Justice Department Rule on Crime Compensation Exceeds Its Authority, States Say

The Biden administration essentially wants states to give federal grant money to illegal aliens, convicted criminals, and people who contributed to their own victimization under the guise of “amending” the federal rules associated with the federal Victims of Crime Act.

Nineteen states have objected to the proposed rule changes, claiming that they exceed the statutory authority of the Department of Justice’s Office of Victims of Crime.

The state’s objections are well-founded, and the administration should withdraw the proposed rule in its entirety.  

History of Victims’ Compensation Programs

On April 23, 1982, President Ronald Reagan issued Executive Order 12360 establishing a task force on victims of crime. In December of that year, the task force issued its final report that included myriad recommendations at the state and federal level.

The report noted that although 36 states and the District of Columbia had established victim compensation programs, the task force recommended that Congress enact legislation “to provide federal funding to assist state crime-victim compensation programs.” 

In 1984, Congress passed the Victims of Crime Act. 

Today, as amended, the law authorizes grants to state victim-compensation programs, matching up to 75%  of a state’s aid to victims from the previous fiscal year. The law is unique in that it does not meddle with the states and tell them how to run their programs, but rather sets out minimum eligibility requirements to receive federal grant funding, to include services for victims of criminal violence, drunken driving, and domestic violence, and cover medical expenses, loss of wages, and funeral expenses.

The plain language of the law requires states to treat victims equally, notwithstanding their residency and the location where the crime took place. The state’s program cannot compensate a person who has been convicted of a federal crime and is late in paying a fine or restitution, and the program can’t deny compensation to a victim who is related to an offender or who lives with an offender, but does have rules designed to prevent unjust enrichment of the offender. 

As long as a state runs its state program consistent with these minimum federal strings, it is free to structure any other prohibitions or rules for its program and remain eligible for federal Victims of Crime Act funds. 

Biden’s Proposed Rule

On Feb. 5, however, the Office of Victims of Crime published a proposed rule in the Federal Register making several changes to the Victims of Crime Act, three of which drew the objections of 19 states.

First, the proposed rule prohibits a state from denying or reducing a claim by a person “on the basis of a victim’s alleged contributory conduct.” 

The Alabama attorney general’s comments opposing this change (signed by 18 other states) noted that an agency “has no power to act [unless] Congress authorizes it to do so by statute,” quoting FEC v. Cruz. 

The states noted that the Justice Department “lacks the authority to create new conditions on states receiving grants under the Act.” The law does not limit a state’s power from considering contributory conduct, and the proposed rule does not cite the “source of its authority” to impose this new rule.

In addition to the objection based on the plain language of the statute, Kansas’ attorney general noted that Office of Victims of Crime “has never before attempted to set such requirements.” While acknowledging that Congress has amended the Victims of Crime Act over the years, the Office of Victims of Crime “has never gone beyond the statutory language and conditioned funds on its own requirements.”

The states also argue that they did not agree to the new requirements when they entered into the matching program. As the Kansas comment noted, “The States, and victims in the States, depend on the federal matching program.” Kansas paid $2.049 million to 877 victims, of which $1.24 million came from federal funds. 

The rule also conflicts with state laws, as the Utah attorney general noted in his written comment. States have passed laws that limit or prohibit awards of scarce state resources to people who have contributed to their own victimhood.

Second, the proposed rule states that a state “may not deny compensation because of a victim’s or survivor’s incarceration, probation, or parole status, prior criminal history, or sentence.” 

The Office of Victims of Crime claims that this new restriction is necessary because of so-called “unjustified disparate treatment in the criminal justice system” of certain populations; i.e., minorities. The law expressly bans intentional discrimination based on race, color, religion, national origin, handicap or sex, but nothing in it bars the imposition of rules or practices that result in a disparate impact against any particular group. 

The states claim that this change also exceeds the department’s statutory authority and violates the Administrative Procedures Act in that Office of Victims of Crime not only did not provide any evidence to support the broad claim of disparate impact, but also failed to “explain why the perceived ill requires preventing all States from considering any criminal history whatsoever.” 

Third, the proposed rule provides that states may not “consider the Federal immigration status of a victim (or of a survivor of a victim) in determining eligibility for crime victim compensation.” 

The law makes no mention of immigration status for eligibility purposes. Furthermore, as Alabama mentioned in its comment, a federal court sided with Alabama in a prior lawsuit in which the state denied victim’s compensation to an illegal alien, concluding that “[Victims of Crime Act]-funded crime victim compensation payments are a ‘federal public benefit’ for which certain illegal aliens are not eligible.” 

State prohibitions on awarding grants to illegal aliens are, the states argue, well within their right to decide.

DOJ Rule Unmoored

As Utah concluded in its comment to the Biden Department of Justice, the “[Victims of Crime Act] Grant program is an example of state-federal partnership that works to benefit innocent victims of crime, not criminals.” 

Utah and the other states opposing these proposed changes are correct. The Utah attorney general summed it up best when he wrote that the proposed rules are “unmoored from the conditions that are in the statute.”

The Biden administration is unmoored from the mood the country if it thinks that Americans want these public funds to be given to criminals, illegal aliens, and those who contribute to their own victimization.