Topeka, KS 66612 JAMES A. YATES, Supreme Court, Criminal Term, Room 1715, 100 Centre Street, New York, NY 10013 Advisors to Drafting Committee DAVID E. BEATTY, National Victim Center DAN EDDY, National Association of Crime Victim Compensation Boards JOYCE J. GEORGE, American Bar Association JAY OLSON, Office for Victims of Crime, U.S. Department of Justice JOHN H. STEIN, National Organization for Victim Assistance STEVEN J. TWIST, National Association of Attorneys General H. DEAN WILDERSON, Mothers Against Drunk Driving Final, approved copies of this Act in printed pamphlet or computer diskette form (Word Perfect only) and copies of all Uniform and Model Acts and other printed matter issued by the Conference may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 676 North St. Clair Street, Suite 1700 Chicago, Illinois 60611 (312) 915-0195 UNIFORM VICTIMS OF CRIME ACT TABLE OF CONTENTS PREFATORY NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE 1. GENERAL PROVISIONS SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 102. COMPLIANCE WITH [ACT] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE 2. VICTIMS’ RIGHTS GENERALLY SECTION 201. SECTION 202. SECTION 203. SECTION 204. SECTION 205. SECTION 206. SECTION 207. SECTION 208. SECTION 209. SECTION 210. SECTION 211. SECTION 212. SECTION 213. SECTION 214. SECTION 215. SECTION 216. SECTION 217. SECTION 218. NONDISCLOSURE OF INFORMATION ABOUT VICTIM . . . . . . . . . . . . . VICTIM’S INTEREST IN SPEEDY PROSECUTION . . . . . . . . . . . . . . . . . . . [PROSECUTOR] TO CONFER WITH VICTIM . . . . . . . . . . . . . . . . . . . . . . . SAFETY OF VICTIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PRESENCE AT COURT PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . PROMPT RETURN OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LIMITATIONS ON EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INFORMATION FROM [LAW ENFORCEMENT AGENCY] . . . . . . . . . . . . INFORMATION CONCERNING SERVICES FOR VICTIMS . . . . . . . . . . . . INFORMATION CONCERNING PRETRIAL AND TRIAL MATTERS . . . . INFORMATION CONCERNING SENTENCING . . . . . . . . . . . . . . . . . . . . . . INFORMATION CONCERNING APPEAL OR POST-CONVICTION REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INFORMATION CONCERNING CONFINEMENT . . . . . . . . . . . . . . . . . . . . GENERAL REQUIREMENTS FOR INFORMATION . . . . . . . . . . . . . . . . . . PRESENTENCE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VICTIM-IMPACT STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONSIDERATION OF VICTIM-IMPACT STATEMENT AT [PAROLE HEARING] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DERIVATIVE RIGHTS OF MEMBER OF VICTIM’S FAMILY . . . . . . . . . . 11 14 15 16 17 18 19 20 22 24 25 26 26 28 29 29 32 34 ARTICLE 3. VICTIMS’ COMPENSATION SECTION 301. ORGANIZATION TO ADMINISTER STATE COMPENSATION PROGRAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 302. POWERS AND DUTIES OF [AGENCY] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 303. WHO MAY APPLY FOR COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 304. ELIGIBILITY FOR COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 305. AWARD OF COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 306. COMPENSATION FOR CRIME INSIDE OR OUTSIDE STATE . . . . . . . . . . SECTION 307. BURDEN OF PROOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 308. LIMIT ON COMPENSATION BECAUSE OF FAILURE TO COOPERATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 309. LIMIT ON COMPENSATION BECAUSE OF CLAIMANT’S CONDUCT . . SECTION 310. TIME LIMITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 311. MONETARY LIMITS ON COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . SECTION 312. PROVISIONAL AWARD FOR HARDSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . 35 35 36 37 40 41 42 42 42 46 46 48 NO FEE REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INFORMING [PROSECUTOR] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AUTHORITY TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . REDUCTION OF COMPENSATION FOR RECOVERY FROM ALTERNATIVE SOURCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 317. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SECTION 313. SECTION 314. SECTION 315. SECTION 316. 48 48 48 49 49 ARTICLE 4. REPARATION SECTION 401. SECTION 402. SECTION 403. SECTION 404. SECTION 405. SECTION 406. SECTION 407. DETERMINATION OF ECONOMIC LOSS CAUSED BY CRIME . . . . . . . . ORDER FOR PAYMENT AND RETURN OF PROPERTY . . . . . . . . . . . . . . [JUDGMENT] AGAINST DEFENDANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SUPERVISION OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RECIPIENTS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . UNCLAIMED PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CIVIL ACTION BY VICTIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 52 55 56 57 58 58 ARTICLE 5. MISCELLANEOUS SECTION 501. SECTION 502. SECTION 503. SECTION 504. SECTION 505. UNIFORMITY OF APPLICATION AND CONSTRUCTION . . . . . . . . . . . . . SHORT TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SEVERABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REPEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 59 61 61 61 UNIFORM VICTIMS OF CRIME ACT PREFATORY NOTE The Uniform Victims of Crime Act, approved and promulgated by the National Conference of Commissioners on Uniform State Laws at its Annual Meeting in San Francisco on August 5, 1992, is designed to provide effective, comprehensive, and systematic protection of the best interests of victims of crime. History of the Act The Conference approved the Uniform Crime Victims Reparations Act (UCVRA) in 1973. The UCVRA was enacted in five states, with four others adopting a substantially similar act. A Study Committee appointed following the Conference’s 1988 Annual Meeting unanimously recommended that a Uniform Act be drafted that revises and renames the UCVRA and includes within its scope the addition of various areas that are usually referred to as victims’ rights. The areas recommended for inclusion were restitution, compensation, notification, victim bill of rights, definitions, specific victim rights, and victim enforcement mechanisms. In January 1989 the Conference’s Scope and Program Committee recommended that a Uniform Act be drafted revising the 1973 Act, including the above items within its scope, and being designated as the Uniform Victims of Crime Act. In February 1989, the Executive Committee approved the appointment of a Drafting Committee. The President appointed members of that Drafting Committee after the 1989 Annual Meeting. The Drafting Committee met in December 1989 in Denver to review a draft prepared by Drafting Committee Chair Donald Mielke. In January 1990, it met in Washington, D.C. to review Committee Chair Mielke’s redraft with accompanying Comments. At this meeting, Professor James M. McGoldrick of Pepperdine University School of Law commenced service as Reporter. The Committee was also joined by advisors from the National Organization for Victim Assistance (NOVA), the U.S. Department of Justice Office for Victims of Crime, and the National Association of Crime Victim Compensation Boards, as well as its ABA advisor, Joyce George, Chair of the Victims Committee of the ABA Section of Criminal Justice. 1 The Conference considered the Drafting Committee’s third draft upon the Act’s initial reading at the Conference’s 1990 annual meeting in Milwaukee. Commissioners offered many helpful comments and suggestions during and after that reading. The Drafting Committee met on October 12-14, 1990, in Denver, where Reporter McGoldrick presented a revised draft. This was the first meeting for Linda Judd, appointed to the Drafting Committee after the 1990 annual meeting. In addition to its advisors from the ABA, NOVA, the National Association of Crime Victim Compensation Boards, and the U.S. Department of Justice Office for Victims of Crime, the Committee was joined by new advisors from the National Association of Attorneys General and from Mothers Against Drunk Driving (MADD). The Committee spent a considerable amount of time reviewing the comments and suggestions made at the Conference’s 1990 annual meeting on a section-by-section basis. Then the Committee reviewed the article on compensation. Informative and spirited exchanges between advisors representing compensation boards and victim advocates resulted in a number of improvements in that article. The Committee also reviewed the proposed changes before Congress dealing with victims’ issues and incorporated some ideas from those proposals. The Committee reviewed changes proposed by MADD and reviewed the article on restitution. Finally, the Committee spent considerable time on definitions and the victims’ rights sections. The Drafting Committee next met on January 11-13, 1991, in Washington, D.C. In addition to its advisors from NOVA, MADD, the National Association of Crime Victim Compensation Boards, and the U.S. Department of Justice Office for Victims of Crime, the Committee was joined by John Ford, President of the National Association of Crime Victim Compensation Boards, who expressed concerns regarding the compensation section. The Drafting Committee made significant changes in the draft to address those concerns. It also made considerable modifications in the restitution provisions. The Drafting Committee also met on March 8-10, 1991, in Chicago to review a redraft with accompanying Comments. At this meeting, in addition to its advisors from the ABA, NOVA, MADD, and the U.S. Department of Justice Office for Victims of Crime, the Committee was joined by Peter Langrock, Chair of the Review Committee. The Committee removed a section on child victims because it was beyond the scope of the present project and recommended that a separate Drafting Committee be appointed to complete that project. The Committee also 2 addressed the Review Committee’s Report concerning the December 1990 draft. The Committee restructured the Act and revised the restitution sections. The Conference considered the Drafting Committee’s sixth draft upon the Act’s second reading at the Conference’s 1991 annual meeting in Naples, Florida. Again, Commissioners offered numerous helpful comments and suggestions. After the 1991 annual meeting, Jack Davies and Barry H. Evenchick were added to the Drafting Committee and Professor Kenneth F. Kirwin of William Mitchell College of Law was appointed as the Drafting Committee’s new Reporter. The Drafting Committee met on November 8-10, 1991 at Chicago to review the Reporter’s redraft with Comments and Issues for Committee. At this meeting the Committee was joined by its advisors from the ABA and the U.S. Department of Justice Office for Victims of Crime. The Committee worked through the sections on definitions and victims’ rights generally, and most of the sections on victims’ compensation. It adopted numerous changes in response to the comments and suggestions made at the Conference’s 1991 annual meeting. The Committee made substantial modifications in a number of provisions, including those regarding the definition of victim’s family members, rights of victim’s family members, victim privacy, speedy prosecution, information about incarceration, victim-impact statement, types of crimes covered by victim compensation, out-ofstate crimes, losses covered by victim compensation, deductibles, and contributory conduct. The Committee agreed that the Reporter should consult with the Style Committee about dividing the Act into articles and using a different numbering system. The Drafting Committee next met on February 14-16, 1992 at Richmond, Virginia to consider the Reporter’s reorganized and renumbered redraft with Comments and Issues for Committee and the Style Committee’s changes, proposals, and questions. At this meeting, in addition to its advisors from the ABA, the National Association of Crime Victim Compensation Boards, and the U.S. Department of Justice Office for Victims of Crime, the Committee was joined by Review Committee Chair Frederick P. Stamp and Robert Armstrong of the Virginia Crime Victims Compensation Board. At this meeting, the Committee worked through all of the sections, starting with those on victim compensation, restitution, and the general provisions before returning to those on definitions and victims’ rights. The Committee made significant modifications in a number of provisions, including those regarding eligibility for compensation, out-of-state crimes, reducing or deferring compensation because of limited funds, alternative sources, subrogation, finding of losses caused by crime, restitution, enforcing compliance with the Act, 3 nondisclosure of information about victim of sex crime, victim-impact statement at parole hearing, and derivative rights of victim’s family member. Pursuant to the Style Committee’s suggestion, the Drafting Committee omitted the former first section of the Act on legislative intent. The Committee also reviewed redrafts that the Reporter prepared at the meeting. On April 6, 1992, the Drafting Committee conducted a conference call regarding the Reporter’s redraft of the Act with Comments. The Committee adopted changes in the provisions on the victim compensation agency’s duties and on eligibility for victim compensation and made several stylistic modifications. The Conference considered the Drafting Committee’s ninth draft at its 1992 Annual Meeting in San Francisco. The draft and numerous amendments proposed by Commissioners and drafted by the Drafting Committee in response to Commissioners’ suggestions received extensive consideration during four sessions at the Annual Meeting. The Conference gave the Act final approval on August 5, 1992, and now promulgates it for adoption by the States. Summary of Contents The fundamental objective underlying this Act is the protection of the best interests of victims of crime. This Act seeks to ensure that crime victims are treated with the dignity and respect they deserve while functioning in a system in which they find themselves through no fault of their own. The Act seeks to accommodate that objective and crime victims’ needs and rights with defendants’ constitutional rights. Because of a lack of victim remedies and inconsistency in statutes protecting crime victims, a number of states have adopted constitutional amendments. Although crime victims’ rights have been elevated to a constitutional level, no state has an automatic enforcement system or inherent remedies should a victim’s rights be violated. Also, there is usually no duty on anyone in the criminal justice system to implement the victim’s rights or follow through on behalf of the victim. This Act makes substantial progress toward rectifying those shortcomings. This Act is also prompted by recent changes in federal law. This Act is consistent with those changes, and is designed to set forth the “best-of-all-worlds” of victim legislation. A Uniform Act governing victims of crime is desirable for a number of reasons. There is great inconsistency among the states on the definition of “victim.” Although all but a few states profess to have a Victim’s Bill of Rights, 4 they range from a comprehensive statutory enactment with 17 subsections to a legislative resolution without force or effect. Victim’s legislation is not consolidated in one place in most states. Although all states have some form of victim restitution, inconsistency reigns. In existing state statutes regarding victim rights, there are no assignments of responsibility for those rights, e.g., the victim has a right to be informed but nowhere is there a duty on anyone to transmit the information to the victim. This Act is divided into five Articles: Article 1, General Provisions; Article 2, Victims’ Rights Generally; Article 3, Victims’ Compensation; Article 4, Reparation; and Article 5, Miscellaneous. Article 1. General Provisions. Section 101 defines the operative terms employed throughout the Act: crime, member of the victim’s family, person, representative of the victim, State, and victim. Section 102 requires the prosecutor to enforce compliance with this Act and specifies that failure to comply with this Act does not create a damage claim against any government employee, official, or entity, although a governmental employer may be held liable for violating Section 207. Article 2. Victims’ Rights Generally. Sections 201 through 216 require designated agencies to comply with specific requirements in order to protect the victim’s rights to nondisclosure of information, speedy prosecution, conferring about important decisions, safety, presence at court proceedings, prompt return of property, freedom from employment discipline, participating