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Victim compensation: a child of penal welfarism or
carceral policies
By Mimi E. Kim, MSW, Ph.D. (Corresponding author),
Assistant Professor, School of Social Work, California State
University, Long Beach
Carina Gallo, MSW, Ph.D., Assistant Professor, School of Public
Affairs and Civic Engagement, San Francisco State University
Mimi E. Kim & Carina Gallo – Victim compensation: ... Nordisk Tidsskrift for Kriminalvidenskab 1/ Abstract Swedish Under efterkrigstiden förändrades många västerländska länders kriminalpolitik i riktning mot välfärd och rehabilitering. Detta ideal fokuserade gärningsmannen, inte brottsoffret. Detta skulle snart komma att förändras. En av de första initiativ som togs för brottsoffer var brottsskadeersättning, en ekonomisk kompensation som infördes på 1960-talet. Denna artikel jämför utvecklingen av brottsska- deersättning i två länder, USA och Sverige, i relation till deras välfärds- och kri- minalpolitik. Båda länderna initierade kompensationsreformer för brottsoffer i välfärdsinstitutionella kontexter. Med stöd i en jämförande historisk fallstud- iemetod visar artikeln dock att kompensationsreformerna i de två länderna skilde sig åt och kom att avspegla respektive lands välfärds- och kriminalpolitik. De första svenska kompensationsreformerna förankrades som en socialförsäkrings- fråga, medan deras motsvarigheter i USA snabbt banade väg för mer straffinrik- tade program.
Abstract English In the post-war period, many Westernized countries advanced toward more re- habilitative and welfarist ideals informing crime policies. These ideals centered on the offending individual, not the victim. This was soon to change. Victim com- pensation programs were one of the first initiatives taken for victims of crime with the first established in the 1960s. This paper examines and compares the de- velopment of victim compensation programs in two countries with contrasting social welfare and penal policies, the United States and Sweden. Both countries developed victim compensation programs located within welfarist administrative institutions, suggesting common penal welfare frameworks and instruments. Us- ing the comparative historical case study method, the study finds that formative
Mimi E. Kim & Carina Gallo – Victim compensation: ...
victim compensation policies in the two countries differed widely, reflecting so- cial welfare versus remedial welfare policies, and rehabilitative versus punitive carceral frameworks, respectively. Arguments upholding penal welfarist ideals and social insurance concerns underlay the early formation of Sweden’s victim compensation program and anchored subsequent developments while, in the United States, political conditions led to a rapid trajectory in more punitive di- rections.
Introduction The victim rights movement, emerging in the United States in the mid-1970s and disseminating globally thereafter, has been recognized as a vehicle for the conso- lidation of pro-carceral sentiment and accompanying criminal legal policies (Eli- as, 1986; Gottschalk, 2006; Simon, 2007; Weed, 1998). However, the inception of the first crime victim-related policies took the form of victim compensation policies motivated more by social welfare concerns than their punitive merits. How then is victim compensation, birthed from welfarist ideals, related to the eventual and overarching association of victim rights with conservative, retribu- tive crime policy? This article examines the emergence of victim compensation in two distinct national contexts, the United States and Sweden, both known for their “excep- tional” welfare and crime policies, each representing extremes. The comparison of early victim compensation policies in both contexts serves to more finely arti- culate distinctions in social welfare and carceral characteristics relevant to victim compensation policies but with more expansive implications. While social welfa- rist beginnings defined the first victim compensation policies in both national contexts, the juxtaposition of welfarist policies within a remedial welfare regime (United States) and a social democratic regime (Sweden) raises critical insights into differences in motivation, outcomes, and policy trajectories despite osten- sibly similar policy origins. Furthermore, the intersection between welfare and crime policy regimes (see Gallo and Kim, 2016) represented by these two natio- nal contexts inform our understanding of divergent and convergent directions that follow these emergent victim compensation strategies. Although the concept and practice of pecuniary or other forms of payment for harms committed date back to much earlier times (Elias, 1986), the contemporary version of victim compensation or restitution has its birth in the post-war deve- lopment of the welfare state (Mawby & Walklate, 1994). Concomitantly, crime policy accompanying the developing welfare state in many countries advanced toward more rehabilitative and welfarist ideals. The improvement of economic
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mon policy, that is, victim compensation plans. This method allowed for a produc- tive comparison of policy initiation through welfarist and penal frameworks, fo- cusing on such factors as reason for initiation, administrative body, means- testing, attachment to criminal prosecution, and source of funding.
