Testimony Before the Joint Committee on the Judiciary: House Bill 1614, An Act to Increase the Penalties for Corporate Manslaughter; and House Bill 1587/Senate Bill 1598, An Act Relative to Victims of Violent Crimes

Attorney General Martha Coakley
Tuesday, July 14, 2009
State House, Gardner Auditorium
As Prepared for Delivery

Good afternoon, Chairwoman Creem, Chairman O'Flaherty and Members of the Joint Committee. Thank you for the opportunity to testify on two bills that are legislative priorities for my office during this session: House Bill 1614, An Act to Increase the Penalties for Corporate Manslaughter, which I am co-sponsoring with Chairman O'Flaherty and Senate Assistant Majority Leader Joan Menard; and House Bill 1587/Senate Bill 1598, An Act Relative to Victims of Violent Crimes, which I am again co-sponsoring with Chairman O'Flaherty, Senator Stephen Buoniconti and a coalition of 16 other legislators from across the Commonwealth. Both bills seek to make important and necessary updates to existing statutes enforced by the Attorney General's Office.

H. 1614: An Act to Increase the Penalties for Corporate Manslaughter

House Bill 1614, An Act to Increase the Penalties for Corporate Manslaughter, is a straightforward bill that will update the current manslaughter statute by increasing the penalty for corporations charged with manslaughter.

As you know, in August 2007, Powers Fasteners, the New York company that marketed and distributed the epoxy anchor bolt system used in portions of the I-90 Connector Tunnel, was indicted in connection with the July 10, 2006 ceiling panel collapse that killed Milena Del Valle of Jamaica Plain. The Grand Jury returned an indictment charging Powers with one count of involuntary manslaughter. Our office resolved that case in December, 2008. However, that indictment, as well as other cases in which a corporation's gross negligence has resulted in an individual's death, helps to illustrate why a change in this law is necessary.

While the current sentence for individuals convicted of manslaughter may be imprisonment up to 20 years, corporations convicted of manslaughter cannot be subject to imprisonment. The only penalty faced by corporations is a monetary fine. Currently, the statute sets that fine at a mere $1,000. To provide the Committee with a historical perspective, the $1,000 fine was signed into law by Governor John Brooks on February 19, 1819 and has not been amended since.

Reasonable minds may differ as to what the appropriate penalty may be and, clearly, no monetary sum can compensate for the loss of an individual's life. However, I hope that we can all agree that $1,000 is a woefully inadequate penalty, especially for those who have lost a loved one. Accordingly, House Bill 1614 brings that penalty into the 21st century.

House Bill 1614 proposes increasing the penalty to $250,000 for a conviction for corporate manslaughter. A related bill, House Bill 1491, filed by Representative Peter Kocot, proposes a penalty of $1 million for corporate manslaughter perpetrated in connection with construction. I strongly believe that the penalty for a conviction of manslaughter perpetrated by a corporation should apply across the board, regardless of whether the circumstances are construction-related or otherwise. However, I defer to the Legislature as to the appropriate amount of that penalty. Again, I hope we can all agree that the current amount is hopelessly outdated and should be updated.

H. 1587/S. 1598: An Act Relative to Victims of Violent Crimes

The second bill that I am here to testify in favor of is House Bill 1587/Senate Bill 1598, An Act Relative to Victims of Violent Crimes. Like the corporate manslaughter legislation, An Act Relative to Victims of Violent Crimes proposes basic, though important, updates to an existing statute. This legislation, which was filed in both the House and Senate, is a revenue-neutral measure that updates Chapter 258C of the General Laws. Chapter 258C, which was enacted in 1993, authorizes the Attorney General's Office to provide eligible victims of violent crimes with assistance regarding certain expenses that arise as the direct result of a crime. This is commonly referred to as Victim Compensation.

Currently, the Victim Compensation statute provides that our office may cover funeral and burial expenses up to $4,000; mental health counseling to the direct victim of a crime, family members of homicide victims and child witnesses of violence; medical and dental care; and loss of income or financial support as the result of a crime-related death or injury, for eligible victims and their families. The legislation before you today updates the law to expand some of these categories, add new categories and, generally, provide additional tools to better enable our Victim Compensation and Assistance Division to more completely respond to the needs of victims of violent crimes and their family members. During Fiscal Year 2008, our office received 1,318 new claims and made payments on 859 claims. During Fiscal Year 2009, we received 1,419 new claims and made payments on 904 claims.

In drafting this legislation, we were careful to balance the diverse needs of the victims that come to our office for help with the dire fiscal realities faced by the Commonwealth today. To that end, I note for the Committee two important features of the legislation.

First, this legislation is drafted with a careful eye toward maximizing the available federal reimbursement. Under the federal Victims of Crime Act ("VOCA") Victim Compensation Grant Program, states are reimbursed for covering victims' expenses as those expenses are delineated within the federal VOCA regulations. All categories of expenses that this bill seeks to add or expand are federally reimbursable under VOCA.

Second, while the bill broadens the assistance options available to victims of violent crimes, it does so without raising the existing cap on victim compensation set by statute in the maximum amount of $25,000 per claimant. Accordingly, the bill will not require additional funding for victim compensation and is revenue neutral.

Nevertheless, the bill expands the options available to victims under the statute in meaningful ways.

In the first instance, the bill raises the cap on funeral and burial expenses available to the families of homicide victims from $4,000 currently, to $6,500. This change reflects the unfortunate reality that it costs more to bury a loved one today than it did in 1993, the year the Victim Compensation law was enacted. In fact, the average for funeral-related costs submitted to our office in 2006 was $6,395, not including the cost of markers and other burial-related expenses. In Fiscal Year 2008, we paid victim compensation for funeral and burial expenses on 154 new homicide claims.