in the presentence investigation, presenting victim-impact statements, and receiving information about services for victims, court procedures, sentencing, incarceration, and release. Section 218 specifies that if a victim is a minor or is incapacitated, incompetent, or deceased, a member of the victim’s family may exercise these rights. Article 3. Victims’ Compensation. Sections 301 and 302 specify the powers and duties of the agency administering the victims’ compensation program. Sections 303 and 304 specify who may apply for and receive compensation. Section 305 specifies the economic loss that may be awarded. Section 306 authorizes compensation for crimes committed within the state and in certain circumstances for crimes committed outside the state. Section 307 specifies the burden of proof. Sections 308 and 309 specify limitations because of the claimant’s failure to cooperate or contributory conduct. Sections 310 and 311 specify time limits (including that a claim must be paid within 90 days except in specified circumstances) and monetary limits (including an optional provision for a deductible). Section 312 authorizes a hardship award of up to $1000. Sections 313 and 314 preclude the agency from 5 charging an application fee and require it to promptly inform the prosecutor upon receiving an application. Section 315 specifies that by making a claim, the claimant authorizes the agency to obtain and examine relevant health records. Section 316 permits reduction of compensation because of recovery from alternative sources. Section 317 subrogates the agency to the claimant’s claim for relief against the offender. Article 4. Reparation. Section 401 specifies that if the court imposes a criminal penalty or disposition, it may make a determination of the economic loss caused to any person by the crime. Section 402 provides that the court may determine the defendant’s ability to make restitution and order the defendant to return any property of the victim, pay restitution in a lump sum or in installments, and pay up to one-third of prison earnings. It also gives the court continuing jurisdiction to order payment not to exceed the amount determined under Section 401. Section 403 allows the court to enter a judgment against the defendant for the amount ordered under Section 402 and specifies that the judgment may be enforced by the State, the victim, a deceased victim’s estate, or any other beneficiary of the judgment in the same manner as a judgment for money in a civil action. Sections 404 through 407 cover supervision of payment, priority among recipients of restitution, unclaimed payments, and civil action by the victim. Article 5. Miscellaneous. Sections 501 though 505 cover uniformity, short title, severability, effective date, and repeals. The Conference wishes to gratefully acknowledge the advice, support, research and information furnished by: Joyce George, Victims Committee, ABA Criminal Justice Section Susan W. Hillenbrand, Staff, American Bar Association Jay Olson, National Victims Center, Office for Victims of Crime, U.S. Department of Justice David Beatty, National Victim Center John Stein and Chris Edmunds, National Organization for Victim Assistance Dan Eddy, National Association of Crime Victim Compensation Boards Steve Twist, National Association of Attorneys General Dean Wilkerson, Mothers Against Drunk Driving Susan Cunningham, Legal Research Assistant, First Judicial District Attorney’s Office, Colorado 6 UNIFORM VICTIMS OF CRIME ACT ARTICLE 1. GENERAL PROVISIONS SECTION 101. DEFINITIONS. In this [Act]: (1) “Crime” means [an act or omission committed by a person, whether or not competent or an adult, which, if committed by a competent adult, is punishable by [incarceration] [and that violates _____________________]]. (2) “Member of the victim’s family” means [the spouse, a child by birth or adoption, a stepchild, a parent, a stepparent, a sibling,] or an individual designated by the victim or by a court in which the crime is being or could be prosecuted, but does not include an individual who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. (3) “Person” means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (4) “Representative of the victim” means a member of the victim’s family or an individual designated by the victim or by a court in which the crime is being or could be prosecuted. (5) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States. (6) “Victim” means a person against whom a crime has been committed, but does not include a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan and does not include a government or a governmental subdivision, agency, or instrumentality. Comment “Crime” This Act uses the same definition of “crime” throughout – in Article 2 on victims’ rights generally, Article 3 on victims’ compensation, and Article 4 on 7 reparations – although Section 304 has bracketed language for limiting victim compensation to victims of violent crimes. In this Act, “crime” covers an offense even if it is (1) uncharged, (2) denominated as an act of juvenile delinquency rather than a crime because of the offender’s age, or (3) subject to a successful mental nonresponsibility (insanity) defense. There is no requirement that a defendant be successfully prosecuted or even identified for a victim to be entitled to the rights under this Act. Incarceration includes confinement in a local jail, workhouse, or similar facility or in a state prison or other correctional institution. The word “incarceration” is bracketed so that a State may insert within the brackets a minimum period of incarceration; a State doing so should be sure not to exclude drunk driving or domestic violence. See 42 U.S.C. § 10602(b)(1) (West Supp. 1992) (victim compensation program eligibility for federal funds). Similarly, “and that violates _____” is bracketed to allow a state to insert language that tailors the definition to existing laws or expands the definition to include particular crimes. “Member of the victim’s family” Several provisions in Article 2 (victims’ rights generally) extend protection to a member of the victim’s family as well as to the victim: Section 201 (nondisclosure of information) and Section 204 (protection from harm, harassment, intimidation, or retaliation). Section 218 specifies that if the victim is a minor or is incapacitated, incompetent, or deceased, a member of the victim’s family may exercise the victim’s rights under Article 2. In Article 3 (victims’ compensation), Section 305(a)(3) provides compensation for services the victim if not injured would have performed for a member of the victim’s family. The words “the spouse, a child by birth or adoption, a stepchild, a parent, a stepparent, a sibling” are bracketed so that a State may add or delete language to define “member of the victim’s family” according to the existing laws of the State. Compare Minn. Stat. Ann. § 260.181(3) (West Supp. 1992) (child placement) (“‘relative’ includes members of a child’s extended family and important friends with whom the child has resided or had significant contact”); N.Y. Correct. Law § 149-a(1)(b) (McKinney 1987) (notice upon release of prisoner) (“‘Family member’ means any person related to a victim within the third degree of consanguinity or affinity or any person residing in the same household with a victim”). 8 In addition to the listed relatives, “member of the victim’s family” includes an individual designated by the victim or the court. However, the definition excludes an individual who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. “Person” This Act specifies “person” (as distinct from “individual”) in several instances. For example, Section 303(a)(2) allows certain persons acting on behalf of eligible individuals to file for victim compensation, Section 316(a) reduces recovery to the extent the claimant could recover from the person responsible, and Section 317(a) subrogates the victim compensation agency to the claimant’s right of action against the person responsible. “Representative of the victim” Section 207 protects a representative of the victim from employment discharge or discipline for participating in a criminal justice proceeding. The definition of “representative of the victim” is similar to Mich. Comp. Laws Ann. § 780.752(2) (Supp. 1992) (“If a victim . . . is physically unable to exercise the privileges and rights under this act, the victim may designate his or her spouse or a child 15 years of age or older, parent, sibling, or grandparent of the victim to act in place of the victim during the duration of the physical disability”). “Victim” The term “victim” appears in almost every section of Article 2 (victims’ rights generally), Article 3 (victims’ compensation), and Article 4 (reparations). The term “victim” is inconsistently defined among state statutes. Several States define victim to include family members. See, e.g., Ariz. R. Crim. P. 39; Ind. Code § 35-37-6-3 (West Supp. 1992). One of the most comprehensive definitions of “victim” is found in Mich. Comp. Laws Ann. § 780.752(1)(g) (Supp. 1992), which states: “Victim,” except for purposes of [the section on reparations], means any of the following: (i) an individual who suffers direct or threatened physical, financial or emotional harm as a result of the commission of a crime, except as provided in subparagraphs (ii), (iii), or (iv). 9 (ii) The following relations of a deceased victim if the relation is not the defendant: (A) The spouse; (B) Any child 15 years of age or older if subparagraph (A) does not apply; (C) A parent if subparagraphs (A) and (B) do not apply; (D) A sibling if subparagraphs (A) to (C) do not apply; (E) A grandparent if subparagraphs (A) to (D) do not apply. (iii) A parent, guardian or custodian of a victim who is less than 18 years of age if the parent, guardian, or custodian so chooses. (iv) A parent, guardian, or custodian of a victim who is so mentally incapacitated that he or she cannot meaningfully understand or participate in the legal process. Illinois’ definition of victim is typical of one which does not include family members: “Victim means a person killed or physically injured in this State as a result of a crime perpetrated or attempted against that person.” Ill. Ann. Stat. ch. 70, para. 402.3 (Smith-Hurd 1989). Georgia similarly defines “victim” to mean “a person who suffers personal physical injury, financial hardship, or death as a direct result of a crime.” Ga. Code Ann. § 17-15-2(7) (Michie 1990). Wisconsin defines a victim as a person “who is injured or killed by an incident . . . or by any act or omission [as specified in various state statutes].” Wis. Stat. Ann. § 949.01(6) (West 1982 & Supp. 1991). With regard to a crime involving a corpse, it might be argued that heirs or family members are victims in that they are persons against whom the crime has been committed. If a State desired to make this clearer, it could specify that in the case of abuse of a corpse, victim includes a member of the deceased individual’s family. Section 218 specifies that if the victim is a minor or is incapacitated, incompetent, or deceased, a member of the victim’s family may exercise the victim’s rights under Article 2. 10 SECTION 102. COMPLIANCE WITH [ACT]. (a) Consistent with the duty to represent the interests of the public as a whole, a [prosecutor] shall enforce compliance with this [Act] on behalf of victims and members of victims’ families. (b) Failure to comply with this [Act] does not create a [claim for damages] against a government employee, official, or entity, but a governmental employer may be held liable for violating Section 207. Comment Although the prosecutor is local and accessible, a State might determine that the attorney general should be charged with enforcing compliance with at least some parts of this Act (e.g., Article 3 regarding victim compensation). The first part of subsection (b) establishes an immunity similar to that specified in 42 U.S.C.A. § 10607(d) (West Supp. 1992) (“This section does not create a cause of action or defense in favor of any person arising out of the failure of a responsible person to provide information”). This immunity does not extend to a governmental employer liable for violating Section 207. Compare Conn. Gen. Stat. Ann. § 54-85b(b) (West 1985) (employee may bring “civil action for damages and for an order requiring his reinstatement or otherwise rescinding [employer’s unlawful] action”); Iowa Code Ann. § 910A.12 (West Supp. 1992) (employee may recover damages and may petition for cease and desist order against employer and for reinstatement). ARTICLE 2. VICTIMS’ RIGHTS GENERALLY SECTION 201. NONDISCLOSURE OF INFORMATION ABOUT VICTIM. (a) If a victim requests confidentiality, neither a [law enforcement agency], the [prosecutor], nor the [corrections department] may disclose, except among themselves, the residential address, telephone number, or place of employment of the victim or a member of the victim’s family, except to the extent that disclosure is of the site of the crime, is required by law or [the Rules of Criminal Procedure], is necessary for law enforcement purposes, or is permitted by the court for good cause. 11 (b) A court may not compel a victim or a member of the victim’s family testifying in a criminal justice proceeding to disclose a residential address or place of employment on the record in open court unless the court finds that disclosure of the information is necessary. (c) A [law enforcement agency] may not disclose to the public information directly or indirectly identifying the victim of a [sex crime] except to the extent that disclosure is of the site of the crime, is required by law, is necessary for law enforcement purposes, or is permitted by the court for good cause. Comment (a) Nondisclosure of information generally The words “law enforcement agency,” “prosecutor,” “corrections department,” and “the Rules of Criminal Procedure” are bracketed so that a State may substitute other appropriate nomenclature like police department, district attorney, bureau of prisons, or Code of Criminal Procedure. Subsection (a) does not prevent disclosure of information about a crime against a governmental entity because Section 101(6)’s definition of victim excludes “a government or a governmental subdivision, agency, or instrumentality.” A victim may withdraw a request for confidentiality under subsection (a). Subsection (a) is similar to several current provisions. See, e.g., 42 U.S.C.A. § 10606(b)(1) (West Supp. 1992) (crime victim has “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy”); Mich. Comp. Laws Ann. § 780.758(2) (West Supp. 1991) (“The address of the victim shall not be in the court file or ordinary court documents unless contained in a transcript of the trial or it is used to identify the place of the crime. The phone number of the victim shall not be in the court file or ordinary court documents except as contained in the transcript of the trial”); Tex. Crim. Proc. Code Ann. art. 42.18(8)(f)(4) (West Supp. 1992) (“the pardons and paroles division or the institutional division may not disclose to any person the name or address of a victim . . . unless the victim . . . approves the disclosure or [division] is ordered to disclose the information by a court of competent jurisdiction after the court determines that there is good cause for disclosure”). See also ABA Standards for Criminal Justice 18-5.21(b) (3d ed. 1993) (“The rules [of procedure] should establish appropriate measures to protect the privacy of offenders or victims with regard to information, included in sentence reports, that is not otherwise a matter of public record”); Office for Victims of Crime, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation V-9 to V-10, V-16 (May 1986). 