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Section 4112.

SECTION 4111. ESTABLISHMENT OF A VICTIM COMPENSATION FUND

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Section 4111 creates in the United States Treasury a Criminal Victim Compensation Fund consisting of all criminal fines collected by the United States courts or by the Attorney General through the new fine collection process, dividends from the Prison Industries Fund,5 money reimbursed to the Criminal Victim Compensation Fund by a victim or dependent who receives money damages from another source, funds collected from Federal offenders pursuant to suits for subrogation under section 4114, and contributions to the Fund. The Committee believes that the moneys from these sources will be more than adequate to cover orders for payment of compensation under this subchapter and that no appropriations will be needed. This is especially true because of the higher authorized fines available under chapter 22 and because of the improved procedures for collecting unpaid criminal fines provided in subchapter B of chapter 38.

SECTION 4112. CLAIM FOR COMPENSATION

Section 4112(a) creates a civil action against the United States for compensation to the victims or surviving dependents of a victim of a Federal offense, or an attempt to commit a Federal offense, if there is Federal jurisdiction over the offense under chapter 16 (Offenses Against the Person).

A court proceeding, rather than an administrative Board proceeding as provided in S. 300 and S. 800, is provided in order to facilitate greater accessibility by the public to the program for compensation. Upon reconsidering the provisions of S. 300 and S. 800, the Committee determined that a small administrative Board would find it difficu1t to engage in the necessary travel to provide hearings all over the country, and that it would place a heavy financial burden on persons already suffering financial difficulty to require them to come to Washington if they wanted a hearing on the claim. This problem is aggravated by the fact that appeals from decisions of the Board would be in the United States Court of Appeals for the District of Columbia Circuit. In contrast, the United States district courts are easily accessible, and if a victim or other claimant wishes to appeal a decision, he would do so to the United States Court of Appeals for his circuit rather than being required to come to Washington for an appeal.

The Committee does not believe that this program will place an undue burden on the courts. Most of the claims filed under this section will raise primarily questions as to the amount of the damages recoverable, and the courts could refer many of the claims to the United States magistrates serving as masters under Rule 52 of the Federal Rules of Civil Procedure.

Claims could be for any offense, or attempted offense, over which there is Federal jurisdiction under chapter 16 (Offenses Against the Person). That chapter covers all Federal offenses which could result in personal injury or death, either directly or by providing jurisdiction for offenses against the person which occur during the com

18 U.S.C. 3812 (b).

5 28 U.S.C. 584.

18 U.S.C. 4113(e) (2).

mission of other specified Federal offenses. More Federal offenses will be covered under this subchapter because of a broader range of applicable Federal jurisdiction than is true of S. 300 and S. 800, which contain lists of crimes covered and limit the lists to those crimes committed in the special maritime and territorial jursidiction, the District of Columbia, and the Indian country. In reconsidering this jurisdiction, the Committee has concluded that it was preferable to give similar treatment to all victims of a particular offense over which there was Federal jurisdiction rather than to give compensation to a victim only if the offense were committed in a particular segment of the Federal jurisdiction over the offense.

Section 4112 (b) provides that a hearing on the civil action must be public unless the court finds that the hearing or a portion of the hearing should, in the interest of justice, be closed to the public. For example, the court could order the hearing closed if there had not yet been a trial in the case in order to avoid problems of pretrial publicity. If the investigation of the offense were not completed, the court might also wish to conduct the hearing in private in order to avoid interfering with the investigation. The court might also wish to close part of a hearing to the public in the interest of protecting the privacy of a claimant, such as the taking of testimony from a young rape victim.

Section 4112(c) (1) provides that if personal injury results from an offense, the victim is entitled to compensation, under the guidelines of section 4113, and that there is a right of survivorship to his estate for the personal injury claim if the victim dies, not necessarily as a result of the offense, before the case has been concluded. Section 4112 (c) (2) provides for compensation, under the guidelines of section 4113, to a surviving dependent of a victim who died as a result of the offense. It is possible under certain factual situations that compensation will be awarded under both paragraphs (1) and (2) if, for example, an offense has resulted in prolonged hospitalization and ultimately has resulted in death. If death resulted from a cause other than the offense, then the estate could receive compensation under appropriate circumstances under paragraph (1), but the dependents would not be entitled to compensation under paragraph (2). The reason for permitting a right of survivorship to the claim even if the death did not result from the offense, is to assure that the family of the victim does not suffer undue financial stress from such expenses as hospitalization of the victim as a result of the offense.

