Novemoer 10, 1971 CONGRESSIONAL RECORD-SENA11! s 17999
JUSTICE FOR THE VICTIM OF
Mr. MANSFIELD. Mr. President, I
have long advocated the concept of estAWll8hing
at the Federal level a. program
·designed to compensate the innocent vic-
Mike Mansfield Papers, Series 21, Box 47, Folder 73, Mansfield Library, University of Montana
s 18000 CONGRESSIONAL RECORD-SENATE November 10, 1971
tims of crime. My bill, S. 750, is now
pending before the Committee on the
Judiciary, and before too long I hope to
see action completed there so that the ,
Senate itself can face this most important
Earlier this year I was honored by the
request of the Law Review at the University
of Houston School of Law to prepare
an article on this subject and to set
forth my views on victim compensation.
I did so; and the article, entitled "Justice
for the Victims of Crime," has
been published in the Houston Law Review,
volume IX, No. I, dated September
1971. I read from the concluding remarks
the following statement:
In tbe la.st one hundred years, tbe criminal
and the State have domlne.ted tbe arena o1
crime and punishment to the Injurious exclusion
of the vlcUm. To revive at this time
the propos.ltlon that citizens are entitled to
protection and such protection falling, that
citizens at least are entitled to be compensated
tor tbe J~es they sutrer !rom violent
crlmillAI action, can only serve to strengthen
the social fiber of our Ne.tlon.
It is time, Mr. President, that the attention
of the Nation be focused on the
innocent victim of crime, on his loss and
suffering. It is to him that my bUI, S.
750, is addressed.
Mr. President, I ask unanimous consent
that the article be printed in the
There being no objection, the article
wa.s ord~red to be printed in the RECORD, .
as follows: .
JUSTICE FOR THE VIC't'IMB OF CKl:ME
(By Senator Mnu MANsFIELD•)
If the brigand has not been caught, the
man who ha.! been despoiled. sh4U recount
before God. what he has lest, and the city
ana governor in whose lana and district the
brigandage took place shall render back to
him whatever of his was Lost.
If it was a life [that was lost], the citll
and the governor shall pay one mina of silver
to hl.s people.l
Just as violence In our society has continued
!rom times past so, too, does the
concept of compensating victims ot violence
find Ita roots planted fumiy In the early
history of manktnd. It Is out ot a deep personal
concern tor violence and Ita effecta
upon our soctety today that I seek to revive
the ooncept of victim compensation. In doing
so, I ba.ve not approe.ched th18 18rue as a.
lawyer or as • stUdent or the law. I ba.ve endeavored
to view the matter as one who Is
concerned tba.t reoen.t efforts to stimulate
new approaches tor stemming, and even reversl.
ng, the ever-rta.lng rate of crtme and
viol~nce have focused too little attention
upon the Innocent victims. It Is to these victims
th&t my compensation leglsle.tlon, Senate
bill 760, Js d1rected.1
To be sure, soctetles he.ve alwn.ys suft'ered
the ravages of violent crimes. The ea.rllest
reported was Abel's murder at the bands of
his brother, Cain. Chronicled dally by the
press are crtmee or the most heinous nature.
In the days of old, punishment was meted
out under the dubious rationale a! "an eye
for an eye, a. tooth for a. tooth." Presently,
our system of justice seems to tr&nale.te thta
form of retribution Into the consistent abstraction
of the sta.te versus the crlm1nal,
which often leaves the victim unappeased,
the government bogged down tn court and
the cr1m1n.a.l more expert at h1a trade. At
one t.tme, retrtbutllon was the taabion and
strength-'the rule. As soc:le.J order became
Footnotes art; end of article.
more sophisticated, retribution yielded to the
action or the group, but the concept of o;atlsfactlon
for Insult or Injury remained based
By the Jaws of our society today, the accused
Is prosecuted for his crime, and U
found gullty, punished by the state. Tbe victim,
whose cooperation Is often essentle.l to
the prooecutlon process, Is precluded from
Inflicting any type of physlcil.l revenge. Tbat
Is at It should be. But his sole recourse withIn
our federal jur1sd1ctlon Is to seek damages
by Instituting clv11 action against the gullty
criminal. At best, this has been an lnade~
quate remedy considering the financial condition
of mdst perpetrators or violent crl.me.
In fe.ct, a. recent survey of victims of violent
crimes indicated e. be.re 1.8 percc"lt or the
victims ever co!lect anything from their attackers.
