In addition, the JUSTICE DEPARTMENT’s Office for Victims of Crime OVC, which was established in 1984 under theVICTIMS OF CRIME ACT, oversees many federal programs that benefit crime vict
Trang 1select particular items from an appropriations bill and veto them individually This authority, called the“line-item veto,” is popular because it allows the executive to cancel specific appro-priations items from bills that are hundreds of pages long The legislature can override the veto
by a two-thirds majority vote
In the 1980s and early 1990s, Presidents
RONALD REAGANandGEORGE H.W.BUSHcalled for a
CONSTITUTIONAL AMENDMENT that would provide the president with a line-item veto After years
of debate, Congress rejected the idea of enacting such an amendment and instead approved federal line-item veto authority in a 1996 statute known as the Line-Item Veto Act (2 U.S.C.A §§
691–692) The act gave the president the ability
to cancel individual tax and spending measures included in federal legislation
Members of Congress who were opposed to the act immediately filed a federal lawsuit, arguing that the act was unconstitutional In Raines v Byrd, 521 U.S 811, 117 S.Ct 2312, 138 L.Ed.2d 849 (1997), the SUPREME COURT con-cluded that the plaintiffs did not have standing
to bring the action and dismissed the case A key point in the ruling was that a PLAINTIFF had to show an actual injury resulting from the law
The senators and representatives had argued that the constitutionalSEPARATION OF POWERShad been violated by the act, but the Court found that this was not an actual injury Therefore, the Supreme Court had no jurisdiction
Two groups of plaintiffs then filed suit, arguing that they had been injured One group included the City of New York, two hospital associations, one hospital, and two unions that represented HEALTH CAREemployees They chal-lenged a line-item veto that President BILL CLINTONhad made in the 1997 Balanced Budget Act The other group was the Snake River Potato Growers, Inc., which consisted of approximately
30 potato growers located throughout Idaho
The collective opposed President Clinton’s cancellation of a provision of the Taxpayer Relief Act of 1997 Both groups of plaintiffs argued that the line-item vetoes had deprived them of federal funds The U.S district court found that the parties had standing and that the act violated the Presentment Clause under Article I of the Constitution The Supreme Court eventually resolved the matter in Clinton v City of New York, 524 U.S 417, 118 S Ct 2091, 141 L Ed 2d
393 (1998)
The Court, in a 6–3 vote, agreed that the Line-Item Veto Act, which empowered the president to cancel individual portions of bills, violated the Presentment Clause Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must either be approved (signed) or returned (vetoed) by the president By canceling only parts of the legislation, President Clinton had,
in effect, amended the laws The Court con-cluded that there was no constitutional autho-rization for the president to amend legislation at his discretion
One widely used means of congressional oversight has been the legislative veto A legislative veto is a statutory device that subjects proposals and decisions of EXECUTIVE BRANCH
administrative agencies to additional legislative consideration The legislature may disapprove agency action by a committee, one-house, or
CONCURRENT RESOLUTION Since it was first used in the 1930s, the legislative veto has been the subject of contro-versy The legislative veto circumvents traditional bill-passing procedures in that the legislative action is not presented to the executive for approval This veto has been defended on the ground that it is not a legislative act In
IMMIGRATIONand Naturalization Service v Chadha,
462 U.S 919, 103 S Ct 2764, 77 L Ed 2d 317 (1983), the U.S Supreme Court invalidated legislative veto provisions involving immigration and naturalization on the ground that these provisions violated the separation of powers between the legislative and executive branches Despite Chadha, Congress has not systematically removed legislative veto provisions from federal statutes, and some states continue to use the legislative veto
FURTHER READINGS Cameron, Charles M 2000 Veto Bargaining: Presidents and the Politics of Negative Power New York: Cambridge Univ Press.
Lipson, G V., ed 2002 Presidential Vetoes: Challenges and Bibliography Hauppauge, N.Y.: Novinka.
Mason, Edward Campbell 1967 The Veto Power: Its Origin, Development, and Function in the Government of the United States, 1789–1889 New York: Russell & Russell National Conference of State Legislatures “Gubernatorial Veto Authority with Respect to Major Budget Bill(s) ” www.ncsl.org (accessed August 20, 2009).
CROSS REFERENCES Legislation; Legislative History; Presidential Powers.
