Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P25 potx

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Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P25 potx

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select 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 REAGAN and GEORGE H.W. BUSH called 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 constitutional SEPARATION OF POWERS had 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 CARE employees. They chal- lenged a line-item veto that President BILL CLINTON had 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 IMMIGRATION and 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 228 VETO VEXATIOUS LITIGATION A legal action or proceeding initiated maliciously and without PROBABLE CAUSE by 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 the COMMON 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 impose s 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 the FAMILY 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 relatio nship. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION VICARIOUS LIABILITY 229 the driver is found to be negligent. Because the company will automatically be found liable if the driver is negligent, respondeat superior is a form of STRICT 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 Emp loyment; Tort Law. VICE A fault, flaw, defect, or imperfection. Immoral conduct, practice, or habit. In CIVIL 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 , and OBSCENITY. 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 hasresidedintheUnitedStates foratleast14 years. The ELECTORAL COLLEGE chooses 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 the TWELFTH AMENDMENT to 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 functi on 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 TYLER became 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 Tyl er 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 the TWENTIETH AMENDMENT, if a president-elect dies before assuming office, the vice president elect becomes president. Under the TWENTY-FIFTH AMENDMENT, if the presi- dent is removed from office, dies, or resigns GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 230 VICE during 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 President GERALD R. FORD became president when RICHARD M. NIXON resigned in the face of IMPEACHMENT charges. The Twenty-fifth Amendment also provi des 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 President RONALD REAGAN underwent cancer surgery, he transferred power to Vice President GEORGE H.W. BUSH for 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 hous es of Congress. This situation oc- curred twice during the Nixon and Ford administrations. In 1973, President Nixon appointed Gerald R. Ford to replace Vi ce President Spiro T. Agnew, who resigned amidst criminal BRIBERY charges. 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 REGENTS of the Smithsonian Institution. Although the vice pre sident 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 GORE and 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, T ERRORIST 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION VICE PRESIDENT 231 position. 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 to VICTIMS OF CRIME.In addition, the JUSTICE DEPARTMENT’s Office for Victims of Crime (OVC), which was established in 1984 under the VICTIMS 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 232 VICTIM-ASSISTANCE PROGRAM reach 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 info rmation, 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 examp le, 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 appreh ended. 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 LAW systems 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 prosec u- 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 the NATIONAL 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION VICTIMS OF CRIME 233 response, the JUSTICE DEPARTMENT, under President RONALD REAGAN, set up the President’sTaskForce on VICTIMS OF CR IME. 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 the VICTIM 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, co dified 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 vict im 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 encour age 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 intoaspecial ESCROW account 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 the VICTIMS OF CRIME ACT OF 1984 (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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 234 VICTIMS OF CRIME The U.S. SUPREME COURT struck 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 crimin al 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 PAROLE hearing. 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- MENT could be based on subjective feelings for the victim rather than objective criteria indicating the defendant’sguilt.InPayne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), however, the Court reversed itself and held that the EIGHTH AMENDMENT does 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 inma te’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’s17stateprisonsand83 cou nty jails. To obtain information, a person dials a toll-fre e 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’stransferor 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). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION VICTIMS OF CRIME 235 the 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 service s, 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 compen sation 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 DEPARTMENT under the auspices of Presi- dent RONALD 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 Vi ctim’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 INVESTIGATION to 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 compensa tion; 4) whether the program makes compensation awards to vic- tims who are nonresidents of the state on the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 236 VICTIMS OF CRIME ACT OF 1984 basis 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 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 ev aluation, compliance efforts, and training and technical assistance services to eligible victim-assistance programs. The fund also has recently expanded to apply to potential victims of TERRORISM and 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 PROPERTY worth 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION VIDAL V. GIRARD’ S EXECUTORS 237 . 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION VICE. nonresidents of the state on the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 236 VICTIMS OF CRIME ACT OF 1984 basis of the same criteria that are used to make awards to victims who are residents of. planning to sell his story of serial killing. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 234 VICTIMS OF CRIME The U.S. SUPREME COURT struck down the New York law in Simon & Schuster

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