12 The rights of defendants will not be infringed by preserving the privacy of victims. Any necessary contact between the victim and defendant’s counsel can be arranged in a setting to protect the victim’s privacy and ensure the victim’s safety. A defense attorney, as an officer of the court, has an affirmative duty to prevent disclosure of a victim’s address and telephone number to a defendant or a defendant’s relatives. (b) Nondisclosure of address in court Subsection (b) is very similar to Minn. Stat. Ann. § 611A.035 (West Supp. 1992) (“No victim or witness providing testimony in court proceedings may be compelled to state a home or employment address on the record in open court unless the court finds that the testimony would be relevant evidence”). See S.D. Codified Laws Ann. § 19-14-18.1 (1987) (“The courts . . . shall not require that witnesses, at time of questioning in open court, release their specific addresses unless it is required by due process or is in the interest of justice”). Office for Victims of Crime, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation V-15 to V-16 (May 1986) sets forth the following proposed provision: During a trial or hearing related to a criminal prosecution, the court shall require that the residence and business addresses and telephone numbers of any victim of or witness to the crime shall not be disclosed in open court, and that a victim or witness shall not be required to provide the addresses or telephone numbers of the victim or witness in response to defense or prosecution questioning, unless the court determines that there is a clear need for such disclosure because the information is necessary and relevant to the facts of the case or the credibility of the witness. The burden to establish the need and relevance for disclosure shall be on the defense or the party seeking the disclosure. Prior to ordering disclosure, the court shall be reasonably assured that the victim or witness is known not to be at risk of personal harm resulting from the disclosure, or is adequately protected from such risk. A State may desire to incorporate provisions similar to those in Section 201(a) and (b) in its statutes applicable to prosecution witnesses other than victims and victims’ family members. (c) Withholding name of sex crime victim This section is similar to several current provisions. See Mass. Gen. Laws Ann. ch. 265, § 24C (West 1990) (“That portion of the records of a court of any police department . . . which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape . . . shall be 13 withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted”); Ohio Rev. Code Ann. § 2907.11 (Anderson 1987) (“Upon the request of the victim or offender in a [sex crime] prosecution . . . the judge . . . shall order that the names of the victim and offender and the details of the alleged offense as obtained by any law enforcement officer be suppressed until the preliminary hearing, the accused is arraigned in the court of common pleas, the charge is dismissed, or the case is otherwise concluded, whichever occurs first”); S.D. Codified Laws Ann. § 23A-622 (1988) (“Upon request of the victim or the accused in a prosecution for rape, incest, or sexual contact, the court shall order that the names of the victim and the accused and details of the alleged offense be suppressed until the accused is arraigned, the charge is dismissed, or the case is otherwise concluded, whichever occurs first”); Wyo. Stat. § 6-2-310(a) (1988) (“Prior to the filing of an information or indictment, neither the names of the alleged actor or victim of a sexual assault nor any other information reasonably likely to disclose the identity of the victim shall be released or negligently allowed to be released to the public by any public employee except as authorized by the judge”). Compare Tex. Code Crim. Proc. Ann. arts. 57.01(2), 57.02 (West Supp. 1992) (procedure for pseudonyms in sex crime cases). The words “sex crime” are bracketed so that each State may insert the applicable references. SECTION 202. VICTIM’S INTEREST IN SPEEDY PROSECUTION. (a) A [prosecutor], if practicable, shall inform a victim of a pending motion that may substantially delay the prosecution. The [prosecutor] shall inform the court of the victim’s position on the motion, if any. (b) If a victim objects to a delay, the court shall consider the victim’s objection and, if it grants the motion, state in writing or on the record that it has considered the objection. Comment This section recognizes the victim’s interest in a speedy prosecution of the criminal case. Compare Md. Ann. Code art. 27, § 761(14) (1992) (victim or witness “entitled to a speedy disposition of the case . . . in order to minimize the length of time the individual must endure responsibilities and stress in connection with the matter”); Colo. Rev. Stat. Ann. § 24-4.1-303(1)(h) (West 1990) (substantially same); Mo. Ann. Stat. § 595.209(13) (Vernon Supp. 1992) (similar); Minn. Stat. Ann. § 611A.033 (West. 1987) (prosecutor must make reasonable 14 efforts to comply with victim’s request that prosecutor invoke rule requiring trial to commence within 60 days). The court may grant legitimate delays when justice requires, but the court must consider any objections made by the victim. See Paul S. Hudson, The Crime Victim and the Criminal Justice System: Time for a Change, 11 Pepp. L. Rev. 23, 58 (1984). This section is not intended to conflict in any way with the defendant’s constitutional rights. SECTION 203. [PROSECUTOR] TO CONFER WITH VICTIM. Consistent with the duty to represent the interests of the public as a whole, a [prosecutor], to the extent practicable, shall confer with a victim before amending or dismissing a charge or agreeing to a [negotiated plea] or [pretrial diversion]. Failure of the [prosecutor] to confer with the victim does not affect the validity of an agreement between the [prosecutor] and the defendant or of an amendment, dismissal, plea, [pretrial diversion], or other disposition. Comment This provision parallels the view adopted by the American Bar Association on two separate occasions. See ABA Standards for Criminal Justice 14-3.1(d) (2d ed. 1980) (“The prosecuting attorney should make every effort to remain advised of the attitudes and sentiments of victims . . . before reaching a plea agreement”); ABA Guidelines for Fair Treatment of Victims and Witnesses in the Criminal Justice System, Guideline 10 (1983) [hereinafter ABA Victim/Witness Guidelines] (“Victims or their representatives in serious cases should have the opportunity to consult with the prosecutor prior to dismissal of the case or filing of a proposed plea negotiation with the court, and should be advised of this opportunity as soon as feasible”). Compare 42 U.S.C.A. § 10606(b)(5) (West Supp. 1992) (crime victim has “[t]he right to confer with attorney for the Government in the case”). Conferring with victims will lead to greater victim satisfaction with the criminal justice system. This should increase victims’ cooperation in the reporting of crimes and the prosecution of criminal offenders. Implementation of this section is particularly important in serious cases: all felonies, crimes of violence, and other cases where a victim’s well being is an ongoing concern. It may not always be possible for the prosecutor to confer with the victim because of the volume of cases, but the prosecutor should make a good faith effort to do so whenever possible. 15 The duty to confer does not require obtaining the victim’s consent. While the prosecutor should be sensitive to the victim’s interests, it is a prosecutor’s duty and responsibility to represent the interests of the State. Josephine Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 Pepp. L. Rev. 117, 144 (1984). This section’s last sentence is very similar to N.Y. Exec. Law § 642(1) (McKinney Supp. 1992). SECTION 204. SAFETY OF VICTIM. (a) The [appropriate law enforcement official] shall make a reasonable effort to protect a victim and members of the victim’s family from harm, harassment, intimidation, or retaliation for having cooperated in the reporting, investigation, or prosecution of a crime. (b) The [appropriate official] shall make a reasonable effort to minimize unwanted contact between the victim, members of the victim’s family, or prosecution witnesses and the defendant, members of the defendant’s family, or defense witnesses before, during, and immediately after a judicial proceeding. Comment Subsection (a) is similar to 42 U.S.C.A. § 10607(c)(1) (West Supp. 1992) (“A responsible official shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender”). Compare id. § 10606(b)(2) (crime victim has “[t]he right to be reasonably protected from the accused offender”). Subsection (b) would have the effect of requiring separate waiting areas, although the waiting areas need not be in different rooms. Compare 42 U.S.C.A. § 10607(c)(4) (West Supp. 1992) (“During court proceedings, a responsible official shall ensure that a victim is provided a waiting area removed from and out of the sight and hearing of the defendant and defense witnesses”). “Reasonable effort” to minimize contact will vary with the circumstances, including situations when the victim and the defendant live in close proximity. Studies have shown the problem of victim/witness intimidation is more critical than most criminal justice professionals realize. Paul S. Hudson, The Crime Victim and the Criminal Justice System: Time for A Change, 11 Pepp. L. Rev. 23, 53 (1984). The studies indicate that anywhere from 8% to 48% of all complaining witnesses are intimidated by threats from the defendant or by someone acting on the 16 defendant’s behalf. Id. at 54. This kind of intimidation may significantly contribute to the dissatisfaction and noncooperation of crime victims and witnesses. Id. at 53. See generally ABA Criminal Justice Section, Reducing Victim/Witness Intimidation: A Package (1981), setting forth recommendations to legislatures, law enforcement agencies, prosecutors, courts, bar groups, and community agencies. SECTION 205. PRESENCE AT COURT PROCEEDINGS. (a) A victim or an individual designated by the victim may be present whenever a defendant has a right to be present during a court proceeding concerning the crime charged other than a grand jury proceeding, unless the court determines that exclusion of the victim or the designated individual is necessary to protect the defendant’s right to a fair trial [or the confidentiality or fairness of a juvenile proceeding]. If the victim is present, the court, at the victim’s request, shall permit the presence of an individual to provide support to the victim, unless the court determines that exclusion of the individual is necessary to protect the defendant’s right to a fair trial. (b) Unless a victim requests otherwise, the [prosecutor] shall promptly inform the victim of the date, time, and place of each court proceeding relative to the disposition of the case at which the victim has a right to be present. Comment The right of the victim to be present at the court proceeding has been addressed by a number of jurisdictions. See, e.g., 42 U.S.C.A. § 10606(b)(4) (West Supp. 1992) (crime victim has “[t]he right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial”). The victim’s right to be present is generally an exception to the normal rules requiring the exclusion of witnesses. South Carolina has a provision to prevent the automatic sequestering of victims or support persons. S.C. Code Ann. § 16-31530(c)(8) (Law. Co-op. 1985 & Supp. 1990). Alabama allows the victim to sit at counsel table. Ala. Code § 15-14-53 (Supp. 1992). The movement toward state constitutional amendments protecting victims’ rights supports this recognition of the victim’s right to be in the courtroom during court proceedings. As this section indicates, there may be legitimate reasons for excluding any potential witness, including a victim, from certain proceedings. The words “or the confidentiality or fairness of a juvenile proceeding” are bracketed so that the State 17 may limit or expand the exceptions to the victim’s right to be present at court proceedings. Subsection (b) is similar to 42 U.S.C.A. § 10607(c)(3)(D) (West Supp. 1992) (responsible official shall provide victim the earliest possible notice of the scheduling of each court proceeding that the witness is required or entitled to attend). See ABA Victim/Witness Guideline 4 (victims should be “notified as soon as practicable of scheduling changes that will affect their required attendance at criminal justice proceedings, or be given access to a system providing up-to-date scheduling information”); id. Guideline 6 (victims of serious crimes should be “given the opportunity to enter a standing request for and receive timely manner advance notice of the date, time and place of the defendant’s initial appearance before a judicial officer, submission to the court of plea agreements, the trial, and sentencing”). SECTION 206. PROMPT RETURN OF PROPERTY. A person holding property of a victim shall take reasonable care of the property. The [responsible official] shall promptly return the property to the victim when it is no longer needed for evidentiary purposes unless it is contraband or subject to forfeiture. Comment This is very similar to 42 U.S.C.A. § 10607(6) (West Supp. 1992) (“any property of a victim that is being held for evidentiary purposes [shall] be maintained in good condition and returned to the victim as soon as it is no longer needed for evidentiary purposes”). See ABA Victim/Witness Guideline 13 (“Victims of property crimes should have their property returned as expeditiously as possible, e.g., through photographing such property for use in evidence”). The President’s Task Force has recommended that judges give substantial weight to victims’ interests in the speedy return of property before trial in ruling on the admissibility of photographs as a valid substitute for such property. U.S. Department of Justice, Office of Justice Programs, Four Years Later: A Report on the President’s Task Force on Victims of Crime 31 (1986). The responsible official should consult with the prosecutor to determine whether the victim’s property is needed for evidentiary purposes. It is not the intent of this section to jeopardize the ability of the prosecution to prosecute. Evidentiary purposes could include the need for the prosecution to retain the property for trial, retrial, or during an appellate process that could result in a retrial. 18 SECTION 207. LIMITATIONS ON EMPLOYER. An employer may not discharge or discipline a victim or a representative of the victim for: (1) participation at the [prosecutor’s] request in preparation for a criminal justice proceeding; or (2) attendance at a criminal justice proceeding if the attendance is reasonably necessary to protect the interests of the victim. Comment This is similar to a number of current provisions. See, e.g., Conn. Gen. Stat. Ann. § 54-85b(a) (West 1985) (“An employer shall not deprive an employee of his employment, penalize or threaten or otherwise coerce him with respect thereto, because the employee obeys a legal subpoena to appear before any court of this state as a witness in any criminal proceeding”); Ind. Code Ann. § 35-44-3-11.1 (West 1986) (misdemeanor to dismiss employee, deprive employee of employment benefits, or threaten to do so, because employee has received or responded to subpoena in criminal proceeding); Iowa Code Ann. § 910A.12 (West Supp. 1992) (“An employer shall not discharge an employee from or take or fail to take action regarding an employee’s promotion or proposed promotion or take action to reduce an employee’s wages or benefits, for actual time worked, due to the service of an employee as a witness in a criminal proceeding”). “Discipline” does not mean merely failing to pay an employee for time not worked. Docking pay for more than the time missed is discipline. ABA Victim/Witness Guideline 5 provides: Victims and witnesses who request it should be provided with employer and creditor intercession to seek employer cooperation in minimizing employees’ loss of pay and other benefits resulting from their participation in the criminal justice process, and to seek consideration from creditors if the victim is unable, temporarily, to continue payments. See Ill. Ann. Stat. ch. 38, para. 1404(14) (Smith-Hurd Supp. 1992) (victim entitled to “appropriate employer intercession services by the State’s Attorney or victim advocate personnel to ensure that employers of victims will cooperate with the criminal justice system in order to minimize an employee’s loss of pay and other benefits resulting from court appearances”). Many victim/witness programs provide “on-call” programs whereby the victims and witnesses are called in when needed for trial. This enables the witness 19 to remain at work until actually needed, thereby eliminating wasted time in the waiting room. SECTION 208. INFORMATION FROM [LAW ENFORCEMENT AGENCY]. (a) After initial contact between a victim and a [law enforcement agency] responsible for investigating a crime, the [agency] shall promptly give in writing to the victim: (1) an explanation of the victim’s rights under this [Act]; (2) information concerning the availability of: (i) assistance to victims, including medical, housing, counseling, and emergency services; (ii) compensation for victims under this [Act] and the name, street address, and telephone number of the [agency] to contact; (iii) protection of the victim, including protective court orders; and (iv) access by the victim and a defendant to public records related to the case. (b) As soon as practicable, the [law enforcement agency] shall give to the victim, as relevant, the following: (1) information as to the suspect’s identity unless inconsistent with law enforcement purposes; (2) information as to whether the suspect has been taken into custody, has escaped, or has been released, and any conditions imposed on the release; (3) the file number of the case and the name, street address, and telephone number of a [law enforcement officer] assigned to investigate the case; and (4) the [prosecutor’s] name, office address, and telephone number. 