228 VETO
Trang 2VEXATIOUS LITIGATION
A legal action or proceeding initiated maliciously
and withoutPROBABLE CAUSEby an individual who
is not acting in GOOD FAITH for the purpose of
annoying or embarrassing an opponent
The U.S legal system permits persons to file
civil lawsuits to seek redress for injuries
committed by a defendant However, a legal
action that is not likely to lead to any practical
result is classified as vexatious litigation Such
litigation is regarded as frivolous and will result
in the dismissal of the action by the court A
person who has been subjected to vexatious
litigation may sue the plaintiff for MALICIOUS
PROSECUTION, seeking damages for any costs and
injuries associated with the original lawsuit
Litigation is typically classified as vexatious
when an attorney or a pro se litigant (a person
representing himself without an attorney)
repeatedly files groundless lawsuits and
repeat-edly loses Under theCOMMON LAW, the frequent
incitement of lawsuits by an attorney
consti-tuted the crime of BARRATRY In modern law,
however, barratry is viewed as an archaic crime
and is rarely enforced Attorneys who encourage
vexatious litigation are subject to discipline for
violating rules of professional conduct and may
be suspended from the PRACTICE OF LAW or
disbarred
Sometimes pro se litigants who have lost
their initial lawsuits file new actions based on
the dispute contained in the original suit
Because the judgment of the original case is
dispositive, a court will ultimately dismiss these
new actions To avoid the expenditure of court
resources, as well as the costs associated with the
defendant’s defense of repeated frivolous claims,
a court may issue an order forbidding the pro se
litigant to file any new actions without
permis-sion of the court
Vexatious litigation is a type of malicious
prosecution that enables the defendant to file a
tort action against the plaintiff A plaintiff in a
malicious prosecution must prove that a legal
proceeding (or multiple proceedings) was
instituted by the defendant, that the original
proceeding was terminated in favor of the
plaintiff, that there was no probable cause for
the original proceeding, and that malice, or a
primary purpose other than that of bringing the
original action, motivated the defendant A
plaintiff in such an action may recover, for
example, the expenses incurred in defending the
original suit or suits, as well as resulting financial loss or injury A plaintiff may also recover damages for mental suffering of a kind that would normally be expected to follow from the original action
VICARIOUS LIABILITY The TORT doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such
as PARENT AND CHILD, employer and employee, or owner of vehicle and driver), to exercise such care
as a reasonably prudent person would use under similar circumstances
Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a parti-cular legal relationship to the person who did act negligently It is also referred to as imputed
NEGLIGENCE Legal relationships that can lead to imputed negligence include the relationship between parent and child, HUSBAND AND WIFE, owner of a vehicle and driver, and employer and employee Ordinarily the independent negli-gence of one person is not imputable to another person
Other theories of liability that are premised
on imputed negligence include the RESPONDEAT SUPERIOR doctrine and theFAMILY CAR DOCTRINE Both of these doctrines focus on specific types of relationships between agents and principals
The doctrine of RESPONDEAT SUPERIOR (Latin for “let the master answer”) is based on the employer-employee relationship The doctrine makes the employer responsible for a lack of care on the part of an employee in relation to those to whom the employer owes a duty of care For respondeat superior to apply, the employee’s negligence must occur within the scope of her employment
The employer is charged with legal respon-sibility for the negligence of the employee because the employee is held to be an agent of the employer If a negligent act is committed by
an employee acting within the general scope of her or his employment, the employer will be held liable for damages For example, if the driver of a gasoline delivery truck runs a red light on the way to a gas station and strikes another car, causing injury, the gasoline delivery company will be responsible for the damages if
VICARIOUS LIABILITY 229
Trang 3the driver is found to be negligent Because the company will automatically be found liable if the driver is negligent, respondeat superior is a form ofSTRICT LIABILITY
Another common example of imputed negligence is attributing liability to the owner
of a car, where the driver of the car committed a negligent act This type of relationship has been labeled the family car doctrine The doctrine is based on the assumption that the head of the household provides a car for the family’s use and, therefore, the operator of the car acts as an agent of the owner When, for example, a child drives a car registered to a parent for a family purpose, the parent is responsible for the negligent acts of the child at the wheel
Liability can also be imputed to an owner of
a car who lends it to a friend Again, the driver
of the car is acting as the agent of the owner If the owner is injured by the driver’s negligence and sues the driver, the owner can lose the lawsuit because the negligence of the driver can
be imputed to the owner, thereby rendering him contributorily negligent This concept is known as imputed contributory negligence
Vicarious liability can arise in the context of other principal-agent relationships For in-stance, if a general partner in a partnership commits a tort committed in the course of the partnership’s business, the partnership and the other partners can be liable
FURTHER READINGS Kionka, Edward J 2006 Torts St Paul, MN: Thomson/
West.
Rothstein, Mark A., Charles B Craven, Elinor P Schroeder, and Elaine W Shoben 2005 Employment Law St Paul, MN: Thomson/West
CROSS REFERENCES Employment Law; Scope of Employment; Tort Law.
