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LII Special Projects: Compensation and Restitution for Victims of Crimes

I. Introduction

According to the deterrence theory of punishment, the criminal justice system punishes perpetrators of crimes in order to deter future crimes. Focusing on the punishment and deterrence of crime often leaves the victims of the crimes forgotten. Society generally accepts the ideas that crime should not pay and that victims of crimes should be compensated for their suffering, but those ideas prove problematic to implement.

The New York Legislature is committedhas a defined objective of to helping the victims of crimes committed in New York receive compensation for the wrongs done to them. Elkin v. Cassarino, 248 A.D.2d 35, 680 N.Y.S.2d 60139 (N.Y. App. Div. S.Ct., Apl. Div., 2^nd Dept., 1998.) (discussing Llegislative history of N.Y. C.P.L.R. §213-b discussed by court.). In recent years, lawmakers enacted a number of statutes aimed at increasing the compensation available both to victims in general (i.e., the crime victim’s assistance fee), as well as victims of specific crimes (i.e., restitution and statutes aimed at preventing criminal defendants from profiting from their crimes.).

Crime victims seeking compensation can look to both the civil and criminal systems. Under N.Y. C.P.L.R. §213-b, crime victims may bring civil suit in New York to recover for damages or losses resulting from a crime for which the perpetrator has been convicted. In addition to civil remedies, New York’s statutory restitution and reparation schemes compensate victims by allowing the court to order repayment for the actual losses suffered as part of the sentence without requiring a civil suit to be filed. New York was also the first state to enact a "Son of Sam" law which prevented criminals from profiting from the sale of media rights related to their criminal behavior. FinallAdditionally, New York’s mandatory crime victim assistance fee aims to shift some of the costs of the criminal system to the criminal by imposing a fee at sentencing which is applied to the administrative costs of running the criminal justice system. on criminal defendants as part of their sentencing to help the state raise revenues for paying the costs of the criminal system.

This article first examines how the court and legislature expand the term "victim" is being more broadly defined by both the courts and the Legislature to broaden expand the scope of civil compensation for crimes. The article will It then looks at how the general compensation scheme of the victim’s assistance fee interacts with the more specific schemes of compensation through restitution and reparation at sentencing. The article will then discuss New York’s "Son of Sam" law and the limits placed on such legislation by the criminal’s First Amendment right to tell his story. It will look at how the Legislature increased the likelihood of compensation by creating a new source of fundss and the limits placed on the Legislature by the First Amendment which protects a criminal’s right to tell their story.