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1. CRIMINAL LAW: CRIME VICTIMS' RIGHTS DURING CRIMINAL INVESTIGATIONS? APPLYING THE
CRIME VICTIMS' RIGHTS ACT BEFORE CRIMINAL CHARGES ARE FILED, 104 J. Crim. L. & Criminology
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DAVID SCHOEN
CRIMINAL LAW: CRIME VICTIMS' RIGHTS DURING CRIMINAL
INVESTIGATIONS? APPLYING THE CRIME VICTIMS' RIGHTS ACT BEFORE
CRIMINAL CHARGES ARE FILED
Reporter
104 J. Crim. L. & Criminology 59 *
Winter, 2014
Length: 23898 words
Author: PAUL G. CASSELL*, NATHANAEL J. MITCHELL** and BRADLEY J. EDWARDS***
* Ronald N. Boyce Presidential Professor of Criminal Law, S.J. Quinney College of Law at the University of Utah.
** Associate, Snow, Christensen & Martineau (Salt Lake City, Utah).
*** Partner, Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman (Fort Lauderdale, Fla.). The authors thank Douglas Beloof,
Patricia Cassell, Meg Garvin, Jay Howell, James Marsh, and Stephen Twist for their assistance with this Article.
Highlight
This Article addresses whether crime victims should have rights during criminal investigations, using the Crime Victims'
Rights Act (CVRA) as the focal point for our discussion. This is a critical issue, as many criminal cases may never proceed to
formal charging. If crime victims have no rights during criminal investigations, then many crime victims will never have any
rights at all.
The issue of whether crime victims have rights in the criminal justice process recently came to a head when the Justice
Department released a memorandum contending that the CVRA does not extend crime victims any rights until prosecutors
choose to file formal criminal charges. This led the CVRA's Senate cosponsor, then-Senator Jon Kyl, to fire off an angry letter
to the Justice Department attacking its position. In our Article, we side with the Act's cosponsor. We believe that, properly
understood, the CVRA does extend crime victims' rights during criminal investigations.
Our Article proceeds in four parts. First, it highlights the importance of applying the Act before the formal filing of charges by
illustrating how dozens of victims in a notorious federal sex abuse case were deprived of the ability to participate meaningfully
in the criminal process when federal prosecutors narrowly interpreted their responsibilities under the Act. Second, the Article
reviews the purpose, text, structure, and history of the CVRA, concluding that they all support the conclusion that crime victims
have rights during criminal investigations. Third, our Article critiques the Department's memorandum, demonstrating that the
Department's analysis is unpersuasive. Fourth and finally, the Article provides a specific approach for determining when rights
should attach - specifically when federal law enforcement agencies have identified a crime with sufficient precision to send a
"target" letter to a criminal defendant. We also observe that federal and state prosecutors have already accorded rights to
victims before formally filing charges, which further undermines the Department's overly narrow construction of the Act.
Text
DAVID SCHOEN
104 J. Crim. L. & Criminology 59, *59
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[*61]
Introduction
In recent years, federal and state enactments have given crime victims extensive rights to participate in criminal cases. Many of
these rights apply only after the filing of criminal charges, such as the victim's right to be heard during court proceedings. A
crime victim's right to deliver an impact statement at sentencing, for instance, can only be exercised after a prosecutor has filed
charges against a defendant and obtained a conviction. Other rights, however, can apply even before the formal filing of
charges. As one example, the Crime Victims' Rights Act (CVRA) 1 extends to federal crime victims the right to "confer" with
prosecutors. But can victims exercise this right before charges have been filed?
This question has tremendous practical importance. In many cases, prosecutors negotiate pleas well before any charges are ever
drafted. If crime victims' rights enactments do not extend rights to victims until the formal filing of charges, then crime victims
can be effectively excluded from the plea bargaining process. Yet the exclusion of victims in early stages of a criminal case
affects more than just the content of a plea deal. Crime victims will also lose other important rights in the process if the formal
filing of charges is the necessary trigger for those rights. If, for example, prosecutors work out a nonprosecution agreement
with an offender, they need not notify his victims of what they are doing or of the fact that potential charges will never be filed.
The issue of pre-charging rights has most prominently surfaced in connection with federal cases. In 2010, the Department of
Justice's Office of Legal Counsel (OLC) weighed in on the issue and released a legal opinion arguing that victims of federal
crimes have no CVRA rights during a federal criminal investigation. 2 The Justice Department took the position that rights
under the CVRA do not apply until prosecutors formally initiate criminal proceedings by filing a complaint, information, or
indictment. The Department claims to find support for that limiting interpretation of the statute in its plain language and
legislative history.