VICE
A fault, flaw, defect, or imperfection Immoral conduct, practice, or habit
InCIVIL LAW, redhibitory vices are defects or flaws in the subject matter of a sale that entitle the buyer to return the item and recover the purchase price
A vice crime is any type of immoral and illegal activity, such as prostitution, the sale of
DRUGS AND NARCOTICS, and gambling
VICE CRIMES
A generic legal term for offenses involving immo-rality, including PROSTITUTION, LEWDNESS, LASCIVI-OUSNESS, andOBSCENITY
VICE PRESIDENT The vice president of the United States occupies
a high position in government, but is given little responsibility under the U.S Constitution A person elected vice president presides over the Senate, but apart from that duty, he or she must rely upon the president to assign additional responsibilities The Constitution requires that
a vice president of the United States must be a native-born citizen, 35 years of age or older, who has resided in the United States for at least 14 years TheELECTORAL COLLEGEchooses the vice president, who holds office for a term of four years Until 1804, under Article II, Section 2, Clause
3, of the Constitution, each member of the Electoral College was permitted to vote for two persons The person receiving the highest total became president, and the person receiving the second highest total became vice president The ratification of theTWELFTH AMENDMENTto the Constitution, in 1804, changed this procedure
by requiring each elector to vote for president and vice president on separate ballots instead of voting for two persons on a single ballot During the early years of the Republic, the vice president was limited to the only function set forth in the Constitution, that of president of the Senate (As such, he or she occupies a largely ceremonial role, having no vote unless the senators are equally divided on a particular issue.) In 1841, however,JOHN TYLERbecame the first vice president to take over the presidency because of the death of the chief executive, President WILLIAM HENRY HARRISON Article II of the Constitution was silent on the matter of succession, so some political leaders suggested that Tyler serve as acting president Tyler rejected this idea and announced that he would assume the full powers and duties of the office, setting a precedent that would be followed by other vice presidents
Presidential succession was clarified by the Twentieth and Twenty-fifth Amendments to the Constitution Under theTWENTIETH AMENDMENT,
if a president-elect dies before assuming office, the vice president elect becomes president Under theTWENTY-FIFTH AMENDMENT, if the presi-dent is removed from office, dies, or resigns
230 VICE
Trang 4during his or her term of office, the vice president
becomes president Eight U.S presidents have
died in office, with the result that the vice
president assumed the presidency In 1974 Vice
PresidentGERALD R.FORDbecame president when
RICHARD M NIXON resigned in the face of
IMPEACHMENTcharges
The Twenty-fifth Amendment also provides a
method for the vice president to become acting
president If the president transmits a message to
both houses of Congress stating that he or she
cannot discharge the powers and duties of the
office, the vice president becomes acting
presi-dent Until the president subsequently transmits
a written declaration to the contrary, the vice
president remains acting president
In addition, the amendment concerns the
determination of whether a president is unable
to govern In such a case, the vice president and
a majority of the cabinet may transmit to both
houses of Congress a declaration that the
president is unable to discharge the powers
and duties of the office If this occurs, the vice
president must immediately assume the powers
and duties of the office as acting president
The president may resume his or her duties
by notifying the president pro tempore of the
Senate and the Speaker of the House of
Representatives that the disability no longer
exists However, within four days, the vice
president and the majority of the cabinet may
send a declaration to Congress disputing the
assertion of the president that he or she is able to
discharge the duties of the office If this happens,
Congress must vote by a two-thirds majority in
both houses that the president is unable to serve
Otherwise, the president will reassume office
The Twenty-Fifth Amendment has been
invoked during two brief periods of time In
1985, when PresidentRONALD REAGANunderwent
cancer surgery, he transferred power to Vice
PresidentGEORGE H.W.BUSHfor a period of eight
hours Several commentators expected Bush to
take charge under the amendment four years
earlier, in 1981, when Reagan was shot by John
Hinckley Jr However, the president did not
yield control even though later reports showed
that he was in critical condition In June 2002
President GEORGE W BUSH temporarily
trans-ferred power to Vice President Dick Cheney
while he underwent a colonoscopy
If a vice president dies in office or resigns,
the Twenty-fifth Amendment authorizes the
president to choose a new vice president, subject to confirmation by a majority vote of both houses of Congress This situation oc-curred twice during the Nixon and Ford administrations In 1973, President Nixon appointed Gerald R Ford to replace Vice President Spiro T Agnew, who resigned amidst criminalBRIBERYcharges When Nixon resigned
in August 1974 because of the WATERGATE
scandal, Ford became president Ford then appointed Nelson A Rockefeller vice president
The executive functions of the vice president include participation in all cabinet meetings and, by statute, membership in the NATIONAL SECURITY COUNCIL, the Domestic Council, and the
BOARD OF REGENTSof the Smithsonian Institution
Although the vice president may take an active role in establishing policy in the EXECUTIVE BRANCH by serving on such committees and councils, the relative power of the vice pre-sident’s office depends upon the duties dele-gated by the president
Since the early 1990s, vice presidents such as
AL GOREand Dick Cheney have played significant roles on both the domestic and international fronts Gore, for example, was heavily involved
in establishing environmental policy during President BILL CLINTON’s administration Like-wise, Cheney—who served as secretary of defense under GEORGE H.W BUSH—was highly influential in establishing the international agenda of President George W Bush