20 Comment Victims should be informed of the general rule that public records related to criminal proceedings are open to public inspection, of any relevant exceptions to that general rule, and of any relevant procedures whereby a victim may request the court to limit public access. As members of the public with a particular interest in the case, victims of crime should be allowed access to all records and transcripts of the criminal proceedings. Subsection (a)(2)(iv) deals with public records and does not envision disclosure of reports, documents, or evidence that would jeopardize the prosecution of the case. The prosecution would be justified in refusing to disclose to a potential witness reports, documents, or evidence that would taint, enhance, or change the recollection of a witness; the witness must testify on the basis of direct knowledge and not information received from other sources. The ABA Victim/Witness Guidelines require informing the victim about some of the matters specified in this section. Guideline 1 requires that victims be provided appropriate information about availability of social and medical services, crime victim compensation, and restitution. Guideline 2 calls for victims and witnesses to be provided information “about their role in the criminal justice process, including what they can reasonably expect from the system and what the system expects from them.” Guideline 3 requires advising them of available protection against unlawful intimidation. Guideline 8 requires that as soon after arrest as possible, victims in serious cases “be given the opportunity to enter a standing request for and subsequently receive prompt notification of any decision or action in the case which results in the defendant’s provisional or final release from state custody.” See also 42 U.S.C.A. § 10607(c) (West Supp. 1992) which specifies: (1) A responsible official shall – (A) inform a victim of the place where the victim may receive emergency medical and social services; (B) inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained; (C) inform a victim of public and private programs that are available to provide counseling, treatment, and other support to the victim; and 21 (D) assist a victim in contacting the persons who are responsible for providing the services and relief described in subparagraphs (A), (B), and (C). .... (3) During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of – (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; (B) the arrest of a suspected offender; .... (E) the release or detention status of an offender or suspected offender . . . . The duty to inform a victim of available assistance belongs to the law enforcement authority. The information will be provided according to the victim’s needs. Many of this section’s requirements may be carried out by giving the victim a Miranda-like card with the information printed in a form easily understood by the victim. See Ohio Rev. Code Ann. § 109.42(B)(1)(b) (Anderson Supp. 1991) (law enforcement officer must provide pamphlet explaining specified rights). However, if the victim cannot read, the information may be on an audiotape or may be read to the victim. SECTION 209. INFORMATION CONCERNING SERVICES FOR VICTIMS. As soon as practicable after initial contact between a victim and a [law enforcement agency], the [victim-assistance agency] shall inform the victim of social, medical, financial, legal, and other services available to the victim. Comment This section would require the victim-assistance agency to inform the victim as to the availability of the following services: (1) follow-up support for the victim and members of the victim’s family in order to ensure that the necessary assistance is received; 22 (2) services for child victims and elderly victims directed to their special needs; (3) liaison with and referral to special counseling facilities and community service agencies; (4) transportation and household assistance to promote participation by victims and members of their families in the criminal justice system; (5) assistance in dealing with creditors and credit reporting agencies as the result of financial exigency caused by the crime; (6) translation services and information printed in foreign languages; and (7) child-care services to enable a victim and family members to give testimony and or to attend an interview. This list is not exclusive. The National Organization for Victim Assistance (NOVA) reports there are over 7,000 state and local victim service programs in the United States. Other possible services might be a rape crisis center or grief counseling program. Compare ABA Victim/Witness Guidelines, Guideline 1 (“Victims or their representatives should be provided appropriate information about . . . availability of social and medical services, especially emergency services”). See also 42 U.S.C.A. § 10607(c) (West Supp. 1992) which specifies: A responsible official shall: (A) inform a victim of the place where the victim may receive emergency medical and social services; .... (C) inform a victim of public and private programs that are available to provide counseling, treatment, and other support to the victim; and (D) assist a victim in contacting the persons who are responsible for providing the services and relief described in subparagraphs (A) . . . and (C). The information about the availability of services should be tailored to the needs of the victim. It is imperative that victims receive information on the availability of these services in their communities. 23 SECTION 210. INFORMATION CONCERNING PRETRIAL AND TRIAL MATTERS. After a prosecution is commenced, the [prosecutor], to the extent practicable, shall promptly inform a victim of: (1) relevant criminal justice procedures; (2) the crime with which the defendant has been charged, including an explanation of the elements of crime if necessary to an understanding of the nature of the crime; (3) the file number of the case and the [prosecutor’s] name, office address, and telephone number; and (4) the availability of compensation for victims under this [Act], and the name, street address, and telephone number of the [agency] to contact. Comment Informing victims about pretrial and trial matters and victim compensation is sometimes essential to the victim’s further involvement in the criminal justice process. The prosecutor should assume ultimate responsibility for informing the victim of the status of a case from the time of the initial charging decision to determination of the sentence. This takes the onus of inquiry off the victim and creates a consistent notification program. While many States have piecemeal measures lacking effective enforcement or monitoring, comprehensive victim notice requirements are beginning to be adopted. These notice requirements are the victim’s counterpart to the due process rights of the accused which are strictly enforced by the criminal justice system. See 42 U.S.C.A. § 10606(b)(3) (West Supp. 1992) (crime victim has the right to be notified of court proceedings); id. § 10607(c)(3) (responsible official shall provide victim the earliest possible notice of, inter alia, the filing of charges against a suspected offender and the acceptance of a plea or rendering of a verdict). Compare ABA Victim/Witness Guideline 2 (“Victims and witnesses should be provided information about their role in the criminal justice process, including what they can reasonably expect from the system and what the system expects from them”); id. Guideline 9 (“victims and witnesses who request it should be provided with information as to the status of their case”). Section 205(b) of this Act specifies that unless the victim requests otherwise, the prosecutor must promptly inform the victim of the date, time, and place of each court proceeding the victim is entitled to attend. 24 SECTION 211. INFORMATION CONCERNING SENTENCING. Unless a victim requests otherwise, the [prosecutor], to the extent practicable, shall promptly inform the victim of: (1) the function of a presentence report, the name, street address, and telephone number of the [agency] preparing the report, and the defendant’s right of access to the report; (2) the victim’s right under Section 216 to present a victim-impact statement and the defendant’s right to be present at the sentencing proceeding and to have access to a written victim-impact statement; (3) the date, time, and place of any sentencing proceeding; (4) the date, time, and place of any hearing for reconsideration of a sentence imposed; (5) any sentence imposed and any modification of that sentence; and (6) the right under Section 213 to receive information from [the corrections and mental-health departments]. Comment This section is in line with 42 U.S.C.A. § 10606(b)(3), (7) (West Supp. 1992) (victim has right to be notified of court proceedings and to information about offender’s sentencing and imprisonment) and ABA Victim/Witness Guideline 7 (victim should be allowed to enter standing request for and receive timely notification of case disposition, including sentencing). See ABA Standards for Criminal Justice 18-5.9(a) (3d ed. 1993), which specifies, “The rules of procedure should establish a mechanism for providing notice to victims of offenses of all important steps in the sentencing process. Notices should include information about victims’ rights to participate in sentencing proceedings.” There is no requirement that the victim be tracked down, but only that the prosecutor notify the victim at the victim’s last known address. In order to provide time for the victim to prepare a written statement or to make arrangements to attend the sentencing, the notice must be sent a reasonable number of days in advance of the sentencing hearing. See Office for Victims of Crime, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation II-7 (May 1986). 25 SECTION 212. INFORMATION CONCERNING APPEAL OR POSTCONVICTION REMEDIES. If the defendant appeals or pursues a postconviction remedy, the [attorney general] shall promptly inform the victim of that fact, of the date, time, and place of any hearing, and of the decision. Comment Post-conviction remedies include not just those under a post-conviction relief statute, but proceedings seeking parole or gubernatorial pardon. One agency should be charged with the duty to keep victims informed about the status of appellate and post-conviction proceedings. In many States the appropriate agency would be the division of the attorney general’s office that handles criminal appeals, but a State might find it appropriate to specify some other agency. Compare 42 U.S.C.A. § 10606(b)(3) (West Supp. 1992) (crime victim has the right to be notified of court proceedings). SECTION 213. INFORMATION CONCERNING CONFINEMENT. Upon request of a victim, the [corrections and mental-health departments] shall: (1) promptly inform the victim of the estimated date of the defendant’s release from confinement, if reasonably ascertainable; (2) at least [30 days] before a [parole board] hearing concerning the defendant, inform the victim of the hearing and of the victim’s right to submit to the [parole board] a victim-impact statement under Section 217; (3) inform the victim at least [30 days] before release of the defendant on furlough or to a work-release, half-way house, or [other community program]; and (4) promptly inform the victim of the occurrence of any of the following events concerning the defendant: (i) an escape from a correctional or mental-health facility or community program; (ii) a recapture; (iii) a decision of the [parole board]; (iv) a decision of the [governor] to commute the sentence or to pardon; 26 (v) a release from confinement and any conditions attached to the release; and (vi) the defendant’s death. Comment In the introductory portion of this section, “corrections and mental-health departments” is bracketed so that a State may substitute other appropriate nomenclature. Similarly, the references to “parole board” are bracketed in clause (2) so that a State may add or substitute reference to other proceedings, e.g., executive clemency hearings, that could result in the defendant’s release. This section includes information regarding confinement in a mental-health facility as well as a prison. Clause (1) would require the mental-health department to inform the victim of the estimated date of the defendant’s release from a mentalhealth facility, if reasonably ascertainable; clause (3) would require it to inform the victim at least 30 days before release of the defendant on furlough or to a half-way house or community program; and clause (4) would require it to inform the victim of the defendant’s escape or of the defendant’s release from confinement and any conditions attached to the release. Compare 42 U.S.C.A. § 10606(b)(7) (West Supp. 1992) (crime victim has the right to information about the imprisonment and release of the offender). A study conducted by the South Carolina Department of Corrections indicated that 26 of the 53 agencies which responded to a questionnaire reported development of some kind of notification policy, especially for victims of violent crime. However, as the report states, a majority of agencies which notify victims only do so in the case of escape (and recapture) and release. Only a handful of States were reported to have comprehensive notification policies, including release and recapture, permanent release status, transfer to minimum security institutions and emergency or medical furlough. The States with the most thorough notification policies were deemed to be Iowa, Michigan, South Carolina, Washington, and the U.S. Bureau of Prisons. K.T. Ried, A Profile of Corrections Involvement in Victim Services. Suggestions resulting from this study were as follows: 1. Agencies with notification procedures should make their staffs and the general public aware of such services. This includes: – – public service announcements news releases 27 – contact with victim service providers. 2. Public information staffs should be aware of victim notification policy, and should designate at least one person to handle victims’ questions and complaints. 3. Defense lawyers as well as prosecutors should take care to ensure that the names, addresses, and telephone numbers of victims and witnesses are not available to inmates. This is not just a guideline but an affirmative duty to prevent defendants from obtaining this information. 