Shortly after the Department released its opinion, one of the CVRA's congressional sponsors, then-Senator Jon Kyl, sent a letter
to Attorney General Eric Holder strenuously objecting to the Department's conclusions. Senator Kyl directly stated his view
that "when Congress enacted the [*62] CVRA, it intended to protect crime victims throughout the criminal justice process -
from the investigative phases to the final conclusion of a case." 3 Senator Kyl contested the Department's analysis of the statute
and, in particular, its use of statements from him during Congress's consideration of the CVRA.
This Article sides with the CVRA's cosponsor and concludes that crime victims' CVRA rights attach before formal charging.
Both the CVRA's plain language and its legislative history lead inexorably to this conclusion, as every court that has considered
this issue has concluded. This Article also contends that, as a matter of sound public policy, crime victims should have rights
before the formal filing of criminal charges.
This Article proceeds in four parts. Part I frames the issues under discussion by defending the importance of extending rights to
crime victims during criminal investigations. Part I also provides background on victims' rights and gives a concrete illustration
of a case in which the question of pre-charging rights for crime victims has arisen - specifically, the Jeffrey Epstein sex abuse
case before a federal court in Florida. In that case, girls victimized by Epstein have argued that they should have been consulted
about a federal nonprosecution agreement; Department attorneys have responded that because prosecutors never filed charges,
government officials had no formal obligations to inform the girls.
1
Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, Pub. L. No. 108-405, 118
Stat. 2260, 2261-65 (2004) (codified as amended at 18 U.S.C. § 3771 (2012) and 42 U.S.C. § 10603(d)-(e) (2006)).
2
The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004, 35 Op. O.L.C. 1 (Dec. 17, 2010) [hereinafter OLC
CVRA Rights Memo], available at http://goo.gl/fHmCL4.
3
Letter from Jon Kyl, U.S. Sen., to Eric H. Holder, Jr., Att'y Gen. (June 6, 2011), reprinted in 157 Cong. Rec. S3608 (daily ed. June 8, 2011)
(statement of Sen. Jon Kyl).
DAVID SCHOEN
104 J. Crim. L. & Criminology 59, *62
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Part II reviews the CVRA's purpose, text, structure, and legislative history. This review establishes that the CVRA extends
rights to crime victims before formal charges are filed.
Part III critiques OLC's position that the CVRA extends rights to victims only after prosecutors have lodged charges in court.
The Department's proffered arguments do not withstand close scrutiny, particularly in light of the fact that the CVRA covers
federal agencies involved in the "detection" and "investigation" of crime, 4 and specifically authorizes crime victims to file
CVRA motions in situations where "no prosecution is underway." 5
Part IV then proposes a specific approach for determining when crime victims' CVRA rights attach. This Part explains that the
rights should attach when federal law enforcement or prosecuting agencies have identified a federal crime and a particular
victim with sufficient precision that they would send a "target" letter to a criminal defendant in similar circumstances. If
prosecutors have sufficient information to provide notice [*63] to a potential criminal of his rights, they can do the same for
his victims. This Part also notes that the Department of Justice and state prosecutors already successfully provide rights to
victims before charging. This successful experience strongly suggests that providing rights to victims early in the criminal
justice process will not be unduly burdensome.
I. The Issue of Rights for Crime Victims During Criminal Investigations
To consider the question of whether victims should have rights during criminal investigations, some understanding of the
underlying purposes of victims' rights enactments will be useful. These enactments are typically designed to make victims
participants in all phases of the criminal justice process. 6 Congress drafted the CVRA, for example, broadly to make crime
victims participants in criminal cases. The Jeffrey Epstein sex abuse case demonstrates the importance of victim participation
even before charges are filed.
A. A BRIEF HISTORY OF CRIME VICTIMS' RIGHTS
The crime victims' rights movement has sought to make crime victims important participants in the criminal justice process.
The movement began in the wake of the Warren Court revolution, which extended new rights to criminal defendants. 7 With
the courts paying increasing attention to criminal defendants, crime victims' advocates began to argue that the victims
themselves had been overlooked. 8 The movement gained great visibility in the early 1980s when President Ronald Reagan
appointed the President's Task Force on Victims of Crime. 9 The Task Force published a report concluding that "the criminal
justice system has lost an essential balance… . The victims of crime have been transformed into a group oppressively burdened
by a system designed to protect them. This oppression must be redressed." 10
The Task Force chronicled how crime victims were treated in all stages of the criminal justice process, from the police
investigation through [*64] court proceedings, and ultimately to any parole or other release of the criminal. The Task Force
4
18 U.S.C. § 3771(c)(1).
5
Id. § 3771(d)(3).