The events that occurred during and after the
SEPTEMBER 11, 2001, TERRORIST ATTACKS demon-strate the importance of the vice president’s
The official seal of the office of the vice president of the United States BETTMANN/CORBIS VICE PRESIDENT 231
Trang 5position Immediately after the attacks began,
SECRET SERVICE agents removed Vice President Cheney to a secret bunker beneath the White House President Bush was in Florida when the attacks occurred, and Cheney maintained con-tact with him throughout the confusing morn-ing When reports indicated that terrorists were flying a hijacked plane toward Washington, Cheney reportedly ordered that the plane should be shot down by the military Several passengers on the flight attacked the terrorists before military action was necessary, though the plane crashed in Pennsylvania and killed everyone on board.In the days that followed the attacks, Cheney was moved to a number of secret locations in order to separate him from Bush The fear was that terrorists would launch assassination attempts
FURTHER READINGS Purcell, L Edward 2001 Vice Presidents: A Biographical Dictionary New York: Checkmark Books.
Waldrop, Carol C 2006 Vice Presidents: Biographies of the
45 Men Who Have Held the Second Highest Office in the United States Jefferson, N Car.: McFarland and Company.
VICTIM-ASSISTANCE PROGRAM
A government program that provides information and aid to persons who have suffered direct physical, emotional, or pecuniary harm as a result
of the commission of a crime
All 50 states have government-funded enti-ties that provide services toVICTIMS OF CRIME In addition, the JUSTICE DEPARTMENT’s Office for Victims of Crime (OVC), which was established
in 1984 under theVICTIMS OF CRIME ACT, oversees many federal programs that benefit crime victims These programs provide information
to victims about their rights as well as emotional and financial support
Victim-assistance programs appeared for the first time in the early 1970s as part of the
VICTIMS’RIGHTS movement Victims complained that police and prosecutors did not keep them informed about ongoing investigations and prosecutions Most importantly, victim-rights advocates argued for the establishment of victim-compensation funds States began to enact victim-compensation statutes and, by
2003, all 50 states had such funds in place
These laws authorized the creation of programs that pay victims compensation for certain losses associated with a criminal act
Compensation is generally provided for lost earnings, medical expenses, mental health counseling, and funeral expenses However, these programs do not fully compensate victims because losses are capped at fixed amounts In addition, victims must satisfy threshold require-ments: (1) they must report the crime to law enforcement within a specific period of time (usually 30 days); (2) the crime must have occurred within the state that the claim is made; (3) a claim must be filed with the compensation program within a specific amount of time; (4) the victim must cooperate fully with the investigation and prosecution of the crime; and (5) the victim cannot have been commit-ting a crime or have been involved in any misconduct connected to the incident Some states limit compensation benefits only to victims who have low incomes, while other compensation programs may only pay benefits
to victims who are physically injured or to the families of victims who are killed
Though some compensation funds are paid for with taxpayer money, most state programs are funded by fees and charges paid for by offenders For example, some states require an offender to pay a set penalty fee, such as $50 for each felony charge This creates a compensation pool, which encourages victims to sue when those victims would otherwise be discouraged at the prospect of trying to make a criminal pay a court judgment
Apart from compensation programs, federal and state laws mandate that victims be kept informed about the criminal investigation and prosecution Though police and prosecutors may contact victims, most jurisdictions have employees who serve as victim advocates Victim advocates counsel victims and their families, update them about the criminal case, prepare victims to testify at trial, and help them apply to the compensation fund In addition, they help victims prepare impact statements that are either given orally or submitted in writing to the court before the DEFENDANT is sentenced Crime victims may also receive restitution directly from the defendant Judges routinely order the person convicted of a crime
to pay for any damage to the victim’s property Since the late 1990s, many states have provided crime victims with online access to their programs and services, which has in-creased the number of individuals willing to
232 VICTIM-ASSISTANCE PROGRAM
Trang 6reach out for help by making it easier for them
to do so In 2008 the New York State Crime
Victims Board’s website was singled out for its
particularly friendly INTERNET design, which
features a prominent link on the home page
(“Need Help? Don’t Wait, Click Here”) that
redirects a visitor to a comprehensive overview
of services the board provides It also features a
“Locate a Program” function that provides two
ways to search for a victim-assistance program:
by county or by a 5-, 10-, 25-, or 50-mile radius
from a particular zip code The website’s
navigation is streamlined with information no
more than four mouse clicks away from the
home page In addition,
victim-assistance-program professionals also have access to a
secure portion of the website, which allows
them to participate in Web forums to foster
discussion, share information, and answer
questions
Victim-assistance programs have fared less
well during the global economic downturn that
began in 2008 Programs in many states have
suffered drastic budget cuts, while a few state
programs are facing elimination altogether
In Tampa, Florida, for example, the
victim-assistance program is $140 million in debt, and
the county administrator’s office is targeting the
program for elimination, a move that would
save $2.5 million annually
FURTHER READINGS
Beloof, Douglas E 1999 Victims in Criminal Procedure.