4. A central contact person should be established for anyone desiring to gain information, to which they are legally entitled. Conditioning notice of the parole hearing on the victim’s request for such notice recognizes the victim’s right not to be notified of parole proceedings as well as the victim’s right to receive notification of and participate in the proceedings. Unsolicited notices received as a result of automatic notice provisions have been considered by some victims to be intrusions into their personal lives. Maureen McLeod, Getting Free, Crim. J., Spring 1989, at 12, 41. SECTION 214. GENERAL REQUIREMENTS FOR INFORMATION. (a) The information required by Sections 208(b) through 213 may be furnished either orally or in writing. (b) A person responsible for furnishing information shall promptly inform the victim of significant changes in the information to be furnished. (c) A person responsible for furnishing information may rely upon the most recent name, address, and telephone number furnished by the victim. Comment Subsection (b) is in line with ABA Victim/Witness Guideline 4, which specifies, “Victims and witnesses should be notified as soon as practicable of scheduling changes which will affect their required attendance at criminal justice proceedings, or be given access to a system providing up-to-date scheduling information.” Subsection (c) is in line with ABA Victim/Witness Guidelines 6, 7, and 8. Those Guidelines, requiring that the victims in serious cases be informed about 28 court proceedings, sentencing, and provisional or final release, each conclude, “It is, however, the responsibility of the victim to provide a current address and telephone number to the appropriate official.” SECTION 215. PRESENTENCE REPORT. In preparing a presentence report, the [probation officer] shall make a reasonable effort to confer with the victim. If the victim is not available or declines to confer, the [probation officer] shall record that information in the report. Comment This is similar to Minn. Stat. Ann. § 609.115(1b), (1c) (Supp. 1992) (officer preparing report shall make reasonable and good faith efforts to contact victim; report shall specify disposition victim deems appropriate and reasons given for victim’s opinions; officer shall attach victim’s written objections, if any, to the proposed disposition). See ABA Standards for Criminal Justice 18-5.4(b)(v) (3d ed. 1993) (presentence report may contain “[i]nformation assessing the physical, psychological, economic, or social effects of the offense on any person, against whom the offense was committed”). If it is not possible to contact the victim, the probation officer must so state in the presentence report. The extent to which the probation officer is obligated to seek out information should be specified in the probation department’s rules and regulations. SECTION 216. VICTIM-IMPACT STATEMENT. (a) Before imposing sentence, the court shall permit the victim to present a victim-impact statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion regarding appropriate sentence. At the victim’s option, the victim may present the statement in writing before the sentencing proceeding, orally under oath at the sentencing proceeding, or both. (b) The [court] shall give copies of all written victim-impact statements to the [prosecutor] and the defendant. (c) The sentencing court shall consider the victim-impact statement along with other factors, but if the victim-impact statement includes new, material factual information upon which the court intends to rely, the court shall adjourn the 29 sentencing proceeding or take other appropriate action to allow the defendant adequate opportunity to respond. Comment Almost all States currently use victim-impact statements in the sentencing process. David L. Roland, Progress in the Victim Reform Movement: No Longer the “Forgotten Victim,” 17 Pepp. L. Rev. 35, 51 (1989). The victim-impact statement is usually a written report submitted to the court by the probation department before sentencing. Id. at 50. Some States allow the victim to make an oral statement to the court at sentencing describing the effect of the crime on the victim and the victim’s opinion concerning the sentence. Id. at 51 n.87. Compare the following provisions of ABA Standards for Criminal Justice (3d ed. 1993): Standard 18-5.10. Victims’ statements prior to sentencing hearings. (a) The rules of procedure should authorize victims to make statemnts concerning the physical, psychological, economic, or social effects of the offense on the victim or the victim’s family. (b) The rules should require offices that prepare presentence reports to receive statements written by victims and to attach the statements to presentence reports. Standard 18-5.11. Victims’ statements at sentencing hearings. (a) The rules of procedure should ensure that victims are permitted to make oral statements at sentencing hearings concerning the physical, psychological, economic, or social effects of the offense on the victim or the victim’s family. (b) The rules should require that, on motion of either party or on the court’s own motion, the sentencing hearing be continued to permit the parties reasonable opportunity to respond to new issues of fact raised by the victim’s statement. Standard 18-5.12. Evidentiary effect of victims’ statements. (a) A victim should be permitted to make a statement prior to or at the sentencing hearing without being put under oath as a witness. (b) Information in a victim’s unsworn statement should not be used as the basis for a finding of fact by the sentencing court. 30 (c) The right of a victim to make an unsworn statement should not preclude a victim being called as a witness at the sentencing hearing. Although allowing the victim to express an opinion concerning the sentence has been questioned, see Donald J. Hall, Victims’ Voices in Criminal Court: The Need for Restraint, 28 Am. Crim. L. Rev. 233, 257, 266 (1991), Rule 614(2) of the Uniform Rules of Criminal Procedure (1987) requires the court to “accord due consideration to the views of the victim.” Rule 614’s Comment specifies, “the court may ascertain the victim’s views in any reasonable manner. Since only ‘due’ consideration is required, the court is not barred from proceeding if the victim is unavailable.” See Ky. Rev. Stat. Ann. § 421.520(2) (Michie 1992) (victim-impact statement may contain “the victim’s recommendation for an appropriate sentence”); Minn. Stat. Ann. § 609.115(1b) (West Supp. 1992) (presentence report shall specify disposition victim deems appropriate and reasons given in support of victim’s opinions and shall have attached victim’s written objections, if any, to the proposed disposition); Ohio Rev. Code Ann. § 2945.07(A)(2) (Anderson Supp. 1991) (court shall permit statement “relative to the victimization and the sentencing”). Cf. Miss. Code Ann. §§ 99-15-113, 99-20-9 (Supp. 1992) (victim shall be asked to comment in writing as to whether defendant should be allowed to enter pretrial intervention program or community service restitution program). The United States Supreme Court recently held that the Eighth Amendment does not bar the admission of victim-impact evidence in capital cases. Payne v. Tennessee, 111 S. Ct. 2597, 2609 (1991). The Court stated that evidence of the specific harm suffered by the victim may properly be presented at the sentencing phase of a capital case. Id. at 2608. This holding overturns the Court’s decision in Booth v. Maryland, 482 U.S. 496 (1987), where the Court held the Eighth Amendment barred the introduction of victim-impact statements in capital cases. The court may require that written statements be postmarked or delivered to the courthouse within a specified number of days before the sentencing. The court may also require a victim who wishes to provide an oral victim-impact statement to make this known several days in advance. See Office for Victims of Crime, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation II-7 (May 1986). In the alternative, the court could permit the victim to make the victimimpact statement on videotape or audiotape. See Cal. Penal Code § 1191.15(a) (West Supp. 1992) (court may permit victim to file written, audiotaped, or videotaped statement in lieu or in addition to personally appearing at sentencing); compare Ill. Ann. Stat. ch. 38, para. 1404(18) (Smith-Hurd Supp. 1991) (victim may make statement by videotape or other electronic means or in person at parole hearing). 31 The prosecutor should notify the court if the victim or members of the victim’s family are present in the courtroom at the sentencing hearing regardless of whether any of these individuals will address the court. SECTION 217. CONSIDERATION OF VICTIM-IMPACT STATEMENT AT [PAROLE HEARING]. (a) Before determining whether to release the defendant [on parole], the [parole board] shall permit a victim to present a written victim-impact statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion regarding whether the defendant should be released [on parole]. [At the victim’s option, the victim may present the statement orally at the [parole hearing].] The [parole board] shall give the defendant a copy of all written victim-impact statements. (b) The [parole board], in deciding whether to release a prisoner [on parole], shall consider among other factors: (1) victim-impact statements presented under subsection (a); and (2) written [or transcribed] victim-impact statements presented to the sentencing court under Section 216. Comment According to Maureen McLeod, Getting Free, Crim. J., Spring 1989, at 12, 42, twenty-nine States permit the victim to present an oral statement to the parole board, with five additional States giving the parole board discretion to permit a victim’s oral statement and one permitting it in first degree murder cases and making it discretionary in other cases. Of these thirty-five States, six always allow the defendant to be present for the oral statement, seven allow the defendant to be present if consistent with the victim’s wishes, one leaves it to the parole board’s discretion, twenty-one do not allow the defendant to be present, and one does not specify whether the defendant may be present. Id. at 43. Thirty-five States permit victims to present written statements to the parole board (with one additional State giving the parole board discretion to permit this). Id. at 42. Of these States, five require disclosure to the defendant of the written statement, eight leave this to the parole board’s discretion, and twenty-three do not require disclosure to the defendant. Id. at 43. 32 Subsection (a)’s bracketed second sentence, allowing the victim to make the victim-impact statement orally at the parole board hearing, is optional. A member of the Utah Board of Pardons has argued as follows against allowing oral statements: Mr. Boyden reasoned that a letter from the victim was sufficient to relay his or her point of view, since the actual determination for release often occurred several years after the crime was committed. He explained that since a victim’s memory fades, or he or she moves, or dies, a letter is a more durable account of the victim’s point of view. Mr. Boyden also pointed out that if [oral victim statements were allowed], a victim who would otherwise not want to come to the parole board hearing might feel that if he or she did not attend, the criminal would be set free. Mark W. May, Comment, Victim’s Rights and the Parole Hearing, 15 J. Contemp. L. 71, 76 (1989). See Ohio Rev. Code Ann. § 2967.12(B)(1) (Anderson Supp. 1991) (“victim . . . may send a written statement relative to the victimization and the pending action to the adult parole authority”). Compare McLeod, supra at 43 (“Although respondents for the most part were noncommittal in their replies, there was general agreement that personal appearances have more of an effect than do written statements”); Ill. Ann. Stat. ch. 38, para. 1404(18) (Smith-Hurd Supp. 1991) (“The victim of the violent crime . . . may submit, in writing, on film, video tape or other electronic means or in the form of a recording or in person at the parole hearing, information for consideration by the Prisoner Review Board”); N.H. Rev. Stat. Ann. § 651-A:11-a (1986) (“The victim . . . shall have the right to appear at the parole hearing . . . personally or by counsel, and to reasonably express his views concerning the offense and the person responsible”). Although it has been reported that only five States require disclosure to the defendant of the victim’s written statement to the parole board, see McLeod, supra, at 43, in the interests of fairness subsection (a)’s last sentence requires the parole board to make available to the defendant a copy of any written victim-impact statement. As standards for victim impact statements evolve, emerging constitutional issues must be addressed. . . . Clearly, a convicted offender has an interest in gaining release as early as possible. In those jurisdictions where parole is deemed to be an inmate right rather than an administratively granted privilege, the denial of early release may constitute a grievous loss of liberty for the purpose of invoking the Fourteenth Amendment due process guarantees. Id. 33 Subsection (b)(2) is to the same effect as, e.g., S.C. Code § 16-3-1550(B) (Law. Co-op. Supp. 1991). The President’s Task Force on Victims of Crime in December of 1982 recommended that legislation be proposed and enacted to open parole hearings to the public. This was based on several premises: 1. Parole boards less “insulated” from public scrutiny would make more responsible decisions; 2. Open parole hearings would increase public confidence in the criminal justice system; 3. Potentially serious implications which parole board decisions present to victims in particular and to the public at large outweigh the secrecy interests of parole applicants. Office for Victims of Crime, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation III-7 (1986). This section applies to decisions made pursuant to parole hearings, not to administrative decisions made because of overcrowding. SECTION 218. DERIVATIVE RIGHTS OF MEMBER OF VICTIM’S FAMILY. If a victim is a minor or is incapacitated, incompetent, or deceased, a member of the victim’s family may exercise the rights of the victim under this [article]. If more than one member of the victim’s family attempts to exercise those rights, the court may designate which of them may exercise those rights. Comment It should be noted that under Section 101(2) above, “member of the victim’s family” includes “an individual designated by the victim or by a court in which the crime is being or could be prosecuted.” This section does not require that the victim’s representative be an adult because in certain circumstances it may be appropriate for a minor of suitable age and discretion to act as the victim’s representative. In a study conducted by the U.S. Department of Justice it was recommended that where a victim has a spouse or other close relative, that person should be able to represent the victim for the purpose of providing a victim-impact statement. 34 Office of Justice Programs, U.S. Department of Justice, Victims of Crime, Proposed Model Legislation II-7 (May 1986). See ABA Standards for Criminal Justice 18-5.9(b) (3d ed. 1993) (“If a victim is dead or unable to participate in sentencing proceedings, victims’ rights should be afforded to the victim’s heirs or guardian”). ARTICLE 3. VICTIMS’ COMPENSATION SECTION 301. ORGANIZATION TO ADMINISTER STATE COMPENSATION PROGRAM. [Description of State organizational structure] [shall] administer a program for the compensation of victims. Comment A State could set forth within Section 301’s brackets the provisions creating its victim-compensation agency or it could leave those provisions elsewhere in its statutes. SECTION 302. POWERS AND DUTIES OF [AGENCY]. (a) The [agency]: (1) shall investigate claims, conduct hearings, and determine all matters relating to claims for compensation; and (2) is entitled to access to investigative reports made by [law enforcement officers], [prosecutors], and [law enforcement agencies], which may be necessary to assist the [agency] in determining eligibility or compensation under this [Article], and to confidential records, such as juvenile records. (b) The [agency] shall keep confidential all of its records and other information, except to the extent necessary to make an award. [(c) The [agency] may apply for, receive, and disburse federal funds.] Comment In order to be eligible for federal crime-victim compensation funds, a State must comply with the requirements of 42 U.S.C.A. § 10602(b) (West Supp. 1992), which specifies that a program is eligible if: 35 (1) such program is operated by a State and offers compensation to victims and survivors of victims of criminal violence, including drunk driving and domestic violence; (2) such program promotes victim cooperation with the reasonable requests of law enforcement authorities; (3) such State certifies that grants received under this section will not be used to supplant State funds otherwise available to provide crime victim compensation; (4) such program, as to compensable crimes occurring within the State, makes compensation awards to victims who are nonresidents of the State on the basis of the same criteria used to make awards to victims who are residents of such State; (5) such program provides compensation to victims of Federal crimes occurring within the State on the same basis that such program provides to victims of State crimes; (6) such program provides compensation to residents of the State who are victims of crimes occurring outside the State if – (A) the crimes would be compensable crimes had they occurred inside that State; and (B) the places the crimes occurred in are States not having eligible crime victim compensation programs; (7) such program does not, except pursuant to rules issued by the program to prevent unjust enrichment of the offender, deny compensation to any victim because of that victim’s familial relationship to the offender, or because of the sharing of a residence by the victim and the offender; and (8) such program provides such other information and assurances related to the purposes of this section as the Attorney General may reasonably require. SECTION 303. WHO MAY APPLY FOR COMPENSATION. (a) The following persons may apply for compensation under this [Article]: 36 (1) an individual