The United States: Remedial Social Welfare Beginnings and Early Carceral Ties In the U.S. context, victim compensation discussions entered a policy context embedded in a history of remedial welfare policies, defined by needs based pro- grams for those determined to be deserving recipients. Nascent discussions of victim compensation policy took place in the 1950s during a time when penal welfarist concerns for offender rehabilitation still weighed heavily in the consider- ation of crime related policy (Garland, 2001). Its implementation, however, co- incided with the emergence of punitive crime policies that increasingly centered victims, symbolically and concretely, as deserving citizens in contrast to vilified offenders. The arguments of Fry were introduced in a U.S. roundtable in 1959 (Fry et al., 1957/1959). Fry’s argument for state compensation as opposed to offender resti- tution gained substantial consideration in early discussions. By 1962, the U.S. Model Penal Code, which was designed by scholars, prosecutors, and defense lawyers to assist U.S. legislatures to update penal law listed restitution as one cri- terion for withholding sentence of imprisonment (Model Penal Code § 7.01). It was not until the passage of victim compensation laws in New Zealand in 1963 and England in 1964, that legal scholars and policymakers in the United States began to pay closer attention the arguments and proposals undergirding policy change abroad. The idea of a federal program was proposed by lawmakers as ear- ly as 1965 when Senator Yarborough began introducing a bill that would create a national compensation plan providing states with financial incentives to adopt similar programs (Elias, 1983). Despite discussions for the implementation of national compensation policies, the enactment of such policies in the United States started at the state level. They were also initiated as crime related sentiments and policies shifted from penal welfarism to the punitive regime emerging in the 1960s and gaining rapid force in 1970s and decades to follow. The 1960s were characterized by conservative poli- tical reaction to the advances made during the civil rights period, marked by a turn to racially coded references to crime (Simon, 2007). Anxieties about unbri- dled defendant rights were being matched by the identification and elevation of innocent victims of violent crimes committed by strangers (Elias, 1986; Gott-
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schalk, 2006; Simon, 2007). It is in this shifting political environment that the state of California enacted the nation’s first crime compensation bill.
California victim compensation: The remedial nature of social welfare The first U.S. policy began in California, where victim compensation was initia- ted through the Department of Social Welfare in 1965 (Cal. Welfare & Inst’ns Code § 11211). Seemingly far from the debates of legal scholars, a letter written to a State Senator on April 1, 1965 recounted an unfortunate situation in which a 50-year old female victim of a purse snatching was burdened with her own medi- cal bills. This letter initiated state legislation enacted within less than four months, by July 16th of that same year. The speed in which a hastily written bill moved through both houses of the state legislature virtually without debate spoke to emerging pro-victim sentiments. Its swift enactment was also facilitated by the ready availability of a Department of Social Welfare, already established to aid other “needy” individuals (Vaughn, 1979). Despite opposition from Department of Social Welfare personnel mystified by the vagueness of the bill and dismayed by the impossible task of its implementation, this policy, passed in 1964, estab- lishing a legislative precedent. Unconcerned with the rehabilitative effects on offenders, the California bill focused solely on the unmet needs of victims. State funds capped at $100,000 were to be distributed under the guidelines already established by the Department of Social Welfare, that is, with a remedial means-tested criterion. The usual bar was slightly altered to favor indigent individuals even if they had some manner of property in the case of criminal victimization (Bernstein, 1972). In its original form, victims were eligible for compensation under the means-tested criterion al- ready established by the Department of Social Welfare, that is, only married vic- tims with dependent children could receive funds. Those who were “unmarried, childless married couples, elderly people or individuals unable to pass a public welfare needs test” (Bernstein, 1972, p. 97) were excluded as they did not meet the rigorous standards of poor relief. Public outcry in response to these restric- tions forced an amendment which expanded the criteria to include single adults and adult dependents of victims. Those claimants who had property were subject to a reduction in compensation equivalent to the value of that property with indi- viduals owning property valued at more than $15,500 completely ineligible for compensation (Bernstein, 1972). The means-test criteria served a further function. While restrictions were so- mewhat loosened from the stringent policies of the Department of Social Wel- fare, the retention of the means-test inhibited suggestions that victim compensati-
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zen, the trope of the deprived “innocent” victim versus the coddled and overly- protected defendant increasingly articulated the binary framework that fueled the victim rights movement and the rise of pro-criminalization policies in the United States.