Durham, N.C.: Carolina Academic Press.
Davis, Joseph A., ed 2001 Stalking Crimes and Victim
Protection: Prevention, Intervention, Threat Assessment,
and Case Management Boca Raton, Fla.: CRC Press.
Jerin, Robert A., and Laura J Moriarity 1998 Victims of
Crime Chicago: Nelson-Hall.
Office for Victims of Crime Website Available online at
www.ojp.usdoj.gov/ovc (accessed January 10, 2010).
CROSS REFERENCES
Victims of Crime; Victims of Crime Act of 1984; Victims ’
Rights.
VICTIMLESS CRIMES
Crime where there is no apparent victim and no
apparent pain or injury This class of crime
usually involves only consenting adults in
activi-ties such as PROSTITUTION, SODOMY, and GAMING
where the acts are not public, no one is harmed,
and no one complains of the activities Some
groups advocate legalizing victimless crimes by
removing these acts from the law books Other
critics complain that there is no such thing as a victimless crime; whenever one of these crimes is committed but goes unpunished, individual mores, societal values, and the RULE OF LAW are undermined or compromised, rendering society itself the victim
VICTIMS OF CRIME Victims have always had the right to sue for money damages a person who injures them during a criminal act For most crime victims, however, this solution has generally not proved practical because victims frequently do not know who committed the crime against them and the criminals are not always apprehended
Even when a criminal is available to be sued, the victim may not have adequate funds to pay for a lawsuit, or the criminal may have no money to pay damages if the victim is successful
Background and History Victims’ rights as a concept in American
CRIMINAL LAW has had a patchy history The prosecutorial-centered approach to criminal law developed in both the English and American
COMMON LAWsystems tended to marginalize the victim’s position in the criminal process Other than their testimony, there was no formal role for victims during the criminal trial, and little way for them to obtain compensation for the harms inflicted on them following the trial
Following WORLD WAR II, especially, Ameri-can law seemed to be more interested in the rights of the criminally accused This was evident after the Supreme Court’s Miranda ruling (MIRANDA V ARIZONA, 1966) and subse-quent cases, which laid new boundaries for the constitutional rights of suspects Many victims came to believe that they had fewer rights than the criminals who had injured them In addition, some victims became so alienated from the criminal justice process that prosecu-tors had difficulty persuading them to testify at trial
In the 1970s, however, the phrase “victims’
rights” was increasingly heard as a rallying cry for those who felt that justice was not meted out equally to victims Groups such as theNATIONAL ORGANIZATION FOR WOMEN (NOW), MOTHERS AGAINST DRUNK DRIVING (MADD), and various child advocacy groups raised the conscious-ness of the public regarding the treatment
of victims by the criminal justice system In
VICTIMS OF CRIME 233
Trang 7response, theJUSTICE DEPARTMENT, under President
RONALD REAGAN, set up the President’s Task Force
onVICTIMS OF CRIME In 1982, the task force issued
a report that was strongly critical of existing victims’ rights programs The report particularly criticized existing victims-compensation pro-grams, which were described as“inadequate” in terms of resources and difficult to utilize
Federal Victim Compensation Laws
As a result of the findings, the federal govern-ment passed the Victim and Witness Protection Act, Pub L No 97-291, 96 Stat 1248 (1982), providing restitution for crime victims and allowing the use of “victim impact statements”
at federal sentencing hearings In 1984, Con-gress passed theVICTIM OF CRIME ACT(VOCA), an attempt by the federal government to establish help for crime victims on a nationwide scale
Among other things, the act created a federal victims’ compensation account funded by fines assessed in federal criminal convictions It also established funding to help state programs that compensate the victims of crime The act has resulted in the distribution of over $1 billion in funds to victims of crime since it began
Another notable federal law that was enacted
to help victims of crime was the VIOLENCE AGAINST WOMEN ACT (VAWA), Pub L No
103-322, tit IV, 108 Stat 1902 (1994) The act aided the victims of gender-based crimes by establish-ing new rights for those victims at trial and allotting funding to various organizations that assist those victims
In 2004, Congress sought to extend the protections offered in VOCA by passing the Crime Victims’ Rights Act (CVRA), also known
as the Justice for All Act, codified at 18 U.S.C §
3771 CVRA defines the rights of crime victims
to include the right of notice to proceedings, the right to be reasonably heard at proceedings, and the right to full and timely restitution as provided in law It affords victims an unprece-dented right to seek MANDAMUS when they are denied the rights guaranteed by federal law
Victims may even move to re-open a plea agreement or sentence under certain circum-stances In treating the victim as a presumptive equal with the parties in many respects, CVRA raises numerous issues yet to be determined in the CASE LAW as to how the victim might be permitted in the future to present evidence at sentencing or other proceedings regarding harms caused by the offense
State Victim Compensation Laws Following the lead of the federal government, all