Yet 74.2 percent of the victims experience
eoonomtc loss, not to menUon the
physical damage and sutrering involved.•
Tbe economic loos and physical pain which
a.coompe.nles crtme Is no small matter. Indeed,
the President's Commission on the
Causes and Prevention of VIolence documents
tbe alarming ln.cre&Be In tbe rate of
violent crime. Between 1958 and 1987, for example,
violent crimes Increased tor: all ages
by 65.7 percent. An even more alarming aspect
or these statistics shows that, when the
arrest rates for violent crimes are broken
down Into age groups, tbere are Increases of
222.0 percent among the 10-14 yee.r-olds
and 102.5 percent among the 15-17 yearolds.
With the crtme rate continuing to rise tn
such Immense proportions, the vociferous cry
for Jaw and order bas not gone unheeded at
the !edere.l level. The United States Senate In
the last Congrees passed at J.ee.st 18 major
crime proposals.• In doing 110, It Increased
su.b<;ta.ntlally the assistance to 100&1 Jaw enforcement
e.genol.es. Thl.s assistance helped
provide more training for policemen and more
and better pollee equipment. In abort, It afforded
to the pollee some badly needed tools
In their fight age.tnst crime and violence.
However, In spite of all Its e!Iorts to provide
a. sa.ter society, Congress !a.lled miserably
to consider those citizens Injured by
Focusing more attention on the crlmillAI
and Jess on his victim Is an Inequity of
modern society. Tbe origin of this phenomenon
Is Interesting and telling of our English
heritage. In early Saxon England tbere was
a. two-fold process whereby a criminal was
required to compensate his victim and pay a
fine to the king as well. Such a system seems
to have been a. we!l-ba.Ja.nced recognition of
crime as affecting both society generally and
the victim individually. Gradually e. system.
was substituted which put the defendant's
llge totally at the lOng's mercy and removed
the victim's right to reparation.
Wltbout entering In~ a detailed recitation
ot judicial history, th1B brief explanation Ill
offered to demonstrate that where once the
lndi vidual ·vlctl.n::l was the primary force behind
the process or redresalng private wrongs,
he ultlma.tely yielded his responsiblllty to
the state. Tbe state In the form of the king
and his mtnl9ters willingly accepted this role
deciding, apparently, that doing so llmited
aots of revenge. This permitted e. more effective
suppression of unplanned or nonstate
violence and social strue. Secondly. the
state's expanded authority offered wider protection.
Whatever the reason, however, tbe modern
result haB established tbe comblnatd.on of
state versus criminal, to ~he v1rtual exclusion
of the vlcUm. Such e. policy abrogates any
social contra.ot that 1s thought to exist between
the <;ltlzen and his society. Tbe average
citizen pays his taxes and obeys the laws
Imposed by soolety. In return be expects,
some would argue on a. contractual basis, to
be protected by those laws !rom 1l!ege.J a.ct8
which result In injury and suffering to hlm.
In short, II society falls tn Its efforts to provide
basic protection, then the soclal contract
has been breached; the citizen has sutrered.
To him there is no particular non-punishable
recourse a-vailable otber, perhaps. than
overt apathy. Reflective of this growing
apathy has been the significant Increase tn
the number of cases where victims refuse to
become Involved; not witnesses. not to assist
the prosecution, !lot tn preventing the crime.
not in assisting a pollee otncer. It Bbould be
added that this reaction Is not limited to the
Immediate victim but is extended to witnesses,
to the victim's relatives, to bls friends,
and neighbors. Tbls 1B not surprising, U you
recognize the !act-that Jess than 2 percent of
the victim population ever received any type
Overt apathy or non-participation by citizens
In regulatory :tunctlons of society may
become a. critical problem during tbe last
quarter of the :lOth century. Wberea.s otlr
technology has grown, our Interactions ba.ve
1n.cree.sed, and our communications have
expanded, an Increased need for recognized
social responsibility by aU citizens has become
a. necessity. In the pa.st Horace Greeley's
admonition to the reckless and Irresponsible
to go West wss an attempt at alleviating
social tensions. But today, citizens must
recognize that through their plain apathy,
they commit crimes agslnst society. Tbe
elected representatives need to become cognizant
of the need tor legislation that would
encourage, in !a:ct reward, acts the.~ were
socially responsible. Social con tracts, a.s has
been the case witb most contracts, are much
more oompllca.ted today than at any time In
the past; but U tboae contracts are to be
weakened and violence Is to spread at the rate
It Is speeding presently, It Is my strong feelIng
the.t our society wlll help bring about Its
own downfall. As Thomas Babington Macauley
Interred In a Jetter to an Am.erican
friend during the 19th century, tbe United
States will not fall by external Invasion, but
instead wlll fall by Internal dissent, division,
It has been said tbe.t the Institutions of
justice have become more concerned with the
protection of the rlgbta of the crtmlnal than
with tbe need !or Jaw and order In society.