6
See Douglas E. Beloof, Paul G. Cassell & Steven J. Twist, Victims in Criminal Procedure 3-39 (3d ed. 2010) (describing reforms from a
historical perspective); see also, e.g., 18 U.S.C. § 3771(a) (2012).
7
See Beloof, Cassell & Twist, supra note 6, at 3-39 (describing the history of victims' rights in American law and the early days of the
modern movement).
8
See, e.g., William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim L. Rev.
649, 651-55 (1976).
9
Exec. Order 12,360, 47 Fed. Reg. 17,975 (Apr. 27, 1982); see also President's Task Force on Victims of Crime, Final Report, at ii (1982).
10
President's Task Force on Victims of Crime, Final Report, supra note 9, at 114.
DAVID SCHOEN
104 J. Crim. L. & Criminology 59, *64
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then made a series of recommendations for all criminal justice agencies, including the police, prosecutors, and the courts. 11
The recommendations were designed to allow crime victims to receive information about, and to participate in, criminal cases.
In its most far-reaching recommendation, the Task Force proposed amending the U.S. Constitution to protect victims' rights. 12
The proposed amendment would have built on existing constitutional rights for criminal defendants by extending similar rights
to crime victims. 13
After the publication of the report, crime victims' advocates secured the passage of a series of state constitutional and
legislative reforms. These measures guaranteed victims' rights in the criminal process, such as the right to be notified of court
proceedings, to attend those proceedings, and to speak at appropriate points in the process, such as plea bargaining and
sentencing. The measures were embodied in state statutes and, in more than thirty states, state constitutional "bills of rights" for
crime victims. 14 While many of the measures had narrow participatory rights, 15 some of the amendments also contained
more open-ended language, promising victims a right to fair treatment "throughout the criminal justice process." 16
After successfully passing many state constitutional amendments, crime victims' rights advocates sought to achieve the Task
Force's broadest recommendation: to secure protection for victims' rights in the U.S. Constitution. In 1996, victims' advocates
proposed a Victims' Rights Amendment in a Rose Garden ceremony attended by President Bill Clinton. 17 The proposed
amendment contained a list of rights for crime victims, largely paralleling the rights contained in state victims' rights [*65]
amendments. 18 Congress considered the amendment several times, but it never obtained the requisite two-thirds support in
both houses to secure the Amendment's approval. 19 Critics quarreled not so much with the goals of the amendment but rather
with the necessity of constitutionalizing such rights. 20
B. THE CRIME VICTIMS' RIGHTS ACT
Unable to obtain the necessary supermajority to pass a federal constitutional amendment, in April 2004, crime victims' rights
advocates decided to focus on federal legislation protecting crime victims. In exchange for backing off from their efforts to
pass a constitutional amendment, crime victims' advocates received near-universal congressional support for a "broad and
11
See id. at 56-82.
12
Id. at 114.
13
Id. at 114-15.
14
For a map depicting the states with (and without) such amendments, see State Victim Rights Amendments, Nat'l Victims' Constitutional
Amendment Passage, http://goo.gl/znI4YW (last visited Nov. 26, 2013); for discussion, see infra Part IV.D (discussing legislative reforms in a
number of states).
15
See, e.g., Cal. Const. art. I, § 28; Mich. Const. art. I, § 24; N.C. Const. art. I, § 37. For a detailed discussion of how one state constitutional
amendment is intended to operate, see generally Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's
Victims' Rights Amendment, 1994 Utah L. Rev. 1373.
16
E.g., Ariz. Const. art. II, § 2.1(A)(1); Mich. Const. art. I, § 24(1); Tex. Const. art. I, § 30(a)(1); see Cal. Const. art. I, § 28(b)(1)
("throughout the criminal or juvenile justice process").
17
John M. Broder, Clinton Calls for Victims' Rights in Constitution, L.A. Times, June 26, 1996, at A1. For detailed discussions of the
legislative efforts, see Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of
the Crime Victims' Rights Act, 2005 BYU L. Rev. 835, 847-50.