50 states have enacted victim-compensation statutes, which authorize payment of money from the public treasury to crime victims so that they are not forced to bear the full burden of the crime Although compensation can be provided for lost earnings, medical expenses, and the replacement of property, the majority of plans do not replace every dollar lost
Most compensation plans provide benefits only to victims who have low income or few resources, although some plans allow anyone who is an innocent victim or did not contribute
to the cause of her injuries to receive benefits Some plans pay benefits only to victims who are physically injured or to the families of victims who are killed
An individual who wishes to apply for victim compensation must do so promptly after the injury Ordinarily, this is done by filling out
a form provided by the state official or victim-compensation board responsible for adminis-tering the program States generally will not consider applications filed later than a specified period after the crime
As part of a victim-compensation plan, a state may take any profit a criminal makes from the crime and hold it in trust to pay victims who successfully sue the criminal This feature is designed to encourage victims who would ordinarily not sue because they are aware that most criminals cannot pay judgments Under such a plan, any money paid to a convicted criminal for a book, story, or dramatization of the crime must be turned over to the state, and the funds deposited into a specialESCROWaccount and held available to pay any victim who successfully sues the criminal Forty-one states have adopted such laws, and the federal government estab-lished a similar process in theVICTIMS OF CRIME ACT
OF1984 (18 U.S.C.A §§ 3681–3682)
These statutes are known as “Son of Sam” laws, after David Berkowitz, a New York serial killer who left a note signed“Son of Sam” at the scene of one of his crimes and was thereafter nicknamed Son of Sam by the New York press The first Son of Sam law (N.Y Exec Law § 632-a [McKinney 1990]) was enacted by the New York state legislature in 1977 after it learned that Berkowitz was planning to sell his story of serial killing
234 VICTIMS OF CRIME
Trang 8The U.S.SUPREME COURTstruck down the New
York law in Simon & Schuster v New York
Victims Crime Board, 502 U.S 105, 112 S Ct
501, 116 L Ed 2d 476 (1991) The Court held
that the law was based on the content of a
publication and therefore violated the FIRST
AMENDMENT New York quickly amended its law
to apply to any economic benefit the criminal
derived from the crime, not just the proceeds
from the sale of the offender’s story This
redefinition was intended to eliminate the
unconstitutional regulation of expressive activity
and reconceptualize the law as a regulation of
economic proceeds from crime Other states have
modified their laws as well, but it remains to be
seen whether they will be found constitutional
Other State Victims’ Rights Laws
Most states have adopted other provisions in
support of victims’ rights The majority of these
provisions have been codified through
legisla-tion, but several take the form of state
constitutional amendments These laws require
victims to be treated with dignity and fairness,
and many require that the victim be kept
informed of the status of the case and be notified when the criminal is released from prison A key part of these initiatives concerns
“victim impact statements.” A victim impact statement is made by the victim or a member of the victim’s family at the time of sentencing or during a PAROLEhearing The speaker describes the impact the crime has had upon the victim and her family
In Booth v Maryland, 482 U.S 496, 107 S
Ct 2529, 96 L Ed 2d 440 (1987), the U.S
Supreme Court forbade the use of victim impact statements in death penalty cases The Court reasoned that the imposition of CAPITAL PUNISH-MENTcould be based on subjective feelings for the victim rather than objective criteria indicating the defendant’s guilt In Payne v Tennessee, 501 U.S 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991), however, the Court reversed itself and held that theEIGHTH AMENDMENTdoes not bar the jury from considering victim impact statements
Victim Advocates
In response to the growing support for victims’
rights, the criminal justice system has created
An Automated Victim Notification
System
C
B
rime victims commonly worry about the day
when an inmate convicted in their case is
released from custody Women who have been
stalked and victimized by boyfriends and former
spouses fear that they will return again Only rarely
is the victim promptly notified of an inmate’s
release In 1997 the state of Kentucky addressed
this problem by introducing the first completely
automated victim notification system
The Kentucky system, called Victim
Infor-mation and Notification Everyday (VINE), is a
statewide system that seeks to help crime victims,
especially those who have been subjected to
domestic violence The VINE system keeps tabs
on inmates in Kentucky’s 17 state prisons and 83
county jails
To obtain information, a person dials a toll-free number and supplies the prisoner’s name or prison identification number A computer then provides information as to where the prisoner is incarcer-ated, the telephone number and address of the jail
or prison, the date of the inmate’s next parole hearing, and the date the sentence expires
In addition, a person may confidentially register with the automated system and request to be notified when an inmate is released Registered persons automatically receive a telephone call within ten minutes of an inmate’s transfer or release, giving them time to take precautions
FURTHER READINGS
“VINE Brochure.” Available online at gov.state.ky.us/domviol/
vinebrch.htm (accessed February 27, 2004).