Sweden: Penal Welfarist Ideals and Social Insurance Concerns In the early 20th century, Sweden started a transformation from a poor rural country to a wealthy urban welfare state. Sweden would become known as a so- cial-democratic welfare state, characterized by a strong belief in equality, social solidarity, and universal access to public services. In the construction of the Swedish welfare state in the 1940s and 1950s, crime was considered a social pro- blem resulting from inequality and poverty. On an individual level, rehabilitation of the offender would become the ideal (Svensson & Gallo, 2018). The under- standing of crime as a response to a social situation did not, however, focus on victims of crime; in fact, the word brottsoffer (crime victim) was not used in the Swedish language until the end of the 1960s (Gallo & Svensson, 2019). The discussion around tort law also became influenced by ambitious social insurance strategies aiming to cover a broad range of social risks, including traf- fic, unemployment, and illness. Tort law was seen as one way of addressing dam- ages in a system of comprehensive government welfare programs and private in- surance. Many private insurance companies had started to offer a combination of separate insurance policies against, for instance, fire and burglary. Some pro- posals even outlined extensive reforms aiming to replace tort liability with social insurance (Heller, 1974; SOU 1950:16). In 1950, however, a commission appoin- ted to review tort law argued that restitution in criminal cases could be a valuable crime policy measure, as it could prevent crime, serve as an alternative criminal sanction, and give the perpetrator insights into the causes and consequences of criminal behavior (SOU 1950:16). Yet, their report expressed doubts against government compensation funds for victims of crime if these same protections were not offered to victims of other social risks. The 1950 report rejected the idea that criminal injuries compensation should be funded by fines “that entered into the state treasury due to offenses other than the one in question” (SOU 1950:16, p 84). It also highlighted the possible bene- fits of compensating for damages caused by persons in or discharged from prison, an idea already in the works. In the 1940s, a number of people submitted petitions to the Ministry of Social Affairs about damages caused by pupils who had devia- ted from state-run reformatory schools for delinquent youth. In response to these petitions, the government established so-called "escape schemes" which provided
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compensation for injury and damage caused by persons who had escaped from prisons, reformatory schools, and alcohol rehabilitation centers (prop. 1948:87; SOU 1977:36). In the bill, the government argued that it was unreasonable that people living close to an institution would be at higher risk than others to be subjected by crime (prop. 1948:87, p. 3). The escape schemes were part of a broad- er strategy to reduce surveillance and facilitate more open forms of corrections. As reflected in the bill:
Another reason for reimbursement in the present case is that both prison and other forms of care seek more open forms of care with less compulsion and surveillance. Escapes will happen to some degree, but the inconveniences that arise are small compared to the benefits of an open system (prop. 1948:87, p. 3-4).
The government used the legal terms målsägande and skadelidande which both translate to injured party to describe those who had suffered damages. The Swedish terms for “crime victim” or “victim” still do not exist in the Swedish language Penal Code. Damages were referred to as “crimes”; however, the government also used other terms, including “inconveniences” as in the quote above. In fact, the damage did not even have to been caused by crime for com- pensation to be paid (SOU 1977:36). Crime victimization was hence seen as one among many other social risks which should be addressed with a social insurance strategy. The escape schemes were administered by the National Board of Health and Welfare and funded by taxes. If private insurance did not cover the damages, the state mostly granted full compensation without means testing (SOU 1977:36).
Means-tested criminal injuries compensation In the early 1970s, a new the Tort Liability Act (1972:207) came into force. The introduction of the act questioned preventative aims of restitution and instead emphasized its function of a compensation system (Mannelqvist, 2006). Many private home insurance policies had also begun to include assault protection (överfallsskydd) that compensated for damages that the offending people could not pay. There were, however, still gaps in the insurance coverage, especially in lower socio-economic areas. As a response to these discrepancies, the govern- ment established a new means-tested criminal injuries compensation scheme un- der the Ministry of Justice (prop. 1971/72:1). The 1972 scheme was primarily established for those who could not get compensation from the offender, social insurance, or private insurance, and the financial situation of the applicant should be considered. Compensation aimed at “socially harrowing needs,” including in-
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Discussion Both the United States and Sweden first located victim compensation within so- cial welfare institutions. Hence, one could say that they were both children of pe- nal welfarism. However, a closer comparison between the early development of victim compensation policies in the two countries reveals a wide difference in the articulation of social welfare motivations and outcomes and their ties to carceral policies.