18
See Cassell, supra note 17, at 848-49. For the pros and cons of the amendment as originally introduced, compare Paul G. Cassell,
Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479 [hereinafter Cassell, Barbarians at
the Gates?], and Steven J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect Things, 1999 Utah L. Rev. 369, with
Robert P. Mosteller, The Unnecessary Victims' Rights Amendment, 1999 Utah L. Rev. 443. For a more recent discussion of a newer version
of the amendment, see Paul G. Cassell, The Victims' Rights Amendment: A Sympathetic, Clause-by-Clause Analysis, 5 Phoenix L. Rev. 301
(2012).
DAVID SCHOEN
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encompassing" statutory victims' bill of rights. 21 Victims' advocates sought to expand on the protections found in other
previously-enacted victims' rights statutes, including, notably, the Victims' Rights and Restitution Act of 1990. 22 That statute
had also included a bill of rights for crime victims, yet because of limited enforcement mechanisms, crime victims had been
unable to secure court protection of the rights listed in the statute. 23
The statute that Congress passed to solve these problems - the Crime Victims' Rights Act of 2004 - gave victims "the right to
participate in the [*66] system." 24 It extended broad rights to crime victims, including "the right to be treated with fairness
and with respect for the victim's dignity and privacy" 25 and "the reasonable right to confer with the attorney for the
Government in the case." 26 It also commanded that these rights must be afforded by the Justice Department "and other
departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime." 27 The CVRA
also contained specific enforcement mechanisms. The Act provided that rights can be "asserted" by "the crime victim or the
crime victim's lawful representative, and the attorney for the Government … ." 28 The courts were also required under the Act
to "ensure that the crime victim is afforded the rights" given by the law. 29
Congress appeared to have at least two goals in mind in passing the CVRA. The first was simply to ensure that crime victims
understood what was happening in the criminal justice process. This goal is apparent from the fact that the CVRA gives crime
victims rights to notification about various court hearings, as well as more general rights to confer with prosecutors and to be
treated with fairness. 30 The CVRA's Senate sponsors explained:
In case after case we found victims, and their families, were ignored, cast aside, and treated as non-participants in a critical
event in their lives. They were kept in the dark by prosecutors too busy to care enough, by judges focused on [defendants']
rights, and by a court system that simply did not have a place for them. 31
In passing the CVRA, Congress sought to change the system's obliviousness to crime victims that often "left crime victims and
their families victimized yet again." 32
19
Hon. Jon Kyl et al., On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn
Crime Victims' Rights Act, 9 Lewis & Clark L. Rev. 581, 588-91 (2005).
20
Proposed Constitutional Amendment to Protect Crime Victims, S.J. Res. 1: Hearing Before the S. Comm. on the Judiciary, 108th Cong.
128-29 (2003) (statement of Sen. Patrick Leahy); see also Steven J. Twist & Daniel Seiden, The Proposed Victims' Rights Amendment: A
Brief Point/Counterpoint, 5 Phoenix L. Rev. 341, 356, 378 (2012) (illustrating that the necessity dispute has endured to the present day).
21
150 Cong. Rec. 7295 (2004) (statement of Sen. Dianne Feinstein); see also Kyl et al., supra note 19, at 591-93.
22
Victims' Rights and Restitution Act of 1990, Pub. L. No. 101-647, 104 Stat. 4820 (codified as amended at 42 U.S.C.§§10601, 10606-07
(2006)).
23
See, e.g., United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997) (per curiam) (refusing to enforce a victim's right to attend a trial);
Cassell, Barbarians at the Gates?, supra note 18, at 515-22 (discussing McVeigh).
24
150 Cong. Rec. 7297; see 18 U.S.C. § 3771 (2012). For a description of victim participation, see Beloof, Cassell & Twist, supra note 6, at
728-33.
25
18 U.S.C. § 3771(a)(8).
26
Id. § 3771(a)(5).
27
Id. § 3771(c)(1).
28
Id. § 3771(d)(1).
29
Id. § 3771(b)(1).
30
See id. § 3771(a).