Section 4112(d) provides that the court may order compensation, subject to the limitations of section 4113, in an amount of the actual pecuniary loss suffered by the claimant, and anticipated earnings of the victim if personal injury results from the offense or anticipated support to the surviving dependents if death resulted, if the anticinated loss of earnings or support continued for a period of ninety days or more. The payment of the actual pecuniary loss would be in a lump sum. The payments for loss of anticipated earnings or antic

7 As a result of the change made by S. 1, as reported, compensation for offenses committed in the District of Columbia will be limited under this bill to compensation for offenses in the Federal Criminal Code, thus leaving the election of compensation for other offenses to legislation for the District of Columbia alone. This is consistent with the coverage of Federal jurisdiction provided elsewhere in the Code. Similarly, the subchapter has not carried forward the provisions for grants for State compensation programs.

Section 4113.

ipated support could be made periodically during the period during which the loss continued, for a maximum period of ten years. If the victim died as a result of causes other than the offense, his estate would still be entitled to loss of anticipated earnings for the time the victim would have been unable to work full time as a result of the offense, subject to the provisions of section 4113. Under section 4112 (d) (2), the court could hold a payment of a claim in abeyance until the claimant actually suffered financial stress. Thus, if there has been. personal injury from an offense, but it is uncertain whether it is sufficiently serious to ultimately cause financial stress, the judge can order payment held in abeyance until such stress occurs.

Section 4112(e) permits the court to grant emergency compensation, up to $1500, pending final action on a claim if the claim is one for which payment will probably be ordered. The amount of emergency compensation would be deducted from a final payment, and, if the amount of the emergency payment exceeds the amount finally awarded, the claimant may be ordered to reimburse the fund.

Section 4112(f) permits reconsideration of a claim by the court at any time and modification or rescission of orders based upon changes in the circumstances of the claimant.

Section 4112(g) bars any action under this subchapter for injury or death unintentionally caused by vehicular accidents in the course of an offense, unless the vehicle was an implement used in the commission of an offense to which the subchapter applies.

Section 4112 (h) provides that if a claim would otherwise be allowed, it will not be barred if the person who committed the offense could not legally be convicted of the offense because of immaturity, incompetency, insanity, intoxication, or otherwise. Thus, if there is Federal jurisdiction over the offense, a claim may be allowed even if no person is actually prosecuted for the offense.

Section 4112(i) provides that this subchapter does not affect the right of a victim or his survivors to bring a civil action for damages against a person for the injury or death.

Section 4112 (j) prohibits execution or attachment against an order for payment entered under this subchapter.

SECTION 4113. LIMITATION ON COMPENSATION

Section 4113 (a) provides that a victim or his surviving dependents must satisfy four prerequisites in order to obtain an order for payment under this subchapter. The first requirement is intended to encourage cooperation with law enforcement officials. Thus, this section requires that the offense giving rise to the claim must be reported to a law enforcement officer within seventy-two hours after its occurrence unless the court finds the failure to do so to be justified by good cause. The second requirement is that the claim be initiated within one year after the offense occurred. It is necessary to set such a time limit in order to avoid stale claims, and the period is long enough to give claimants time to assess the degree of financial stress which may result from the offense. In those rare cases where this is not easily ascertainable, the subchapter contains sufficient flexibility to permit the filing of a claim where it is believed financial stress will result in the future with payments held in abeyance under the provisions of section 4112(d) (2)

Section 4114.

until such time as they are necessary. This time limitation may, of course, also be waived if the court finds the failure to comply to be justified by good cause. The third and fourth prerequisites focus on the actual financial need of the claimant. In order to discourage frivolous claims and to avoid multiple small claims, actions for less than $100 or a week's earnings or support, whichever is less, are not permitted. The court must also find that the offense giving rise to the claim was the proximate cause of the pecuniary losses claimed, and finally that the claimant will suffer financial stress as a result of those losses. The determination of "financial stress” will be in accordance with the definition of that term included in section 4115.