To e.n extent, I would agree. But I feel the
major emphasis Is misplaced. To me, a. major
Jla.b111ty within the present .11ystem o! crlm-
1DA1 justice Ls Its utter !allure to consider the
Innocent victl.m. This Is the whole basis for
my Interest tn reviving the concept of victim
compensation. Though employed tn tbe past
to Inhibit the practice or revenge, I believe
the concept Is equally a.ppllca.ble In tode.y's
society where the citizen has come to rely so
greatly upon safety and pollee facUlties, as
furnished at the local, state, and federal
Another aspect o1 tbe problem concerns the
government's task o1 reba.blllte.tlng criminals.
Tbougb tbese efforts he.ve been tote.Jly lna.de_
quate, It Is government's ta.Uure to succeed
In this endeavor which certainly has a.ggra.
va.ted, U not generated, the whole problem
of recidivism. How mucb violent crime, it
should be ssked, 1B committed at the hands
of the recidivist who has been released upon
society from a. penal Institution that served
only to mold him Into a. more hardened and
bitter cr1m1nal tbe.n be was when first Incarcerated?
His Innocent victim has been doubly
cheated by society. Not only has society !alled
to protect him with sutnclent pollee and
sa.tety facilities, but its penal Institutions
ba.ve actually created a more serious threat to
law and order by serving as gra.dua.te schools
As a nie.tter of public policy, social compensation
programs are not revolutionary
notions. Indeed, there 1B great si'Dlle.rtty tn
ratlollAle and origin between the notion of
compensating workers, assuring them or e.
·reasonably sate place In which to work, and
compensating victims or crtme, assuring
them e. reasonably sate society In which to
Mike Mansfield Papers, Series 21, Box 47, Folder 73, Mansfield Library, University of Montana
CONGRESSIONAL RECORD-SENATE 818001
November 10, 1971
live. Juat aa npld lndustz!6J.lz&tlon Increased
hazards b the worker, eo dld the rapid
urb&nlzation of the 2otb century create social
conditions wblcb set the stage for the
subeta.ntlal 1ncreaae ln recent crlme statistics.
FUrthermore, just as the worker was
frustrated ln his attempts to recover d&magea,
so, too, has the victlm of crtme today
been frustrated. In many cases the offender
Individual crtmlnal jurladictiOD& At tbla
stage the provisions of S. 750 are by no
mean's final. Indeed, at an appropriate tlme
during the leglBiatlve proce&&, many of 1ts
features wW undergo close examlnatlon, and
undoubtedly, changes wW be made. Th1s 1s
an essential purpose of the legislative proc-
1n your own country, by your own lnatltu•
1s not apprehended. When be Is, he Is often
destitute. Further compllcatlng this latter
ditllculty 1s the fact that present penal
methods deprive the olfender of hla abUlty
to make restitution, as he 1s deprived of any
means of obte.lnlng a gainful llvellhood.
Along with the worker compensation concept,
other steps have been taken In the past
30 years whlcb manifest society's abandonment
of latssez falre attitudes when facing
matters of collective community need. Social
security, medicare, aid to dependent
cbUdren, a.aatatance for the handicapped, the
aged and the bllnd, ldeu of no-fault Insurance,
and national health Insurance all reflect
a recognition of collective societal reaponslblllty.
Ful1illlng thla responslblllty
with repnl to victlma of crime 1s no euy
task. Senate bW 750 attempts to face the
problem. If ad.opted, It would by no means
represent the 11.rat such step taken within
today's famlly of nations. Wlthln the last
ten years, New Zealand, England, and some
provinces In Cr.nad& and Australia have all
enacted governmental programs of compens
... tton for lnnooent victlms of violent crimes.
In addition, our States of California, HawaU,
Nevad&, Maryland, Massacbusetts, and New
York all have enacted some type of ocxnpensation
program. My colleague, the former
Senatt>r from the State of Texas, Ralph Yarborough,
introduced a crime compensation
bW ln both the 89th and 9oth Congresses.
The main features of my bW C'lliTently
before the Senate deserve BOl;lle explanation.
P1rllt of all, the bW· would create a threeman
VIolent Crlme Compensation CommlaBion.
The Commlsalon would compensate Innocent
vlctlms for Injury or death resulting
from any one of "18 otfell.l88. The 18 olfenses
could be grouped generally under the headIngs
of hom!clde, uaault, and sexual offenses,
all occurring within the federal
crlmlnal jurladlctlon. There would be a
maximum llm1t of •25,000 for each award.
It ·would be the Commtsslon's duty to examine
the evldenoe presented, both to determine
what level of compensation should
be granted and whether In fact the person
malllnc the claim 1s an Innocent victim.
W~th eome limitation, the CommlsBion
could order the payment of compensation on
behalf of the Injured victim to the person responsible
for bla malntenance, to bla dependents
or cloeely related survivors. The
authority of the CommtsBion to award compenaatlon
would not be dependent on prosecution
or conviotlon of the accused for the offense
gl~ rlae to the lnjury.