Table 1. Comparison of Victim Compensation Bills: United States (1965/1967) and Sweden (1971/1978)
United States (California) Sweden Name of Policy Aid to families with dependent children (1965); indemnification of (needy) victims (1967)
Compensation for personal injury due to crime (1971); criminal injuries compensation (1978) Definition of Injury
Crime is distinct from other social risks
Crime is considered a social risk
Eligibility for Compensation
Injury resulting in pecuniary loss as a direct result of a convicted violent crime; means-tested; tied eligibility to victim cooperation with apprehension and conviction
Means tested and police report (1971); injury resulting in a police report (or valid reason for such report not being made) (1978)
Financing State taxes supplemented by In- demnity Fund (paid to state through offender restitution)
Taxes
Person Receiving Compensation
Victim or victim’s family (1965); claimant (1967)
Crime victim and injured party
Perpetrator of Crime
Defendant Tortfeasor
Concerns with Regard to Victim
Financial compensation for costs incurred due to injury or death
Solidarity with victims of crime; col- lective financial responsibility for their personal injuries Concerns with Regard to Perpetrator
Financial restitution (to the state) for injury inflicted (in addition to incarceration)
Concern for rehabilitation (restitution seen as possibly inhibiting rehabilita- tion); support for open corrections
Reflective of the location of each national context within the welfare state contin- uum and that of crime policy (Gallo & Kim, 2016), the characteristics of each set of policies demonstrate the strength of Sweden’s social welfare and penal welfare
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foundations and the remedial nature of U.S. welfare policies. Within the context of a growing carceral state, U.S. victim compensation policies succumbed to punitive pressures. In the United States, rising anxieties regarding crime emerging in the 1960s began to weaken penal welfarist frameworks that characterized the post-war peri- od. Public sentiment favoring victims and wary of the rights of defendants were reflected in testimony and public statements accompanying the swift passage of California’s 1965 bill (Bernstein, 1972). The belief that victims constitute a spe- cial deserving category as opposed to one whose needs arise from an array of so- cial risks was reflected in the bill’s swift passage if not its operationalization. Cal- ifornia’s victim compensation bill established a precedent that would soon be fol- lowed by 28 other U.S. programs by the end of the 1970s, introducing these plans during a time of increasingly punitive crime policies (Young & Stein, 2004). Fundamental to early Swedish victim compensation policy was the belief that victimization to crime falls under the category of social risks, equivalent to the risks of accidents and natural disasters. Commitment to offender rehabilitation and open forms of correction was also evident in the development of victim com- pensation in Sweden. State support for victim compensation as a complement to offender restitution remained a foundation of Swedish policy.
Means-testing The California law placed the operations of victim compensation within a reme- dial social welfare framework and administrative body, one that began within se- verely restricted eligibility confined only to married couples with dependent chil- dren. Even with the expansion of eligibility, property prohibitions reflective of remedial U.S. welfare policies, sought to use this test as a way to reduce compen- sation. In Sweden, special compensation programs for victims were not seen as necessary, since various forms of universal social insurance provided compensa- tion for losses, irrespective of the cause (Tham, Rönnerling, & Rytterbo, 2011). While Sweden’s 1971 victim compensation law adopted a means-test for its be- neficiaries, this was done in order to expand compensation coverage beyond those who could afford private insurance to victims who did not have access to any other means of compensation through social insurance. At this time, victims at the low end of the socioeconomic ladder were at the center stage of discussion. Sweden’s 1978 act eliminated the means-test entirely; “crime victims”, in gene- ral, had now become a group in need of state support.
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Future historical developments would also show evidence of Sweden’s con- vergence towards a more punitive policy related to compensating victims of crime. Tort law has also clearly expanded into a more prominent role (Schutz, 2016). Similar to social insurance, criminal injuries compensation still relies on public funds (Mannelqvist, 2006b). However, the offending individual is now re- quired to pay back the money to the state if possible. The government has also established an alternative stream of funding based on offender fees; the 1994 Crime Victim Fund supports research and non-profit organizations. Despite the move towards the penal sphere in Sweden, victim compensation still retained many of its welfarist characteristics. Hence, the development of victim compen- sation in both countries retain alignment with their respective welfare and penal frameworks. These findings provide important empirical examples of the influence of both welfare and penal frameworks on a wide variety of social and crime policies. This comparative research also more specifically distinguishes political contexts and frameworks that might differentiate the policy consequences of seemingly similar policies. The research has further implications informing debates on convergence versus divergence of social welfare and penal policies between once widely con- trasting regimes.
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