VICTIMS OF CRIME 235
Trang 9the position of victim advocate Victim advo-cates first gained prominence during the women’s and victims’ rights movements of the 1970s and 1980s RAPE and domestic abuse counselors saw the need for advocates to support and guide victims through the ordeal
of trial
Victim advocates counsel victims and their families, keep them informed about the prog-ress of an investigation, prepare them for trial, refer them to needed services, explain court proceedings, and act as a liaison with state and local agencies By providing support to people who have been devastated by a crime, they free police officers and prosecutors from the task of dealing with distraught families and friends
Victim advocates may work in conjunction with
VICTIM ASSISTANCE PROGRAMS, governmental pro-grams that provide information and aid to persons who have suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime
FURTHER READINGS Boland, Mary L 2001 Crime Victims’ Guide to Justice.
Naperville, Ill.: Sphinx Pub.
Dubber, Markus Dirk 2002 Victims in the War on Crime:
The Use and Abuse of Victims’ Rights New York: New York Univ Press.
Karmen, Andrew 2007 Crime Victims: An Introduction to Victimology 6th ed Belmont, California: Thomson Wadsworth.
Sgarzi, Judith M., and Jack McDevitt, eds 2003 Victimology:
A Study of Crime Victims and Their Roles Upper Saddle River, N.J.: Prentice Hall.
Tobolowsky, Peggy M 2001 Crime Victim Rights and Remedies Durham, N.C.: Carolina Academic Press.
CROSS REFERENCES Shield Laws; Stalking; Victim Assistance Program; Victims
of Crime Act of 1984; Victims ’ Rights.
VICTIMS OF CRIME ACT OF 1984 The Victims of Crime Act of 1984 (VOCA) was
an attempt by the federal government to help the victims of criminal actions through means other than punishment of the criminal It created a federal victim-compensation account funded by fines assessed in federal criminal convictions, and it established provisions to assist state programs that compensated the victims of crimes The compensation system is still in existence, having distributed over $1 billion in funds since it began
The statute, codified at 42 U.S.C § 10601, was a direct result of a task force set up by the
JUSTICE DEPARTMENTunder the auspices of Presi-dentRONALD REAGAN Called the President’s Task Force on Victims of Crime, the report issued by the task force in 1982 was harshly critical of existing victim-compensation programs “In many states, program availability is not adver-tised for fear of depleting available resources or overtaxing an insufficient staff Victim claims might have to wait months until sufficient fines have been collected or until a new fiscal year begins and the budgetary fund is replenished,” according to the report
VOCA established the Crime Victim’s Fund, which is supported by all fines that are collected from persons who have been convicted of offenses against the United States, except for fines that are collected through certain environ-mental statues and other fines that are specifi-cally designated for certain accounts, such as the Postal Service Fund The fund also includes special assessments collected for various federal crimes under 18 U.S.C § 3613, the proceeds of forfeited appearance bonds, bail bonds, and collateral collected, any money ordered to be paid into the fund under section 3671(c)(2) of Title 18; and any gifts, bequests, or donations to the fund from private entities or individuals The first $10 million from the fund, plus an added amount depending on how much has been deposited in the fund for that fiscal year, goes to child-abuse prevention and treatment programs After that, such sums as may be necessary are made available for the U.S Attorneys’ Offices and the FEDERAL BUREAU OF INVESTIGATIONto improve services for the benefit
of crime victims in the federal criminal justice system, and for a Victim Notification System Once those distributions have been made, the fund is distributed to victim-compensation programs in two different ways One is to eligible victim-compensation programs The law sets up a number of criteria as to whether
a program is eligible, including: 1) whether it is
a program operated by the state that offers compensation to victims and survivors of victims of criminal violence; 2) whether the program promotes victim cooperation with the reasonable requests of law enforcement author-ities; 3) whether the state certifies that grants received under this section will not be used to supplant state funds that are otherwise available