In addition to the costs directly associated with the funeral and burial, the legislation also carves out a category for "ancillary expenses" associated with the interment of a victim whose death is the direct result of a crime. These expenses are capped at $800, and provides assistance with the cost of basic needs, such as memorial markers or urns; transportation of the victim's body to the location of interment; or travel of a legal guardian or family member to accompany the body of a victim to the final place of interment.

Second, the bill adds non-offending parents or legal guardians of child victims to the category of individuals for whom approved mental health counseling is available. Currently, mental health counseling is available only to the direct victim of a crime, family members of homicide victims, and child witnesses of violence. When a child is the victim of sexual abuse at the hands of another parent or family member, the non-offending parent or guardian also suffers great trauma and may need counseling as well. By allowing compensation for non-offending parents of child victims of violence, we will encourage these caretakers to seek the support they are likely to need in raising their children and healing the psychological wounds they themselves have suffered.

Last, the legislation adds three categories of compensable expenses that do not currently exist under the Massachusetts victim compensation statute. Each of these categories is reimbursable under the federal VOCA and each provides critical assistance to victims and their families.

The first category is crime scene clean-up. The bill will authorize compensation for the reasonable costs associated with crime scene clean-up of a residence or private vehicle, up to $1,500. Currently, victims and, in the case of homicides, family members, are left to either clean the scene themselves or pay the cost of clean-up. Clearly, this is a terrible task under any circumstances. Presently, 23 states and the District of Columbia compensate for crime scene clean-up in some form. We believe that Massachusetts should join our sister states in providing compensation for crime scene clean-up.

Next, the legislation authorizes compensation up to $500 for the replacement, repair or installation of locks or other security measures to the victim or a family member residing with a victim at the time a crime is committed. Currently, 13 states compensate victims for the costs of security measures in amounts ranging from $500 up to $2,500.The final category added to the statute by this bill authorizes our office to provide compensation in an amount up to $250 to replace or restore personal items, such as clothing or bedding, taken as evidence or damaged during an investigation.

The Victim Compensation fund is and always has been a fund of last resort. As such, the fund assists with expenses that are not covered by other sources such as homeowner's insurance, renter's insurance, automobile insurance and worker's compensation. Each of these sources of funding must be exhausted before a claimant may be eligible for Victim Compensation. In addition to assisting victims in understanding their rights as a crime victim and determining what expenses may be eligible for compensation, our office works with victims to assess what other resources are available to assist them. The bill before the Committee further clarifies that the Victim Compensation fund administered through our office is a fund of last resort.

It is my sincere hope that the Committee will give both H. 1614, An Act to Increase the Penalties for Corporate Manslaughter and H. 1587/S. 1598, An Act Relative to Victims of Violent Crimes favorable recommendations.

Other Legislation: H. 1728, An Act Relative to Gender-Based Discrimination and Hate Crimes and S. 1559, An Act to Protect and Enhance the Rights of Child and Adult Victims and Witnesses of Crimes

In closing, I also want to briefly express my support for two other bills that are being heard by the Committee today, House Bill 1728, An Act Relative to Gender-Based Discrimination and Hate Crimes and Senate Bill 1559, An Act to Protect and Enhance the Rights of Child and Adult Victims and Witnesses of Crimes.

House Bill 1728 clarifies and makes explicit in our Massachusetts anti-discrimination and hate crime law that persons are entitled to equal protection under the law, regardless of their gender identity or expression. I previously provided the Committee with a letter detailing the basis for my support, and I know this will be a busy hearing, so I will be brief and refer you to that letter.

As Attorney General, I am committed to protecting the civil rights of all people in the Commonwealth, and to enforcing our anti-discrimination and hate crime laws to the fullest extent. Regrettably, transgender persons have been subjected to significant discrimination and, at times, violence due to misconceptions and prejudice regarding gender identity or expression. The protections provided for by House Bill 1728 have been recognized in decisions by Massachusetts state courts and the Massachusetts Commission Against Discrimination. I firmly believe that codification of these protections will ensure more consistent and uniform application of anti-discrimination law and will provide clarity to Massachusetts employers, landlords, businesses, lenders, state agencies and schools to ensure that they protect against discrimination and combat violence and harassment based on gender identity or expression. The Commonwealth should join the 12 states, 81 counties nationwide, and many businesses, including Fortune 500 companies, headquartered in Massachusetts whose laws and policies already recognize gender identity as a protected category.

Finally, I wish to state my support for Senate Bill 1559, An Act to Protect and Enhance the Rights of Child and Adult Victims and Witnesses of Crimes, also known as the Victim's Bill of Rights. Historically, Massachusetts has been at the forefront of protecting the rights of victims and witnesses. In fact, when our Victim's Bill of Rights was enacted over 20 years ago, it was the most comprehensive statute of its kind in the United States. The good news is that, today, every state has joined Massachusetts in enacting statutes that safeguard the basic rights and protections of victims of crimes. However, updates are necessary to ensure that the Massachusetts Victim's Bill of Rights remains responsive to the evolving needs of victims and witnesses.

I am particularly concerned that more and more courthouses are eliminating secure waiting areas for victims and witnesses. One of the provisions of Senate Bill 1559 mandates that victims, their family members, and witnesses be provided with a secure waiting area or room. In recent years there has been a rise in incidents of witness intimidation in the Commonwealth, particularly in cases of gang violence and domestic violence. Because of this, witnesses are afraid to come forward out of fear of retribution. Providing a secure waiting area for victims and witnesses in courthouses is a step toward making the process easier for all witnesses and ensuring the fullest participation in the court process.

I hope that the Committee will give both H. 1728 and S. 1559 favorable recommendations.

Thank you again for the opportunity to testify before the Committee on these important matters. I would be happy to take any questions the Committee has regarding any of the bills I mentioned.