31
150 Cong. Rec. 7296 (2004) (statement of Sen. Dianne Feinstein).
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A second overarching purpose of the CVRA was to allow crime victims to play a role in the criminal justice process. Through
the CVRA, Congress intended to make victims "independent participants" in the criminal justice process. 33 The CVRA
extends to crime victims a series of "rights" in the criminal justice process - rights that the victims have [*67] independent
standing to assert. 34 Congress viewed these provisions as establishing a victim's right "to participate in the process where the
information that [victims] and their families can provide may be material and relevant … ." 35
Congress appears to have had both intrinsic and instrumental reasons for wanting crime victim participation. Congress clearly
thought that such participation was valuable in its own right. Senator Kyl embodied this belief and explained his decision to
become involved in the crime victims' rights movement because of his discovery that victims:
were suffering through the trauma of the victimization and then being thrown into a system which they did not understand,
which nobody was helping them with, and which literally prevented them from participation in any meaningful way. I came to
realize there were literally millions of people out there being denied these basic rights … . 36
But Congress also thought crime victim participation in the criminal justice system could be instrumentally useful. For
example, in protecting a victim's right to be heard by those determining a defendant's sentence, a victim might be able to
provide important information that could alter that sentence. As a result, the sentence might reflect a fuller appreciation of the
danger posed by a defendant, and the judge might take appropriate steps to prevent others from being victimized. 37
Congress also intended to ensure that crime victims were not revictimized in the criminal justice process - that is, that they
would not suffer what scholars have called "secondary harm" in the process. 38 The concern is that victims suffer when they
are excluded from the criminal justice process. Congress sought to end that suffering by making victims meaningful
participants in criminal cases. 39
C. AN ILLUSTRATION OF THE PRE-CHARGING ISSUE: THE JEFFREY EPSTEIN CASE
Given the potentially expansive scope of victims' rights under both state provisions and the CVRA, a critical question arises
about how to apply them: Do the rights come into existence only after prosecutors formally file [*68] criminal charges? Or do
they attach at some earlier point in the process? Does v. United States, a federal case in the U.S. District Court for the Southern
District of Florida, usefully illustrates the issue. 40 In that case, the U.S. Attorney's Office for the Southern District of Florida
32
Id.
33
Id. at 7302 (statement of Sen. Jon Kyl).
34
Compare 18 U.S.C. § 3771(d), with Susan Bandes, Victim Standing, 1999 Utah L. Rev. 331, 344-45 (illustrating the debate surrounding
victim standing prior to adoption of the CVRA).
35
150 Cong. Rec. 7296 (statement of Sen. Dianne Feinstein).
36
Id. at 7298 (statement of Sen. Jon Kyl).
37
Id.
38
See, e.g., Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 294-96;
Richard A. Bierschbach, Allocution and the Purposes of Victim Participation Under the CVRA, 19 Fed. Sent'g Rep. 44, 46 (2006).
39
150 Cong. Rec. 7298 (statement of Sen. Jon Kyl).
40
Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011). In the interest of full disclosure, two of the authors of this Article (Cassell
and Edwards) are co-counsel for the victims in this case. The statement of the facts in this Article draws heavily on the victims' allegations as
they have detailed in their pending motion for summary judgment in the case. See Jane Doe #1 & Jane Doe #2's Motion for Finding of
Violations of the Crime Victims' Rights Act and Request for a Hearing on Appropriate Remedies at 3-23, Does, 817 F. Supp. 2d 1337 (No.
9:08-cv-80736-KAM) [hereinafter Jane Doe Motion] (providing fifty-three proposed facts in the case). The U.S. Attorney's Office has
generally disputed some of these allegations without offering specifics as to what happened. See, e.g., United States' Response to Jane Doe #1
& Jane Doe #2's Motion for Finding of Violations of the Crime Victim Rights Act and Request for a Hearing on Appropriate Remedies at 34-
43, Does, 817 F. Supp. 2d 1337 (No. 9:08-cv-80736-KAM) [hereinafter United States' Response]. As of this writing, Epstein has declined to
intervene in the case to dispute the allegations.
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104 J. Crim. L. & Criminology 59, *68
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developed considerable evidence that Jeffrey Epstein, a billionaire with extensive political and social connections, 41 had
sexually molested more than thirty young girls between 2001 and 2007 at his West Palm Beach mansion. 42 The U.S.
Attorney's Office entered into contentious plea negotiations with Epstein over how the case should be resolved. The
prosecutors initially sought a resolution that would have required Epstein to plead guilty to at least a felony sex offense. After
pressure from Epstein, for reasons that have never been clearly explained, 43 the U.S. Attorney's Office agreed to enter into a
nonprosecution agreement. Under the agreement, the U.S. Attorney's Office agreed not to prosecute him and, in exchange,
Epstein agreed to plead guilty to two state felonies for soliciting prostitution with a minor. After entering those guilty pleas,
Epstein was sentenced to only eighteen months in state jail. 44 No federal charges were ever filed and [*69] Epstein spent
much of the jail term on "work release" to his luxurious office. 45
The U.S. Attorney's Office did not tell Epstein's victims about the nonprosecution agreement until well after it had taken effect.