to provide victim compensation; 4) whether the program makes compensation awards to vic-tims who are nonresidents of the state on the
236 VICTIMS OF CRIME ACT OF 1984
Trang 10basis of the same criteria that are used to make
awards to victims who are residents of such
state; 5) and whether the program provides
compensation to victims of federal crimes
occurring within the state on the same basis
that such program provides compensation to
victims of state crimes The program also must
not deny compensation to any victim because of
that victim’s familial relationship to the
of-fender, or because of the sharing of a residence
by the victim and the offender, nor may it
provide compensation to any person who has
been convicted of an offense under federal law
with respect to any time period during which
the person is delinquent in paying a fine, other
monetary penalty, or restitution imposed for
the offense
The other way the fund provides
compen-sation is to give the money directly to the
governor of a state for the financial support of
eligible victim-assistance programs The
gover-nor must certify that priority for money from
the fund will be given to eligible
victim-assistance programs providing victim-assistance to
victims of sexual ASSAULT, spousal abuse, or
CHILD ABUSE; and he must certify that funds will
be made available for grants to programs that
serve previously underserved populations of
victims of violent crimes
A small percentage of the fund is reserved
for demonstration projects, program evaluation,
compliance efforts, and training and technical
assistance services to eligible victim-assistance
programs The fund also has recently expanded
to apply to potential victims ofTERRORISMand is
authorized to set aside $50,000,000 from the
amounts transferred to it in response to the
SEPTEMBER 11TH ATTACKS as an antiterrorism
emergency reserve
In 2004 Congress sought to extend the
protections offered in VOCA by passing the
Crime Victims’ Rights Act (CVRA), sometimes
known as the Justice for All Act, codified at 18
U.S.C.A § 3771 CVRA defines the rights of
crime victims to include the right of notice to
proceedings, the right to be reasonably heard at
proceedings, and the right to full and timely
restitution as provided in law The CVRA
affords victims an unprecedented right to seek
MANDAMUS when they are denied the rights
guaranteed by federal law Victims may even
move to re-open a plea agreement or sentence
under certain circumstances In treating the
victim as a presumptive equal with the parties in
many respects, the CVRA raises numerous issues yet to be determined in the CASE LAW as
to how the victim might be permitted in the future to present evidence at sentencing or other proceedings regarding harms caused by the offense
FURTHER READINGS Greer, Desmond S 1994 “A Transatlantic Perspective on the Compensation of Crime Victims in the United States ” Journal of Criminal Law and Criminology 85 (Fall).
Karmen, Andrew 2007 Crime Victims: An Introduction
to Victimology 6th ed Belmont, Calif Thomson Wadsworth.
Roland, David L 1989 “Progress in the Victim Reform Movement: No Longer the 'Forgotten Victim.' ” Pep-perdine Law Review 17 (December).
CROSS REFERENCES Victim Assistance Program; Victims of Crime; Victims ’ Rights.
VICTIMS’ RIGHTS See VICTIMS OF CRIME
VIDAL V GIRARD’S EXECUTORS Vidal v Girard’s Executors43 U.S (2 How.)
127, 11 L Ed 205, was an 1844 decision in which the Supreme Court held that the city of Philadelphia, Pennsylvania, had power, pur-suant to its charter, to accept and administer a
CHARITABLE TRUST Stephen Girard was a native of France who emigrated to the American colonies shortly before the Declaration of Independence Prior
to 1783 he became a resident of the city of Philadelphia, where he died, a childless wid-ower, in December 1831 In addition to some minor real estate holdings near Bordeaux, France, Girard owned real property in the United States that had cost him $1.7 million and PERSONAL PROPERTYworth approximately $5 million On December 25, 1830, he executed a will making various bequests to his relatives and friends, to the city of New Orleans, and to specified charities His will and two codicils were admitted to probate on December 31,
1831 His closest relatives were a brother and a niece, who sought to have a portion of his will set aside, and three other nieces, who were named defendants in the action The lower court ruled in favor of the defendants, and the plaintiffs appealed to the Supreme Court
VIDAL V GIRARD’S EXECUTORS 237