[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
                    CRIME VICTIMS RIGHTS ACT OF 2004

=======================================================================



                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 29, 2009

                               __________

                           Serial No. 111-75

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel
                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 29, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Ted Poe, a Representative in Congress from the 
  State of Texas, and Member, Subcommittee on Crime, Terrorism, 
  and Homeland Security..........................................     2

                               WITNESSES

Ms. Eileen Larence, Director, Homeland Security and Justice 
  Issues, U.S. Government Accountability Office, Washington, DC
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Laurence E. Rothenberg, Deputy Assistant Attorney General, 
  Office of Legal Policy, Department of Justice, Washington, DC
  Oral Testimony.................................................    28
  Prepared Statement.............................................    31
Ms. Mary Lou Leary, Acting Assistant Attorney General, Office of 
  Justice Programs, Department of Justice, Washington, DC
  Oral Testimony.................................................    36
  Prepared Statement.............................................    39
Mr. Douglas E. Beloof, Professor of Law, Lewis and Clark Law 
  School, Portland, OR
  Oral Testimony.................................................    46
  Prepared Statement.............................................    48
Ms. Susan Howley, Director of Public Policy, National Center for 
  Victims of Crime, Washington, DC
  Oral Testimony.................................................    52
  Prepared Statement.............................................    55