All far as what types of loases are covered,
the proposal would provide compensation for
expenses Incurred as a result of the victim's
lnjury or death, for the 1088 of his
earning power, for pain and sulferlng and
for any other pecuniary losses wblch the
Commtsslon deems reasonable. Compensation
would be dented where the vlctlm was
the time of the injury or death, living with
the offender or ln any case where the commlaalon
tlnds that unjust enrichment would
reault to or on behalf of the offender. Dec1alona
and orders of the CommlaBion would
be reviewed by the appropriate Courts of
Appeals. A most Important provtslon would
allow the Commtsalon, where p088lble, to
recover from a convicted assauant the
amount of any awards granted as a result of
essRecently, President Nlxon recommended a
special compensation program for survivors
of pollcemen kUled In the line of duty. It
would seem appropriate that such a program
be considered along with, and as a
part of, s. 750. There are additional aspects
of victim compensation that deserve greater
examination and clarification. For example,
the whole matter of the projected costs for
Implementing crime compensation on the
federal level must be examined. The p0881·
bUlty of tying rehabilitation and restitution
to compensation also has been ratsed. That,
too should be explored.
~deed, many questions need to be clarified
before a federal program allowing the
compensation of Innocent victims of violent
crtmes can be established. The objective In
Introducing thla proposal Is to begln the
process. Before tbls Congress adjourn& ln
1972 It 1s my hope that the process will be
comPlemented, and there will be established
on the federal level the principle that violent
crime Is a three-party a1falr wbloh Includes
the victim, the criJnlnal and the state. In the
last 100 years the crlmlnal and the state have
dominated the arena of crime and -punlllh·
ment to the Injurious exclusion of the vlctlm.
To revive at thla time the proposition
that citizens are entitled to protection, and
such protection falling, that citizens at least
are entitled to be compensated for the losses
they sulfer from violent criminal action can
only serve to strengthen the social ftbre of
•u.s. Senator (D., Montana).
• The Code of Hammurabl, § § 23-24, cited.
In C. JOHNS, THE OLDEST CODE OJ' LAWS IN
THE WOilLD 6-7 (1903) .
•s. 750, 92d Cong., 1st Sess. (1971). A
similar blll was Introduced on December 10,
1970. s. 4576, 9lst Cong., 2d Sess. (1970).
• Hearings on s. 2936 Before the Senate
Committee on the Di.&trict of Columbia, 9lst
Cong., 1st .sess., at 127 (1969), quoting A.
LINDEN, THz RI:PORT OJ' THE 0sGOODJ: HALL
STuDY ON COKPENSATION J'OB VICTUUI or
CJUMI: 11 (1968.)
• Crime bills passed by the 9lst Congress
Include: Omnibus Crime Control Act of 1970,
Pub. L . No. 91--644, 84 Stat. 1880 (Jan. :r.
1971); Comprehensive Drug Abuse and Control
Act of 1970, Pub. L . No. 91-513, 84 Stat.
1236 (Oct. 27, 1970); Organized Crime Control
Act of 19'/0, Pub. L. No. 91-452, 84 stat.
922 (Oct. 15, 1970); Criminal Justice Act of
1970, Pub. L. No. 91-447, 84 Stat. 916 (Oct.
14, 1970); Postal Reorganization Act of 1970,
Pub. L. No. 91-876, 84 Stat. 719 (Aug. 12,
1970); Dtstrlct of Columbia Court Reform
and Crlmlnal Procedure Act of 1970, Pub. L.
No. 91-358, 84 Stat. 473 (July 29, 1970); Omnibus
Judgeship BUl of 1970, Pub. L. No. 91-
272, 84 Stat. 294 (June 2, 1970). .
• Actually, the Senate passed a victim oompense.
t.)on program for the District of Columbia,
Including It as a part of the District of
Columbia Court Reform"Bill. 116 CONG. REC.
S. 4387 (daily ed. March 24, 1970). The provision
was dropped by the Conference committee
on the matter and ntlver bec&lne law.
• Letter from Thomas B. Me.co.uley to Henry
S. Randall, May 3, 1857, on file In the Llbnry
of Congreas, Macauley sa.td:
There Ill alllo provided a grant program
wblch would encourage Statee to establlah
crime compenaatlon systems witbln thelr
"Your republic will be as tearfully plundered
11-lld lald waste by barbarla.ns 1n the
2oth century as the Roman Empire was ln
the Plfth, with tbla dilference: that the
Huns and Vandals who ravaged the Roman
Empire came from without and your Huns
and Vandals will have been engendered with·
Mike Mansfield Papers, Series 21, Box 47, Folder 73, Mansfield Library, University of Montana
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