To the contrary, even after the nonprosecution agreement had been signed, the Office continued to tell the victims that the case
was still "under investigation" and that they should be "patient." 46 When the victims learned of the agreement, two of them
(Jane Doe Number One and Jane Doe Number Two) filed suit in federal court under the Crime Victims' Rights Act, arguing
that the prosecutors had violated their CVRA right to confer as well as their right to be treated fairly. 47 The victims contended
that prosecutors should have conferred with them about the nonprosecution agreement before it became final.
In response, the U.S. Attorney's Office argued primarily that it was under no obligation to extend the victims any rights under
the CVRA. It was the Government's blunt position that "CVRA rights do not attach in the absence of federal criminal charges
filed by a federal prosecutor." 48 In short, the Government argued it was not required to confer in any way with the victims, or
even treat them fairly, because the CVRA was not yet in play. The issue is thus squarely framed: Is the Government correct in
its assertion that it has no CVRA obligations in cases like the Epstein case where federal prosecutors never lodged federal
charges against a suspect? In view of the CVRA's prominence, resolution of this issue may shed important light on the nature of
crime victims' enactments and the breadth of the role that crime victims should have in the criminal justice process.
II. The CVRA's Application Before Formal Charges are Filed
To analyze the issue of whether the CVRA extends rights to crime victims before prosecutors have formally filed charges, it is
useful to look at the CVRA's purposes, language, and judicial interpretations. This Part looks at each of these three issues in
turn.
41
See, e.g., Paul Harris, Prince Andrew's Link to Sex Offender Jeffrey Epstein Taints Royalty in US, Guardian (Mar. 12, 2011),
http://goo.gl/0I4vAE; Landon Thomas Jr., Jeffrey Epstein: International Moneyman of Mystery, N.Y. Mag., http://goo.gl/11Cayc (last visited
Nov. 26, 2013).
42
See Jane Doe Motion, supra note 40, at 3-4; Abby Goodnough, Questions of Preferential Treatment Are Raised in Florida Sex Case, N.Y.
Times, Sept. 3, 2006, at A19.
43
The U.S. Attorney responsible for the plea deal later revealed that after negotiations started, "what followed was a year-long assault on the
prosecution and the prosecutors" by Epstein. Letter from R. Alexander Acosta, former U.S. Att'y, to Whom It May Concern (Mar. 20, 2011),
reprinted in Conchita Sarnoff, Behind Pedophile Jeffrey Epstein's Sweetheart Deal, Daily Beast (Mar. 25, 2011, 3:17 AM),
http://goo.gl/kyveiF. Acosta, however, claimed that the pressure did not influence the ultimate disposition of the case. Id.
44
Landon Thomas Jr., From Paradise to County Jail: A Billionaire Financial Adviser Will Serve 18 Months in Sex Case, N.Y. Times, July 1,
2008, at C1.
45
See Michele Dargan, Feds Say They Treated Epstein Victims Fairly, Palm Beach Daily News (Apr. 8, 2011, 7:23 PM),
http://goo.gl/rTGDed; Conchita Sarnoff, Billionaire Pedophile Goes Free, Daily Beast (July 20, 2010, 7:05 PM), http://goo.gl/MSTi17.
46
See Jane Doe Motion, supra note 40, at 14, 16 (internal quotation marks and citations omitted).
47
See Emergency Victim's Petition for Enforcement of Crime Victim's Rights Act, 18 U.S.C. Section 3771 at 2, Does v. United States, 817 F.
Supp. 2d 1337 (S.D. Fla. 2011) (No. 9:08-cv-80736-KAM).
48
United States' Response, supra note 40, at 7.
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104 J. Crim. L. & Criminology 59, *69
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[*70]
A. THE CVRA'S PURPOSES
An analysis of the CVRA's application before prosecutors have filed charges must begin by assessing the CVRA's purposes
because any interpretation of the CVRA that is divorced from the statute's purposes would run the risk of defeating the statute's
aims. It is axiomatic that courts should "give faithful meaning to the language Congress adopted in the light of the evident
legislative purpose in enacting the law in question." 49
As discussed above, 50 one important goal of the CVRA was to keep crime victims informed about any developments in the
criminal justice process. But the need to be informed does not begin with the filing of a formal criminal charge. A crime victim
needs to know what is happening before formal charging - during a criminal investigation, for example - just as much as she
needs to know what is happening in court. Indeed, she may have a greater need to know, as she may be concerned that the
criminal who harmed her is still on the loose, posing a danger to her.