who is eligible for compensation under Section 304; and (2) a conservator, attorney in fact, personal representative, next of kin, guardian, or other person authorized to act on behalf of an individual who is eligible for compensation under Section 304. (b) An individual may not authorize a hospital or other health-care provider, or a funeral home or provider of similar services, to apply for compensation. Comment Unfortunately, many children are victims of sexual assault and physical abuse. It is necessary that a parent or guardian act on behalf of the child. In cases where both parents are the perpetrators, a guardian must be appointed to act on behalf of the child. The agency should inform the claimant that all collateral resources such as insurance, restitution, or civil judgments are primary to victim compensation. See Section 316 below. SECTION 304. ELIGIBILITY FOR COMPENSATION. The following are eligible to receive compensation under this [Article]: (1) a victim who has suffered physical, emotional, or psychological injury or impairment as a result of a crime [of violence, including driving while impaired and domestic abuse]; (2) an individual who, as a result of a crime [of violence, including driving while impaired and domestic abuse], has lost care or support from a victim; (3) an individual who has suffered physical, emotional, or psychological injury or impairment as a result of preventing or attempting to prevent the commission of a crime, apprehending or attempting to apprehend a suspected criminal, aiding or attempting to aid a [law enforcement officer] to apprehend or arrest a suspected criminal, or aiding or attempting to aid a victim of a crime; and (4) an individual who has assumed responsibility for, or a deceased victim’s estate that is liable for, the cost of a deceased victim’s medical, ophthalmic, dental, or mental-health care or rehabilitation or a deceased victim’s funeral, burial, 37 crematory, or related expenses, as a result of a crime [of violence, including driving while impaired and domestic abuse]. Comment A State could omit the bracketed language, “of violence, including driving while impaired and domestic abuse,” from clauses (1), (2), and (4). Or it could substitute a list of particular crimes, being sure to include every crime that is a crime of violence as well as drunk driving and domestic abuse and being sure to include federal crimes to the same extent as State crimes to comply with 42 U.S.C.A. § 10602(b)(5),(6) (West Supp. 1992). The bracketed language in clauses (1), (2), and (4) derives from 42 U.S.C.A. § 10602(b)(1) (West Supp. 1992) (program eligible if, inter alia, it “offers compensation to victims and survivors of victims of criminal violence, including drunk driving and domestic violence”). Clause (3) is similar to Wis. Stat. Ann. § 949.03(1) (West 1982 & Supp. 1991). Although clause (1) specifies emotional or psychological as well as physical injury, by requiring the injury to be suffered by a “victim” (defined in Section 101(6) above as “a person against whom a crime has been committed”) clause (1) may not cover “secondary victims” to the extent that some States do. States Vary on Secondary Victim Coverage, Crime Victim Compensation Quarterly, No. 1, 1991, at 6, reports: About half the state compensation programs cover mental health counseling for certain types of individuals who do not suffer direct physical or sexual injury or contact during a crime, but who may be members of the “direct” victim’s family, according to a survey recently taken by the Association. Most states limit “secondary victim” coverage to individuals who are in the same family as the person against whom the crime was committed. But about half the states also said they would pay for mental-health counseling for individuals who are threatened with physical harm during a crime, but who do not sustain physical or sexual injury or contact. Some states extend coverage to individuals who witness other family members being victimized. Only a handful of states said they would consider providing benefits to witnesses of crimes who were not family members of the victim. These states indicated that claims from non-family witnesses would be carefully scrutinized. 38 Some states provide for secondary victim coverage by including such individuals in their statutory definitions of victim or injury, or both. . . . Both Michigan and New York declare that “a surviving spouse, parent, child, or sibling of a victim who died as a direct result of the crime” shall be eligible for awards. New York also stipulates specifically that coverage for out-of-pocket loss shall include the following (N.Y. Exec. Law section 626 [McKinney Supp. 1992]): the cost of counseling for the eligible spouse, parents, guardians, brothers, sisters, or children of a homicide victim, victim of a sex offense [and] the eligible spouse of the victim of any such sex offense who resides with the victim and crime victims suffering from traumatic shock. . . . Out-ofpocket loss shall also include the cost of counseling for a child victim and the parent, guardian, brother, or sister of such victim, pursuant to regulations of the board. Defining bodily injury to include emotional injury is a strategy taken in some states. North Dakota, for example, includes in its definitions the following (N.D. Cent. Code section 65-13-03 [Supp. 1991]): “Bodily injury means any harm which requires medical treatment and results in economic loss and includes pregnancy and nervous shock.” Other states which require “personal injury” define that term broadly to include emotional or mental trauma regardless of physical damage. Texas, for example, has this definition (Tex. Rev. Civ. Stat. Ann. article 8309-1, section 3(10) [West Supp. 1992]: “Personal injury means physical or mental harm to the victim or intervenor.” Arizona defines victim as “a person who suffers physical injury, extreme mental distress or death,” and goes on to define “extreme mental distress” as “a substantial personal disorder of emotional processes, thought or cognition which impairs judgment, behavior or ability to cope with the ordinary demands of life.” (Ariz. [Criminal Justice Commission Rules] R10-4-103 [1985].) Utah defines victim as “a person who suffers personal injury, including injury which may require mental health counseling, suffers death, or is a dependent of a person who suffers death . . . .” Personal injury is defined as follows (Utah Code Ann. section 63-63-2(19) [Supp. 1992]): any personal injury sustained as a result of criminally injurious conduct. In case of a victim of criminally injurious conduct involving a sexual offense, “personal injury” also includes any harm which results in a need for medical treatment, or any psychological or psychiatric counseling, or both. 39 Compare La. Rev. Stat. Ann. § 1802(8)(iv) (West Supp. 1992) (coverage for “[c]ounseling or therapy for any surviving family member of the victim or any person in close relationship to such victim, if such member or person was physically present and directly observed the commission of the crime”). In the case of a minor victim, clause (4)’s reference to “an individual who has assumed responsibility” for specified costs may include a parent. SECTION 305. AWARD OF COMPENSATION. (a) The [agency] may award compensation for any economic loss directly caused by death or physical, emotional, or psychological injury or impairment, including: (1) reasonable expenses related to medical care, including prosthetic or auditory devices; ophthalmic care, including eye glasses; dental care, including orthodontic or other therapeutic devices; mental-health care; and rehabilitation; (2) loss of income; (3) expenses reasonably incurred in obtaining ordinary and necessary services instead of those the victim, if not injured, would have performed, not for income but for the benefit of the victim or a member of the victim’s family; (4) loss of care and support; and (5) reasonable expenses related to funeral and burial or crematory services. (b) An award may be made whether or not a person is charged, indicted, prosecuted, or convicted of a crime giving rise to the claim. (c) An order for payment under Section 402, a [judgment] under Section 403, or a judgment in a civil action does not bar payment of compensation under this [article]. Comment Reasonable expenses of transportation to obtain medical care would be covered under subsection (a)(1). 40 Payment of compensation under this article does not bar a civil remedy available under other law. Section 317(a) below specifies that the victim compensation agency is subrogated to the claimant’s claim for relief. SECTION 306. COMPENSATION FOR CRIME INSIDE OR OUTSIDE STATE. (a) The [agency] may award compensation with respect to a crime committed in this State. (b) The [agency] may award compensation with respect to a crime committed in another State [or in a foreign country] if the victim was a resident of this State when the crime was committed, but any award under this [article] must be reduced by any amount recoverable under any victim-compensation program of the other State [or foreign country]. Comment Under 42 U.S.C.A. § 10602(b) (West Supp. 1992), a state program is eligible for federal crime-victim compensation funds if, inter alia: (4) such program, as to compensable crimes occurring within the State, makes compensation awards to victims who are nonresidents of the State on the basis of the same criteria used to make awards to victims who are residents of such State; (5) such program provides compensation to victims of Federal crimes occurring within the State on the same basis that such program provides to victims of State crimes; (6) such program provides compensation to residents of the State who are victims of crimes occurring outside the State if – (A) the crimes would be compensable crimes had they occurred inside that State; and (B) the places the crimes occurred in are States not having eligible crime victim compensation programs .... 41 SECTION 307. BURDEN OF PROOF. To receive compensation, the claimant must prove by a preponderance of the evidence that the requirements for compensation have been met. Comment This is modeled after section 2 of the Uniform Crime Victims Reparation Act (1973), specifying, “The Board shall award reparations for economic loss arising from criminally injurious conduct if it is satisfied by a preponderance of the evidence that the requirements for reparations have been met.” SECTION 308. LIMIT ON COMPENSATION BECAUSE OF FAILURE TO COOPERATE. The [agency] may reduce or deny compensation to a claimant because the claimant has failed to cooperate with reasonable requests of the [agency] or of a [law enforcement agency]. Comment A state program is eligible for federal crime-victim compensation funds if, inter alia, “such program promotes victim cooperation with the reasonable requests of law enforcement authorities.” 42 U.S.C.A. § 10602(b)(2) (West Supp. 1992). SECTION 309. LIMIT ON COMPENSATION BECAUSE OF CLAIMANT’S CONDUCT. (a) The [agency] may reduce or deny compensation to a claimant, other than a victim, who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. (b) The [agency] may reduce or deny compensation to the extent that an award would substantially and unjustly enrich a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. However, the [agency] may not reduce or deny compensation because of familial relationship to, or the sharing of a household with, an individual accountable for the crime or a crime arising from the same conduct, criminal episode, or plan. (c) The [agency] may reduce or deny compensation to the extent that the victim or claimant engaged in a violation of law, misconduct, or unreasonably dangerous behavior that contributed to the claimant’s loss. 42 Comment Subsection (a) refers to a claimant other than the victim because under Section 101(6), “‘[v]ictim’ . . . does not include a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan.” A provision like subsection (b)’s second sentence is mandated by 42 U.S.C.A. § 10602(b)(7) (West Supp. 1992), which requires that “such program does not, except pursuant to rules issued by the program to prevent unjust enrichment of the offender, deny compensation to any victim because of that victim’s familial relationship to the offender, or because of the sharing of a residence by the victim and the offender.” The “household exclusion” rule in earlier statutes was based upon the fear of fraud or collusion between the offender and family members. To the extent such concerns are realistic, they can be met by less drastic measures. Under subsection (c), compensation otherwise payable to the claimant may be reduced or denied to the extent that the agency determines that the loss is the result of certain contributory conduct of the victim or claimant. Individuals like police officers whose occupations are inherently dangerous remain eligible because their conduct is not “unreasonably” dangerous. Similarly, the agency should avoid reducing or denying compensation for “good Samaritan” conduct. Compare Mich. Comp. Laws Ann. § 18.361(11)(5) (West Supp. 1992) (“The board may disregard . . . the responsibility of the claimant for his or her own injury where the record shows that the injury was attributable to efforts by the claimant to apprehend a person who had committed a crime in his or her presence”). Subsection (c) is similar to a number of current provisions. See Cal. Gov’t Code § 13964(a)(1) (West 1980) (“An application for assistance may be denied, in whole or in part, if . . . [t]he board finds that such denial is appropriate because of the nature of the victim’s involvement in the events leading to the crime or the involvement of the persons whose injury or death gave rise to the application”); Fla. Stat. Ann. § 960.13(6) (West Supp. 1992) (“the division shall determine whether, because of his conduct, the victim of such crime or the intervenor contributed to the infliction of his injury or to his death, and the division shall reduce the amount of the award or reject the claim altogether, in accordance with such determination”); Mich. Comp. Laws Ann. § 18.361(11)(5) (West Supp. 1992) (“The board shall determine whether the claimant contributed to the infliction of his or her injury and shall reduce the amount of the award or reject the claim altogether, in accordance with the determination”); Minn. Stat. Ann. § 611A.54(2) (West 1992) (“Reparations shall be denied or reduced to the extent, if any, that the board deems reasonable because of the contributory misconduct of the claimant or of a victim through whom the claimant claims”); Mont. Code Ann. § 53-9-125(7) (1991) 43 (“Compensation may be denied or reduced if the victim contributed to the infliction of death or injury with respect to which claim is made. Any reduction in benefits under this subsection shall be in proportion to what the division finds to be the victim’s contributions to the infliction of death or injury”); N.C. Gen. Stat. § 15B11(b) (Supp. 1991) (“A claim may be denied and an award of compensation may be reduced upon finding contributory misconduct by the claimant or a victim through whom he claims”); Ohio Rev. Code Ann. § 2743.60(F) (Anderson Supp. 1991) (commissioner “shall deny a claim for an award of reparations if it is determined that there was contributory misconduct by the claimant or the victim”). The agency may establish guidelines for implementation of this section. Several States currently address the issue of contributory conduct by guidelines or rules, in addition to statutes. For example, Florida’s Guideline 10L-4.02 specifies: Contribution is determined by the actions portrayed by the victim at the time of or immediately preceding the crime. While there is no set formula for calculating the percentage of contribution to be assessed, the following factors should serve as a guideline: (1) If it appears that the victim was provoked by the defendant in a manner threatening bodily harm to the victim, and the victim acted in self defense, no contribution should be assessed. (2) If it appears that the victim was provoked by the defendant in a manner where bodily harm to the victim appeared unlikely, and the victim used poor judgment because of intoxication or other drug involvement, a 25% contribution factor should be assessed. (3) If it appears that the defendant was provoked by the victim in a manner where bodily harm appeared unlikely, a 50% contribution factor should be assessed. (4) If the victim is injured as a result of his conduct not being that of a prudent person, a 50% contribution factor should also be assessed. (5) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant appears intentional, a 75% contribution factor should be assessed. (6) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant is unquestionable, a 100% contribution factor shall be assessed and the claim denied. 