The Availability of Crime Victims' Rights Under The Crime Victims' Rights Act of 2004

35 Op. O.L.C. 1

THE AVAILABILITY OF CRIME VICTIMS' RIGHTS UNDER THE CRIME VICTIMS' RIGHTS ACT OF 2004

No. 10-10

United States Department of Justice

December 17, 2010

JOHN E.BIES Deputy Assistant Attorney General.

THE AVAILABILITY OF CRIME VICTIMS' RIGHTS UNDER THE CRIME VICTIMS' RIGHTS ACT OF 2004

The rights provided by the Crime Victims' Rights Act are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal charges after the filing of a complaint).

MEMORANDUM OPINION FOR THE ACTING DEPUTY ATTORNEY GENERAL

The Crime Victims' Rights Act (“CVRA”), enacted as section 102 of the Justice for All Act of 2004, Pub. L No. 108-405, 118 Stat. 2260, 2261-64 (codified at 18 U.S.C. § 3771 (2006 & Supp. III 2009)), guarantees victims of federal (and District of Columbia) crimes eight rights. See 18 U.S.C. § 3771(a). In connection with an effort to update the Attorney General's Guidelines for Victims and Witness Assistance, you have asked whether some or all of these rights must be made available to crime victims before the United States files charges and whether the rights no longer apply once the relevant charges are declined, dropped, or dismissed.

In 2005, this Office conducted a preliminary review of these questions and concluded that a person's status as a qualifying crime victim under the Act could reasonably be understood to commence upon the filing of a criminal complaint, and could reasonably be understood to cease if the relevant charges are declined, dropped, or dismissed. See E-mail for Rachel Brand et al., Office of Legal Policy, from Luke Sobota, Office of Legal Counsel (Apr. 1 2005). That informal guidance did not foreclose the possibility that other readings of the CVRA might also be reasonable. We observed, however, that the statutory definition of “crime victim, ” the nature of the rights provided under the Act, and the CVRA's legislative history all suggested that the rights guaranteed by the CVRA were limited in their applicability to pending criminal proceedings. Having carefully considered written submissions by components of the Department as well as other federal law enforcement agencies, and for the reasons outlined below, we now conclude, consistent with our 2005 guidance, that the CVRA is best read as providing that the rights identified in section 3771(a) are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal charges after the filing of a complaint).^[1] [ 2]

The questions we address are limited to issues of statutory obligation under the CVRA. We express no opinion as to whether any of the rights identified in 18 U.S.C. § 3771(a) should be provided prior to the filing of a complaint (or after the dismissal of charges) as a matter of good practice Departmental policy, or pursuant to the provisions of other victim-related statutes, such as section 503 of the Victims' Rights and Restitution Act of 1990, 42 U.S.C. § 10607 (2006).^[2]

I.

The CVRA defines a “crime victim” in relevant part as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e). The Act states that crime victims so defined have the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding involving the crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. [ 3] (5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided by law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.

18 U.S.C. § 3771(a)(1)-(8). The CVRA repealed and replaced section 502 of the Crime Control Act of 1990, Pub. L. No 101-647, 104 Stat. 4789, 4820 (codified at 42 U.S.C. § 10606 (2000)), which appeared in a portion of that statute known as the Victims' Rights and Restitution Act of 1990 (“VRRA”), and which originally provided crime victims with a very similar list of rights.^[3](Other sections of the VRRA remain in force.)

Having identified these rights, the Act provides several avenues for their protection: by the courts, by Executive Branch officers, and finally by providing standing to victims themselves. First, the Act states that “[i]n any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded [these rights].” 18 U.S.C. § 3771(b)(1). Second, the Act provides that “[o]fficers 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 subsection (a), ” id. § 3771(c)(1), and it requires “[t]he prosecutor” to “advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection (a), ” id. § 3771(c)(2). Third, the Act authorizes crime victims, or their lawful representatives, as well as “the attorney for the Government, ” id § 3771(d)(1), to assert CVRA rights by motion “in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court [ 4] in the district in which the crime occurred.” Id. § 3771(d)(3). The Act directs the district court “to take up and decide [such a motion] forthwith.” Id. The Act provides for expedited mandamus review by the court of appeals of any decision denying relief, id., and it permits the Government (but not the crime victim) to assert as error on appeal any denial of a crime victim's right, id. § 3771(d)(4). The Act provides that a crime victim may seek to reopen a plea or a sentence in limited circumstances. See Id. § 3771(d)(5). Finally, the Act provides that “[n]othing in this chapter shall be construed to authorize a cause of action for damages, ” id. § 3771(d)(6), and directs that “[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” Id.

In addition to providing means for judicial enforcement of the rights it guarantees, the Act directs the Attorney General to “promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims.” Id. § 3771(f)(1). These regulations “shall . . . designate an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim, ” id. § 3771(f)(2)(A); “require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, ” id § 3771(f)(2)(B); “contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims, ” id. § 3771(f)(2)(C); and “provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant, ” id. § 3771(f)(2)(D). Pursuant to the Act's directive, the Attorney General has promulgated regulations establishing procedures for crime victims to file complaints regarding the provision of CVRA rights or other obligations regarding crime victims provided by law, and to have such complaints adjudicated. See 28 C.F.R. § 45.10 (2010).

II.

While a number of provisions in the CVRA indicate that the rights it guarantees do not apply until after the initiation of criminal proceedings, a few provisions could be read to suggest that at least some of the rights are to be provided before any charges are filed. In our view, the better reading of the Act-considering its text, structure, purpose, and legislative history-is that the rights provided by the CVRA are guaranteed only from the time criminal proceedings are initiated through a complaint, information, or indictment. See, e.g., United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs. Ltd, 484 U.S. 365, 371 (1988) (“[statutory construction . . . is a holistic endeavor”). To begin with, there are a number of textual indications that Congress was focused on providing crime victims an opportunity to participate in pending criminal proceedings; these include the use of the term “offense” in the definition of “crime victim” and the use of a number of terms-e.g “the accused, ” “court proceedings, ” and “in the case”-in the characterizations of several of the rights in section 3771(a). The nature of the CVRA rights considered...