Similarly, concerning the second purpose - facilitating victim participation 51 - without a right to pre-charging involvement,
victims may be effectively shut out of the process entirely. The Epstein case provides a useful illustration of why the CVRA
must be understood to extend rights to victims prior to indictment. The prosecutors handling the investigation reached an
agreement with Epstein that barred federal prosecution of sex offenses committed against dozens of victims, including Jane
Doe Number One and Jane Doe Number Two. If CVRA rights did not extend to the negotiations surrounding the agreement,
then the victims never would have had any ability to participate in the resolution of the case. 52
A construction of the CVRA that extends rights to victims before charges are filed would be entirely consistent with the
CVRA's participatory purpose. If victims have the ability to participate in a pre-charging plea bargaining process, for example,
victims can help ensure that prosecutors do not overlook anything that should be covered in the plea deal. For example, victims
might be able to obtain agreement to a "no contact" order or valuable restitution - points that the prosecutor might fail [*71] to
consider in crafting a plea. Similarly, allowing victims to participate early in the process avoids retraumatizing victims. Again,
as the Epstein case usefully illustrates, it may be extremely difficult for victims to discover after the fact that potential criminal
charges against a criminal who has abused them have been secretly bargained away. Jane Doe Number One and Jane Doe
Number Two, for example, were outraged when they discovered prosecutors had entered into an agreement blocking any
prosecution of sex offenses Epstein committed against them - and all without telling them. 53
In short, the purposes animating the CVRA all suggest that the Act was meant to, and should, extend rights to crime victims
before formal charges are filed.
B. THE CVRA'S PLAIN LANGUAGE
While the general purposes of the CVRA support a broad interpretation of the Act, it is important to examine whether those
purposes have been expressed in the Act's language. Without a linkage to the Act's text, the general purpose might not provide
49
Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1409 (2010) (quoting United States v.
Bornstein, 423 U.S. 303, 310 (1976)) (internal quotation marks omitted).
50
See supra notes 24-27.
51
See supra notes 28-29.
52
Even the Justice Department seems to recognize this point. As a matter of policy, the Department extends to victims the right to confer
with prosecutors in situations where plea discussions occur before charges have been brought. U.S. Dep't of Justice, Office for Victims of
Crime, Attorney General Guidelines for Victim and Witness Assistance 41-42 (2011 ed., rev. May 2012) [hereinafter Attorney General
Guidelines].
53
Without disclosing confidential attorney-client communications, this fact is readily apparent from victims' filings in the Epstein case. See,
e.g., Jane Doe Motion, supra note 40, at 17 (stating that the victims relied on the U.S. Attorney's Office representatives "to their detriment[,]"
that if they knew the true facts, "they would have taken steps to object" to the plea agreement, and that they believed criminal prosecution to
be "extremely important").
DAVID SCHOEN
104 J. Crim. L. & Criminology 59, *71
Page 9 of 31
a sound basis for interpretation. 54 But the CVRA's plain language makes clear that Congress intended for the law to provide at
least some rights to crime victims throughout the criminal justice process, even before the filing of criminal charges.
According to its text, the CVRA provides eight specifically enumerated rights for crime victims and an additional right to be
reasonably notified of these rights. 55 Some of these rights presuppose the formal filing of criminal charges. For instance, the
CVRA extends to victims the "right to reasonable, accurate, and timely notice of any public court proceeding." 56 That
particular right obviously does not apply before charges are filed, as no "court proceedings" exist before a defendant is charged.
But the CVRA also promises crime victims rights that are not specifically tied to court proceedings. Perhaps most expansively,
the CVRA guarantees victims the "right to be treated with fairness and with [*72] respect for the victim's dignity and privacy,"
57 a broad right that does not appear to be directly linked to a filed court case. Similarly, the CVRA promises victims the
"reasonable right to confer with the attorney for the Government in the case." 58 In this section, the CVRA's drafters appear to
have eschewed a reference to court proceedings, using a broader term instead. Of course, a "case" can refer both to a judicial
case before a court and an investigative case pursued by a law enforcement officer. It is common usage to say such things as,
"The police officer investigated and solved the case." Dictionary definitions of the word "case" support this varied
interpretation. 59
If there remained any doubts about whether the CVRA applies during the investigative part of the criminal justice process, two
other provisions in the CVRA resolve them. The CVRA specifically directs that "officers and employees of the Department of
Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime
shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in [the CVRA]." 60 Of
course, there would be no reason to direct that agencies involved in the "detection" and "investigation" of crime have CVRA
obligations if the Act did not extend to pre-charging situations. Congress thus directly envisioned the victims' rights law to
apply during the "detection" and "investigation" phases of criminal cases.