44 (7) If the victim is not wearing protective equipment as prescribed by law, a 25% contribution factor shall be assessed. This includes helmets, seat belts, etc. (8) If the victim was involved in drugs, as verified by the police report or other official documents, a 100% contribution factor should be assessed and the claim denied. Somewhat similarly, Minn. R. 7505.2900 specifies: The board shall reduce, by a minimum of 25%, any claim submitted by or on behalf of a person who the board finds has engaged in any of the following acts or behavior that contributed to the injury for which the claim is filed: A. used fighting words, obscene or threatening gestures, or other provocation; B. knowingly and willingly been in a vehicle operated by a person who is under the influence of alcohol or a controlled substance; C. consumed alcohol or other mood-altering substances; or D. failed to retreat or withdraw from a situation where an option to do so was readily available. Any of these provisions may be waived in cases of domestic abuse or sexual assault. Finally, Montana Policy & Procedure Manual, which covers contributory conduct at considerable length, provides in part: Contribution results in denial or reduction of benefits. A victim contributed to the infliction of death or injury with respect to which a claim is made if the victim’s actions brought about to any degree the resulting injuries and such injuries were reasonably foreseeable by the victim at the time of his or her contributing actions. .... Contribution concerns the victims illegal or wrongful actions. Contribution is not stupidity, but gross stupidity can be contribution, that is, no reasonable person would have done what the victim did. . . . Some situations are 100% contribution. The victim issues or accepts a challenge to fight. . . . Beware of moral judgments. It is inappropriate to deny 45 benefits on a moral issue and may be unconstitutional and illegal as well, since the decision maker is using an arbitrary standard. SECTION 310. TIME LIMITS. (a) Absent a finding of good cause, compensation may be awarded only if the crime is made known to a [law enforcement officer] or [applicable state agency] within [72 hours] after the crime was committed and a claim is filed within [two years] after the injury, impairment, or death giving rise to the claim. A finding of good cause may be based on lack of knowledge of the crime, disability of a claimant because of a medical or psychological condition, the age and capacity of a claimant, control over a claimant by a person who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan, or other circumstances. (b) Subject to Section[s 311(b) and] 316, the [agency] shall pay a claim within [90] days after application for compensation is made unless the claim is unusually complex, further investigation is needed, or the claimant fails to extend reasonable cooperation. Comment The requirement that the payment be made in a specifically designated period of time is a controversial one. Many state programs are so understaffed as to be unable to meet reasonable processing deadlines. Nonetheless, a definite time for payment is needed. The failure of timely payment is one of the key frustrations of victims. SECTION 311. MONETARY LIMITS ON COMPENSATION. [(a)] Compensation payable to a claimant under a claim arising from the same conduct, criminal episode, or plan may not exceed [$25,000] in the aggregate [and must be reduced by the first [$50] otherwise payable]. [(b) The [agency] may reduce, defer, or partially defer compensation to the extent the [agency] reasonably determines necessary because of [budgetary constraints].] 46 Comment An ongoing trend in state compensation programs has been to raise the maximum amount allowed per claim. The normal range for compensation is now $15,000 to $25,000. Victims’ rights advocates would prefer no limits on medical benefits. This appears to be the case in Washington as well as New York which uses a workers’ compensation model. Several States have two-tiered systems for compensation awards, with higher maximums for death than for injury. See, e.g., Alaska Stat. § 18.67.130 (1991); Conn. Gen. Stat. Ann. § 54-211 (West Supp. 1992); W. Va. Code § 14-2A-14 (Supp. 1992). A State may include the bracketed concluding language of subsection (a) if it desires to provide a deductible. See, e.g., Conn. Gen. Stat. Ann. § 54-211(c) (West Supp. 1992) (“No compensation shall be awarded for the first hundred dollars of injury sustained”). A deductible is preferable to a threshold, as in Minn. Stat. Ann. § 611A.53(2)(f) (West Supp. 1992) (“No reparations shall be awarded to a claimant otherwise eligible if . . . the claim is less than $50”). A deductible would appear to save administrative expense by excluding very small claims. On the other hand, it may be argued that the concept of a “deductible” is a carry-over from the private insurance policy and has little value in the public sphere. In a December 26, 1991 letter to the Reporter, Jay Olson, Senior Program Specialist for the U.S. Department of Justice Office for Victims of Crime, reported: The number of state crime victims compensation programs with deductibles has decreased over the years. In 1984 there were eleven states with deductibles. Eight states had $100 deductibles, one at $200, and two at $250. In 1990 the number had almost been cut in half with a decrease to six. Today five states have a $100 deductible and one at $200. The trend towards eliminating deductibles, by states, may be attributed to the recognition that for low income crime victims, which constitutes a sizable portion of all victims, even a small deductible creates a serious financial hardship. A State may include optional subsection (b) if it desires to authorize reducing, deferring or partially deferring compensation because of budgetary constraints. Any provision requiring an economic or financial hardship on the part of the victim has been rejected. While such a provision has been increasingly attacked 47 and discouraged as reading a welfare concept into a program which is not welfare related, a few programs today still include such a provision. SECTION 312. PROVISIONAL AWARD FOR HARDSHIP. The [agency] may make a provisional award upon a finding of immediate undue hardship and probable eligibility. A provisional award may not exceed [$1,000] and must be deducted from the final award. The claimant shall repay any amount by which a provisional award exceeds a final award. Comment Most current plans have some provision for hardship awards. The normal range for hardship awards is between $500 and $1,000. SECTION 313. NO FEE REQUIRED. The [agency] may not charge an application fee. Comment A State may insert reference to the appropriate agency within the brackets. SECTION 314. INFORMING [PROSECUTOR]. Upon receiving an application, the [agency] shall promptly inform the [prosecutor] responsible for prosecuting the crime giving rise to the claim. Comment This section is based upon Colo. Rev. Stat. § 24-4.1-110 (1988). The principal reason for the notification is to allow the prosecutor to seek restitution (as to which the compensation agency has priority under Section 405(a) below). The notification also enables the prosecutor to inform the compensation agency of reasons known to the prosecutor why the claimant might not be eligible for compensation (for example, contributory conduct under Section 309(c) above). SECTION 315. AUTHORITY TO EXAMINE RECORDS. By making a claim, a claimant authorizes the [agency] to obtain and examine records of the claimant’s physical, emotional, or psychological condition relevant to the claim. 48 Comment Section 302(b) above requires the agency to keep its records and information confidential except to the extent necessary to make an award. SECTION 316. REDUCTION OF COMPENSATION FOR RECOVERY FROM ALTERNATIVE SOURCE. (a) The [agency] may deny, reduce, or defer compensation to the extent the claimant has recovered or could recover from a person responsible or any other public or private alternative source. (b) If the aggregate of compensation, recovery from alternative sources, and restitution received by a claimant for economic loss, after deducting costs, expenses, and attorney’s fees, exceeds the claimant’s economic loss as described in Section 305, the claimant shall refund to the [agency] the excess up to the amount of the award. Comment The victim compensation fund is the coverage of last resort. Accordingly, this section authorizes reduction to the extent the claimant has recovered or could recover for economic loss caused by the crime from any public or private alternative source, including a defendant or a person on behalf of the defendant, any governmental entity, workers’ compensation, wage continuation programs of an employer, prepaid health care benefits, or any kind of insurance. SECTION 317. SUBROGATION. (a) To the extent that compensation is awarded, the [agency] is subrogated to the claimant’s [claim for relief] for economic loss as described in Section 305 against a person responsible and against a third party who is liable for the acts of the person responsible. (b) A claimant shall notify the [agency] within [30 days] after commencing an action. The [agency] may intervene in the claimant’s action. (c) If a claimant does not commence an action within [six months] after compensation is awarded, the [agency] may commence an action for the full amount of the claimant’s damages. If the [agency] collects more for economic loss 49 than that paid under the compensation award, the [agency] shall pay the excess to the claimant. Comment This is similar to a number of current provisions. See, e.g., Alaska Stat. § 18.67.130 (Supp. 1991) (“When an order for payment of compensation for personal injury or death is made under this chapter, the board, upon payment of the amount of the order, is subrogated to the cause of action of the applicant against the person responsible for the injury or death and is entitled to bring an action against the person for the amount of damages sustained by the applicant”); Cal. Gov’t Code § 24-4.1-116 (West 1980) (“The acceptance of an award . . . shall subrogate to the state, to the extent of such award, to any right or right of action accruing to the applicant”); Minn. Stat. Ann. § 611A.61(1) (West Supp. 1992) (“The State shall be subrogated, to the extent of reparations awarded, to all claimant’s rights to recover benefits or advantages for economic loss from a source which is or, if readily available to the victim or claimant would be, a collateral source”). A State’s rules of civil procedure may limit the time within which the agency may intervene in the claimant’s action under subsection (b). In any action by the claimant or the agency, there would have to be credit for any restitution paid by a defendant in a criminal proceeding. See Section 407(b) below. The agency’s action under subsection (c) may be brought in the name of the claimant if the State’s procedures so permit. If the agency recovers, it first deducts attorney fees and costs of collection. Then, to the extent that the recovery is for economic loss, the agency recoups compensation it has paid. Finally, it pays the claimant any excess, plus any part of the recovery that is for the claimant’s noneconomic loss. ARTICLE 4. REPARATION SECTION 401. DETERMINATION OF ECONOMIC LOSS CAUSED BY CRIME. (a) If the court imposes a criminal penalty or disposition, the court may make a determination of economic loss caused to a person by the crime, including: 50 (1) reasonable expenses related to medical care, including prosthetic or auditory devices; ophthalmic care, including eye glasses; dental care, including orthodontic or other therapeutic devices; mental-health care; and rehabilitation; (2) loss of income; (3) expenses reasonably incurred in obtaining ordinary and necessary services instead of those the victim, if not injured, would have performed, not for income but for the benefit of the victim or a member of the victim’s family; (4) loss of care and support; (5) reasonable expenses related to funeral and burial or crematory services; and (6) the cost of replacing or repairing property. (b) The court may make its determination upon an agreement of the defendant or upon a preponderance of evidence from the court’s records, the presentence investigation, affidavits, and such testimony and documentary evidence as the court deems necessary, including a judgment granting relief in a civil action. Comment Subsection (a)’s reference to a criminal penalty or disposition does not include commitment to a mental-health facility following a determination of mental nonresponsibility (insanity). Clauses (1)-(5) of subsection (a) are identical to Section 305(a)’s list of matters for which victim compensation may be awarded. But subsection (a) also sets forth clause (6), and covers all economic loss to any person rather than just economic loss caused by death or physical, emotional, or psychological injury or impairment to an individual as specified in Section 304. Compare ABA Standards for Criminal Justice 18-3.15(c)(i) (3d ed. 1993), which specifies: The [reparation] sanction should be limited to the greater of the benefit to an offender or actual loss to identified persons or entities. Claimants seeking general, exemplary, or punitive damages, or asserting losses that require estimation of consequential damages, such as pain and suffering or lost profits, should be limited to their civil remedies. Subsection (a)(6)’s reference to the cost of replacing property should be construed so as to prevent a defendant from benefiting from the defendant’s own 51 wrong. See Mich. Comp. Laws Ann. § 780.766(4)(b) (Supp. 1992) (if return of property is impossible, impractical, or inadequate, court may order defendant to pay the greater of (i) value on date of damage, loss, or destruction, or (ii) value on date of sentencing). In providing for a finding of the economic loss directly caused to any person by the crime, this section is similar to a number of current provisions. See, e.g., Ariz. Rev. Stat. Ann. § 13-603(C) (1989) (court shall require convicted person to make restitution “in the full amount of the economic loss as determined by the court”); Cal. Gov’t Code § 13967(c) (West Supp. 1992) (“Restitution . . . shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim, or victims, for all determined economic losses incurred as the result of the defendant’s criminal conduct”); Del. Code Ann. tit. 11, § 4204(c)(9) (1987) (“court shall impose as a special condition of the sentence that the defendant make payment of restitution to the victim in such amount as to make the victim whole, insofar as possible for the loss sustained”); Idaho Code § 19-5304(12) (Supp. 1992) (“Every presentence report shall include a full statement of economic loss suffered by the victim”). Regarding subsection (b), compare ABA Standards for Criminal Justice 18-3.15(d) (3d ed. 1993), which specifies: The legislature should enact appropriate provisions to integrate the criminal sanction of restitution or reparation with a victim’s right of civil action against an offender. The legislature should authorize sentencing courts to allow a defense or plea in bar, which might have been raised in a civil proceeding by a victim against an offender, as appropriate and relevant to liability imposed in the criminal proceeding. While it is commonly assumed that many defendants are financially unable to adequately compensate their victims, an extensive study has concluded “relatively few victimizations are so costly as to negate the possibility of restitution dispositions even bearing in mind the very low income level of the defendant.” Alan Harland, Restitution to Victims of Personal and Household Crimes vii, 1-2 (1980). SECTION 402. ORDER FOR PAYMENT AND RETURN OF PROPERTY. (a) The court may determine the defendant’s ability to return property and to pay the remainder of the economic loss determined under Section 401 and may order the defendant to: 52 (1) return property; (2) pay monetary restitution in a lump sum or in installments; and (3) pay up to [one-third] of [prison] earnings. (b) In determining the amount and method of payment, the court shall consider the financial resources and future ability of the defendant to pay. (c) The court may make the order a condition of probation, [parole], work release, or other conditional release. (d) The court may include in its order any amount the defendant in a plea agreement agrees to pay, even