Section 4113 (b) limits awards to a maximum of $50,000 for a victim of an offense giving rise to a claim. Thus, if several dependents were claiming losses for the death of a single victim, the total amount of compensation for the aggregate claims could not exceed $50,000. The total amount ordered to be paid under claims made for the same victim of an offense would not necessarily be equal since the court would have to consider the actual financial situation of each claimant and split the award accordingly. Of course, if a person were the victim of more than one offense, he would be entitled to file a civil action for each of them.

Two subsections set forth in section 4113 delineate the lack of personal culpability and the cooperation with law enforcement authorities necessary to recover an award under this subchapter. Subsection. (c) permits the court to reduce the amount or deny compensation where the victim or claimant shared responsibility for the offense. Subsection (d) authorizes the court to reduce, deny, or withdraw an award because of the victim's or claimant's failure to cooperate substantially with law enforcement agencies.

Section 4113 (e) (1) provides that damages recovered from sources other than a civil action under this subchapter will be considered to, first, offset losses that do not qualify as pecuniary losses, and then, second, to offset pecuniary losses. For example, if the victim of an offense recovered from an insurance claim for the personal injury, and the payment included funds for pain and suffering (not included in the definition of "pecuniary loss" in section 4115), the payment would be offset against the loss for pain and suffering before it would be offset against the losses covered within the definition of "pecuniary loss." If damages are paid to the claimant from a source other than the Criminal Victim Compensation Fund after the claimant has received payment under this subchapter, he will be ordered under section 4113 (e) (2) to reimburse the Fund in the amount which would have been offset against his compensation from the Fund if he had received the damage payment before being compensated from the Fund.

SECTION 4114. SUBROGATION

Section 4114 permits the Attorney General to institute a suit against an offender convicted of an offense involving the act giving rise to the claim under this subchapter to recover the compensation paid under this subchapter. A suit is permitted even if the offender is convicted under State or local law of the act for which Federal jurisdiction existed under chapter 16 but which was not exercised because of

the frequently used practice of deferring to State and local prosecutions even though an act may in fact constitute a Federal offense. A suit under this subchapter must be brought within three years of the entry of an order for payment of compensation.

SECTION 4115. DEFINITIONS FOR SUBCHAPTER B

This section contains five definitions for this subchapter. Section 4115 (a) defines "dependent" to include a spouse, a posthumous child, or a dependent as defined in section 152 of the Internal Revenue Code of 1954 which is the section describing dependents for purposes of Federal income taxes.

Section 4115 (b) defines "financial stress" (required under section 4113 (a) (4) before an order for payment may be made) as undue financial strain as the result of pecuniary loss. The definition includes a list of items which may be owned by a claimant without barring his claim that he is subject to financial stress. These include a residence, usual household items and personal effects, an automobile, tools necessary for employment, and liquid assets not exceeding a year's gross income or $10,000, whichever is less. Thus, a claimant may claim financial stress for purposes of this subchapter without first leaving himself without basic necessities and security before he is able to file a claim. Under section 4113 (c), "liquid assets" are defined to include cash on hand, savings accounts, checking accounts, certificates of deposit, stocks, bonds, and other personal property readily convertible to cash. Section 4113 (d) defines "pecuniary loss" in the case of personal injury to include medical and related expenses, including psychiatric care, expenses reasonably incurred for physical and occupational therapy and rehabilitation, and actual loss of past earnings and anticipated loss of future earnings at a rate not to exceed $150 per week. "Pecuniary loss" in the case of death from the offense is defined to include reasonable funeral and burial expenses, and loss of support to a surviving dependent at a rate not to exceed a total of $150 per week for all dependants. These limitations are, of course, further subject to the provisions of section 4112(d) (1) that the payment for anticipated earnings or support is only available if the loss continues for a period longer than ninety days and that payments may not be continued for a period longer than ten years. The payments are further limited to the restriction of $50,000 contained in section 4113(b), on the total amount which may be paid on account of a single offense against a single victim.

"Personal injury" is defined in section 4115(e) to include bodily injury, pregnancy, mental distress, and nervous shock.

8 26 U.S.C. 152.

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