Similarly, the CVRA's venue provision instructs that crime victims who seek to assert rights in pre-charging situations should
proceed in the court where the crime was committed: "The rights described in subsection (a) [of the CVRA] shall be asserted in
the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in
the district in which the crime occurred." 61 Here again, it is hard to see why this provision would be necessary unless the
CVRA applies before the formal filing of charges.
For all these reasons, the CVRA's plain language indicates that the victims have protected rights under the Act even before
charges are filed.
[*73]
C. COURTS RECOGNIZE THAT CRIME VICTIMS HAVE CVRA RIGHTS BEFORE CHARGING
54
See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012).
55
18 U.S.C. § 3771(a) (2012) (enumerating eight rights); id. § 3771(c)(1) (requiring government officers use "their best efforts" to notify
victims of their rights).
56
Id. § 3771(a)(2).
57
Id. § 3771(a)(8).
58
Id. § 3771(a)(5) (emphasis added).
59
See, e.g., Black's Law Dictionary 243-44 (9th ed. 2009) (defining, among the definitions of "case," a "test case" as "[a] criminal
investigation" as in "the Manson case"); Webster's Third New International Dictionary of the English Language Unabridged 345 (1993)
(defining "case" as "a circumstance or situation (as a crime) requiring investigation or action by the police or other agency").
60
18 U.S.C. § 3771(c)(1) (emphasis added).
61
Id. § 3771(d)(3) (emphasis added).
DAVID SCHOEN
104 J. Crim. L. & Criminology 59, *73
Page 10 of 31
Because crime victims lack a right to appointed counsel, many victims have difficulty litigating the scope of their rights. 62
But in a few cases, victims have been able to secure counsel to argue that they have rights in the criminal justice process during
the investigation of federal crimes. When those cases have reached the issue of whether the CVRA applies before charges have
been filed, courts have uniformly agreed with the victims' position.
Perhaps the leading case to date to assess this question is the Fifth Circuit's decision in In re Dean. 63 There, a wealthy
corporate criminal defendant reached a generous plea deal with the Government - a deal that the Government filed for approval
with the district court without conferring with the victims. Citing procedural rights under the CVRA, the victims requested that
the trial court reject the plea agreement. 64 The District Court for the Southern District of Texas specifically concluded that
victims' CVRA rights could apply during the investigation of the crime: "There are clearly rights under the CVRA that apply
before any prosecution is underway." 65 The district court concluded, however, that the Government had not violated the
CVRA because it had secured judicial permission to dispense with notification to victims. 66
The victims sought appellate review in the Fifth Circuit. 67 There, the court concurred with the district court that CVRA rights
apply before trial. Unlike the district court, however, it held that the Government had violated the victims' rights:
The district court acknowledged that "there are clearly rights under the CVRA that apply before any prosecution is underway."
Logically, this includes the CVRA's establishment of victims' "reasonable right to confer with the attorney for the
Government." At least in the posture of this case (and we do not speculate on the [*74] applicability to other situations), the
government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain
the victims' views on the possible details of a plea bargain. 68
The Fifth Circuit then remanded the matter to the district court to determine the appropriate remedy for the violation of the
victims' rights. 69
The Fifth Circuit's decision in Dean has been cited favorably in four recent district court decisions, which provides further
support for the conclusion that the CVRA applies before charges have been filed. In United States v. Rubin, 70 victims of a
federal securities fraud argued that they had CVRA rights even before prosecutors filed a superseding indictment covering the
specific crimes affecting the victims. Citing Dean, the District Court for the Eastern District of New York agreed that the rights
62
John W. Gillis & Douglas E. Beloof, The Next Step for a Maturing Victim Rights Movement: Enforcing Crime Victim Rights in the
Courts, 33 McGeorge L. Rev. 689, 693 (2002).
63
527 F.3d 391 (5th Cir. 2008). Other aspects of the case are discussed in Paul G. Cassell & Steven Joffee, The Crime Victims' Expanding
Role in a System of Public Prosecution: A Response to the Critics of the Crime Victims' Rights Act, 105 Nw. U. L. Rev. Colloquy 164, 172-76
(2011).