if the charge is dismissed under the terms of the plea agreement. (e) The sentencing court has continuing jurisdiction over the defendant for purposes of ordering payment not to exceed the amount determined under Section 401. The sentencing court at any time may modify the order for payment in accordance with the defendant’s ability to pay. Comment The court may order the defendant to pay for the victim’s property under subsection (a)(2) rather than to return it under subsection (a)(1) if the victim has appropriate reasons for not wanting the property returned. Subsections (a) and (b) are similar to Utah Code Ann. § 76-3-201(3)(b) (Supp. 1992), which specifies: In determining whether to order restitution which is complete, partial or nominal the court shall take into account: (i) The financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant; (ii) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; (iii) The rehabilitative effect on the defendant of the payment of restitution and the method of payment; and 53 (iv) Other circumstances which the court determined make restitution inappropriate. Compare ABA Standards for Criminal Justice 18-3.15(a), (c)(ii) (3d ed. 1993) (“For an offense that resulted in a victim’s personal injury or loss of money or property, the legislature should authorize sentencing an individual or organization to make restitution to the victim or to compensate the victim for losses suffered”; “sentencing courts may require offenders to pay the full amount of the sanction forthwith or, taking into account the financial circumstances of an offender, to pay the amount in scheduled installments”). Subsection (b) is also similar to the Model Sentencing and Corrections Act § 3-601(d) (1978), which specifies: In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the offender to pay or perform. The court may provide for payment to the victim up to but not in excess of the pecuniary loss caused by the offense. The defendant is entitled to assert any defense that he could raise in a civil action for the loss sought to be compensated by the restitution order. Subsection (c) recognizes that restitution is often a condition of probation. See ABA Victim/Witness Guideline 12 (“Victims of a crime involving economic loss, loss of earnings, or earning capacity should be able to expect the sentencing body to give priority consideration to restitution as a condition of probation”). Regarding subsection (e), compare ABA Standards for Criminal Justice 18-3.15(e) (3d ed. 1993) (“The legislature should authorize a sentencing court to retain jurisdiction over an offender sentenced to a restitution or reparation sanction until the sanction is satisfied or the sentence is rescinded”). Compare Mich. Comp. Laws Ann. § 780.766 (Supp. 1992), which specifies in part: (12) If not otherwise provided by the court under this subsection, restitution shall be made immediately. However, the court may require that the defendant make restitution under this section within a specified period or in specified installments. The end of the period or the last installment shall not be later than the following: (a) The end of the period of probation, if probation is ordered. 54 (b) Two years after the end of imprisonment or discharge from parole, whichever occurs later if the court does not order probation. (c) Three years after the date of sentencing in any other case. (13) If the defendant is placed on probation or paroled, any restitution ordered under this section shall be a condition of that probation or parole. The court may revoke probation and the parole board may revoke parole if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke probation or parole, the court or parole board shall consider the defendant’s employment status, earning ability, financial resources, and the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay. (14) A defendant who is required to pay restitution and who is not in willful default of the payment of restitution, at any time, may petition the sentencing judge or his or her successor for a cancellation of any unpaid portion of restitution. If it appears to the satisfaction of the court that payment of the amount will impose a manifest hardship on the defendant or his or her immediate family, the court may cancel all or part of the amount due in restitution or modify the method of payment. SECTION 403. [JUDGMENT] AGAINST DEFENDANT. (a) The court [may] [shall] enter a [judgment] against the defendant for the amount determined under Section 402. (b) The [judgment] may be enforced by the State or a beneficiary of the [judgment] in the same manner as a judgment for money in a civil action. (c) If more than one defendant is convicted of the crime for which there is a [judgment] under this section, the defendants are jointly and severally liable for the [judgment] unless the court determines otherwise. (d) A [judgment] under this section may be discharged by a settlement between the defendant and the beneficiary of the [judgment]. 55 Comment The word “judgment” is bracketed because a State may employ different terminology. For example, it might specify “order for judgment” in subsection (a) although specifying “judgment” in subsections (b) and (c). Restitution helps make whole the victim’s crime-related loss. As a criminal court sanction, it does not impair the victim’s right to sue in tort. However, if the victim is adequately reimbursed, the victim may be spared the time and expense of bringing a lawsuit as well as the emotional trauma of enduring a second trial. See 42 U.S.C.A. § 10606(b)(6) (West Supp. 1992) (crime victim has “[t]he right to restitution”). Like other judgments, the restitution judgment is a lien against the defendant’s property and may be recorded in any state or federal office for the recording of liens against real or personal property. Compare ABA Standards for Criminal Justice 18-3.15(f) (3d ed. 1993) (“The legislature should place responsibility for enforcement of orders of restitution or reparation on a designated public official. The legislature should authorize that official to enforce the court order by use of any method available to enforce a civil judgment”); Mich. Comp. Laws Ann. § 780.766(15) (Supp. 1992) (“An order of restitution may be enforced by the prosecuting attorney or a victim or a victim’s estate named in the order to receive the restitution in the same manner as a judgment in a civil action”). SECTION 404. SUPERVISION OF PAYMENT. (a) An order for payment under Section 402 may require payment to the [appropriate state agency], which shall supervise payment and disbursement. (b) The [corrections department] shall schedule payments as ordered by the court under Section 402 from the defendant’s [prison] earnings of up to [one-third] until the order is satisfied. Comment A State may specify in subsection (a) the appropriate agency to supervise restitution payments. See, e.g., Iowa Code Ann. § 910.9 (West Supp. 1992) (“An offender making restitution pursuant to a restitution plan of payment shall make the payment monthly to the clerk of the court of the county from which the offender was sentenced, unless the restitution plan of payment provides otherwise”). 56 SECTION 405. RECIPIENTS OF PAYMENT. (a) The court shall direct that any payment be distributed first [to the [victim compensation fund] to the extent the [fund] has paid compensation and any remainder] to the beneficiary. (b) The court may order the defendant to make payment to an individual who has assumed responsibility for paying a portion of a victim’s economic loss. (c) The court shall determine priority among multiple beneficiaries on the basis of the seriousness of the harm each suffered, their other resources, and other equitable factors. Comment With the bracketed language included, subsection (a) gives the compensation fund priority in order to protect its ability to compensate victims. Compare Iowa Code Ann. § 910.2 (West Supp. 1992) (“victims shall be paid in full before restitution is paid for crime victim assistance reimbursement, court costs, court-appointed attorney’s fees or for the expense of a public defender”); Mich. Comp. Laws Ann. § 780.766(10) (Supp. 1992) (“the court may, in the interest of justice, order restitution to the crime victim’s compensation board or to any individuals, organizations, partnerships, corporations, or governmental entities that have compensated the victim or victim’s estate for such a loss to the extent of the compensation paid. An order of restitution shall require that all restitution to a victim or victim’s estate under the order be made before any restitution to any other person under that order is made”). Regarding subsection (b), see Mich. Comp. Laws Ann. § 780.766(7) (Supp. 1992) (“if the victim or victim’s estate consents, the order of restitution may require that the defendant . . . make restitution to a person designated by the victim or victim’s estate if that person provided services to the victim as a result of the crime”). Because subsection (b) refers only to an individual who has assumed responsibility for paying a portion of a victim’s economic loss, it would not cover an insurance company or anyone who was contractually obligated to pay for the loss. Regarding subsection (c), see Wis. Stat. Ann. § 973.20(7) (West Supp. 1992) (“If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be transferred”). The court has considerable discretion in deciding how to determine priority among multiple beneficiaries. 57 SECTION 406. UNCLAIMED PAYMENTS. A payment under this [article] not claimed within [three] years after the date of payment must be transferred to the [victim-compensation fund]. Comment Being more specific, this section would prevail over the general provisions in section 8 of the Uniform Disposition of Unclaimed Property Act (1966), which specifies, “All intangible personal property held for the owner by any . . . public authority . . . that has remained unclaimed by the owner for more than 7 years is presumed abandoned” and in section 18(a) of that Act requiring abandoned funds to be placed by the state treasurer in the State’s general funds. However, other provisions of that Act may apply, for example, section 11 regarding reports and section 12 regarding notice and publication of lists of abandoned property. See Minn. Stat. Ann. § 345.48 (West Supp. 1992) (amending Uniform Act section 18(a) by adding “except that unclaimed restitution payments held by a court . . . shall be deposited in the crime victim and witness account”). Compare Ala. Code § 15-18115 (Supp. 1992) (restitution unclaimed after 12 months transferred to state general fund); La. Rev. Stat. Ann. § 1568.2 (West Supp. 1992) (after published notice, juvenile court may distribute 90% of unclaimed restitution to elderly victims for whom restitution has been ordered but not paid); N.Y. Crim. Proc. Law § 420.10(7) (McKinney Supp. 1992) (restitution payments unclaimed for one year designated for payment of restitution orders that have remained unsatisfied for the longest period of time). SECTION 407. CIVIL ACTION BY VICTIM. (a) An order for payment under Section 402 or a [judgment] under Section 403 does not bar a remedy available in a civil action under other law. (b) A payment under this [article] must be credited against a money judgment obtained by the beneficiary of the payment in a civil action. (c) A determination under Section 401 and the fact that payment was or was not ordered or made are not admissible in evidence in a civil action and do not affect the merits of the civil action. Comment This section is similar to Utah Code Ann. § 76-3-201.2(1) (Supp. 1992), which specifies: 58 Provisions . . . concerning restitution do not limit or impair the right of a person injured by a defendant’s criminal activities to sue and recover damages from the defendant in a civil action. Evidence that the defendant has paid or been ordered to pay restitution . . . may not be introduced in any civil action arising out of the facts or events which were the basis for the restitution. However, the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in the civil action. Subsection (b) is also similar to Mich. Comp. Laws Ann. § 780.766(11) (Supp. 1992) (“Any amount paid to a victim or victim’s estate under an order of restitution shall be set off against any amount later recovered as compensatory damages by the victim or the victim’s estate in any federal or state civil proceeding”). Compare ABA Standards for Criminal Justice 18-3.15(d) (3d ed. 1993) (“The legislature should enact appropriate provisions to integrate the criminal sanction of restitution or reparation with a victim’s right of civil action against an offender”). ARTICLE 5. MISCELLANEOUS SECTION 501. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This [Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among States enacting it. SECTION 502. SHORT TITLE. This [Act] may be cited as the Uniform Victims of Crime Act. Comment In addition to direct appropriation from the state budget, the following is a summary of the primary methods of funding the additional costs of protecting the rights of victims: (a) FIXED PENALTY ASSESSMENT: A penalty is collected from a convicted offender that is a fixed dollar amount. See, e.g., Ala. Code § 15-23-17(a) (Supp. 1992). 59 (b) VARIABLE PENALTY ASSESSMENT: A judge-imposed assessment is levied in addition to any other penalty imposed. The amount levied is based upon statutory guidelines. See, e.g., Ala. Code § 15-23-17(b) (Supp. 1992). (c) SURCHARGE ON FINES: A common requirement is that when a fine is assessed, the judge assesses an additional amount to be transferred to a special victim fund. See, e.g., Colo. Rev. Stat. Ann. § 24-4.1-119 (1988). (d) INCOME TAX CHECK OFF: Some States also allow taxpayers to designate a part of their income tax refund to be used for victim services. See, e.g., Ky. Rev. Stat. Ann. § 141.440 (Michie Supp. 1991) (provides for designation to child victims trust fund). (e) NOTORIETY FOR PROFIT LAWS: Most States dictate that a portion of all of the profits derived by an offender from the sale of the rights to the crime story for which the offender was convicted are put into a fund for victim services, but these statutes apparently violate the First Amendment. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 112 S. Ct. 501 (1991). (f) MARRIAGE, DIVORCE, BIRTH AND DEATH SURCHARGES: This method adds charges to licenses or certificates for these events to fund victim services. Arizona uses both marriage license and marriage dissolution certificate fees to support domestic violence programs whereas Ohio uses divorce fees, birth certificate fees and death certificate fees to help fund children services. See Ariz. Rev. Stat. §§ 12-284(B)(7), 25-311.01(E) (Supp. 1990); Ohio Rev. Code Ann. § 3109.14 (Anderson 1989 & Supp. 1991). (g) WAGES EARNED BY CONVICTED OFFENDERS: Payments are made into victim service funds by offenders earning salaries in prison work, while on work release or while on parole. See, e.g., Ariz. Rev. Stat. Ann. § 31-466 (Supp. 1990) (offenders assessed probation and parole supervision fees). (h) DRIVER’S LICENSE REINSTATEMENT FEE: A fee is levied for license reinstatements when persons have had their licenses revoked as a result of drunk driving conviction. See, e.g., Ky. Rev. Stat. Ann. § 186.440(12) (Michie Supp. 1990) (fees to fund driver improvement fund). (i) ALCOHOL TAXES: Tax on alcoholic beverages used to fund victim services. See, e.g., Ind. Code Ann. § 16-13-6.1-3.5 (West 1991) (excise taxes deposited in addiction services fund). 60 (j) FORFEITED ASSETS: Some States contribute forfeited assets from criminal activity to victim service funds. See, e.g., Nev. Rev. Stat. § 179.118(d) (1991). (k) OTHER FUNDING MECHANISMS: States could add a surcharge to court case filing fees or allocate a portion of court costs paid to victim services programs. In addition, States could designate all or a portion of bail forfeitures to be used for victim services. SECTION 503. SEVERABILITY CLAUSE. If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable. SECTION 504. EFFECTIVE DATE. This [Act] takes effect _________________________. SECTION 505. REPEALS. The following acts and parts of acts are repealed: (1) (2) (3) Comment In addition to repealing inconsistent statutes, a State may desire to amend its version of section 18(a) of the Uniform Disposition of Unclaimed Property Act (1966) (abandoned funds to be placed in State’s general fund) by adding “but payments of monetary restitution not claimed within three years after the date of payment must be transferred to the victim-compensation fund.” See Section 406 above; Minn. Stat. Ann. § 345.48 (West Supp. 1992). 61