                                APPENDIX

Material Submitted for the Hearing Record........................    73


                    CRIME VICTIMS RIGHTS ACT OF 2004

                              ----------                              


                      TUESDAY, SEPTEMBER 29, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 4:04 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Jackson Lee, Quigley, Poe, 
and Goodlatte.
    Staff Present: (Majority) Bobby Vassar, Subcommitte Chief 
Counsel; Jesselyn McCurdy, Counsel; Ron LeGrand, Counsel; 
Veronica Eligan, Professional Staff Member; and (Minority) 
Kimani Little, Counsel.
    Mr. Scott. The Subcommittee will come to order, and I would 
like to welcome you on today's hearing on the Crime Victims' 
Rights Act of 2004.
    There have been several attempts to amend the United States 
Constitution to recognize the role of crime victims in the 
criminal justice process. Having been unable to come to a 
consensus about a constitutional amendment, in 2004 Congress 
enacted statutes and other statutes that have established 
certain statutory rights for crime victims and provides funding 
for services for crime victims.
    Using a statue rather than a constitutional amendment 
avoids the complications which arise when defendants' rights 
might be compromised under a constitutional amendment. And so, 
since 1982 the Federal Government has passed a number of laws 
that address the role of crime victims in the criminal justice 
system, including the Crime Victims' Rights Act of 2004.
    That act was signed into law as part title I of the Justice 
for All Act. The law improved the role of victims in the 
criminal prosecution, including identifying eight specific 
rights of Federal crime victims, including the right of victim 
witnesses not to be excluded from public court proceedings 
unless the court determines that the victim's testimony would 
be influenced.
    Crime victims are also given the right to be reasonably 
heard at any public proceeding in a district court involving 
the release, plea, sentencing, or the right to be heard at any 
parole hearing. The 2004 law gives victims the right to 
reasonable, accurate, and timely notice of any public court 
proceeding, any parole hearing, any release or the escape of a 
defendant.
    The act also established two procedures to ensure the 
victims' rights are protected under the law. First, the law 
directed the Department of Justice to develop a process to 
receive and investigate complaints relating to violations of 
crime victims' rights to ensure that the Department employees 
are complying with the requirements of the 2004 law. In 
addition, the Crime Victims' Rights Act enables victims to 
assert their rights in district court not only when they 
believe a Department employee has violated their rights but 
when they have had any concerns about their ability to exercise 
their rights.
    In addition, the 2004 act directed the U.S. Accountability 
Office to evaluate the implementation of the law. The GAO will 
testify today about its December 2008 report which assessed how 
the Department of Justice has ensured crime victims are given 
their statutory rights.
    One of the findings in the GAO report concluded that 
several important issues have surfaced as Federal courts 
interpret the rights given to victims under the act. For 
example, questions such as: At what point in the criminal 
justice process do crime victims' rights apply? And does the 
law apply to local offenses prosecuted in the District of 
Columbia Superior Court? Both of those have been litigated in 
Federal court but essentially remain unsettled.
    I hope the Department in its testimony will discuss its 
position on various unsettled legal issues that have resulted 
from different court interpretations of the Crime Victims' 
Rights Act.
    Finally, the 2004 law authorized funding for programs that 
provide crime victims with services, funding for organizations 
that provide legal counsel to Federal crime victims, and 
funding for the improved Victim Notification System. Although 
most of these grants have been reauthorized to 2013, we will 
review how the funding has been spent to date.
    It is important to note that the Crime Victims' Rights Act 
only applies to Federal prosecution, but we also have a concern 
about how victims are treated in State court. And, indeed, $100 
million in the recent recovery package provided funding for 
State compensation and assistance for victims.
    We have several distinguished witnesses who will testify 
about how the 2004 Crime Victims' Rights Act has been 
implemented, including representatives from the GAO and the 
Department of Justice.
    Before we get to the witnesses, it is my pleasure to 
recognize the Ranking Member for today, Mr. Poe from Texas. 
Judge Gohmert is not with us, and Mr. Poe is sitting in on his 
behalf.
    Mr. Poe?
    Mr. Poe. Thank you, Mr. Chairman. I appreciate you calling 
this oversight hearing on the Crime Victims' Rights Act of 
2004. To my knowledge, this will be the Subcommittee's first 
hearing on this landmark piece of legislation in this or the 
previous Congress.
    The Crime Victims' Rights Act, or the CVRA, was passed as 
part of the Justice for All Act in 2004. The CVRA significantly 
expanded the rights of crime victims in the criminal justice 
system. The overarching goal of the Crime Victims' Rights Act 
was to make sure that victims of Federal crimes enjoy certain 
rights of notice, attendance, participation in Federal criminal 
justice process.
    It is my opinion that the same Constitution that protects 
defendants of crime protects victims of crime, as well. As 
crime victims are afforded numerous protections under the Bill 
of Rights and other Federal laws, there was a feeling among 
many Members of Congress that the criminal justice system did 
not have enough protections, statutory protections, for rights 
of victims.
    To address that imbalance, Congress created a statutory 
bill of rights for victims of crime committed in violation of 
Federal law or the laws of the District of Columbia. The rights 
conveyed by the CVRA are those eight rights: the right to be 
reasonably protected from the accused; the right to 
notification of public court and parole proceedings and the 
release of the accused; the right not to be excluded from 
public court proceedings under most circumstances; and the 
right to be heard in public court proceedings relating to bail, 
acceptance of a plea bargain, sentencing or parole; the right 
to confer with the prosecutor; the right to restitution under 
the law; the right to proceedings free from unwarranted delays; 
and the right to be treated fairly and with respect to one's 
dignity and privacy.
    Now, the CVRA directs the courts and law enforcement 
officials to see to it that these rights are honored. Both 
victims and prosecutors may assert the rights and seek review 
from the appellate court should the rights be initially denied.
    In addition to the statutory rights, the CVRA created grant 
programs and other authorizations to protect and to further 
crime victims' rights. To me, this is a good use of taxpayer 
money. Under the CVRA, the Department of Justice may make 
grants to State, tribal, local law enforcement agencies, and 
public and private entities to develop and maintain programs 
for the enforcement of crime victims' rights as provided by the 
law.
    As a former prosecutor and judge, I have had personal 
experience working with Americans who have been victimized by 
crime and whose lives and their families' lives have been torn 
apart. I started in the criminal justice system back in the 
1970's as a prosecutor and then a judge, I guess, forever until 
I came to Congress.
    And one case I prosecuted back in the 1970's was a homicide 
that involved four people. An entire family was assassinated 
for the life inheritance of these four individuals. One of 
those was a child, Kevin Wanstraf. He is the same age as one of 
my four kids, my son. And I have always had this photograph on 
my desk since that prosecution in 1979, because he was 14 
months old when he was murdered, and I have always wondered how 
he would turn out, how his siblings would turn out.
    And I think it is important that we, in this sterile 
environment of Washington, D.C., remember that victims of crime 
are people. They are American people who have had their lives 
shattered by the fact that someone else picked them to be prey, 
to have something stolen from them, to have an assault 
committed against them, or have a homicide committed against 
them.
    And so I appreciate the Chairman having this hearing. As a 
Member of Congress, I do serve as co-chair of the Victims' 
Rights Caucus. It is a bipartisan caucus that advocates for 
crime victims and also for law enforcement officials. And so I 
enthusiastically support the CVRA and look forward to hearing 
testimony. I welcome all the witnesses for being here today.
    And I yield back the balance of my time.
    Mr. Scott. Thank you.
    Does the gentleman from Illinois have any comments?
    The gentleman from Illinois did a lot of work in criminal 
law in Illinois.
    The gentleman from Virginia, my colleague, Mr. Goodlatte, 
do you have any comments?
    Mr. Goodlatte. No. Thank you, Mr. Chairman.
    Mr. Scott. Okay. Did you do prosecution or defense?
    Mr. Goodlatte. I did some court-appointed.
    Mr. Scott. Okay. So you are very familiar with the criminal 
justice process.
    We will now get to our witnesses.
    The first witness is Ms. Eileen Larence, who currently 
serves as the director for homeland security and justice issues 
at the U.S. Government Accountability Office. In her capacity 
at the GAO, she manages congressional requests to assess 
various law enforcement and Department of Justice issues, as 
well as state terrorism-related information-sharing since 9/11. 
She has a master's degree in public administration.
    Our second witness today is Mr. Laurence Rothenberg, a 
deputy assistant attorney general at the Office of Legal Policy 
at the Department of Justice. He has helped develop and 
implement policies regarding victims' rights, trafficking in 
persons, child exploitation,Indian country, international human 
rights, and forensic sciences. He is a graduate of Amherst 
College, Fletcher School of Law and Diplomacy at Tufts 
University, and Harvard Law School.
    The third witness is Mary Lou Leary, acting assistant 
attorney general in the Office of Justice Programs and at the 
Department of Justice. Prior to joining the Department, she 
served as executive director for the National Center for 
Victims of Crime, a nonprofit organization in Washington, D.C. 
She also has served as deputy associate attorney general for 
the Office of the Associate Attorney General and acting 
director of the Office of Community-Oriented Policing Services, 
or the COPS program, during her previous service at the 
Department.
    Our next witness is Douglas Beloof, professor of law at 
Lewis and Clark Law School in Portland, Oregon. He is the 
director of the National Crime Victim Law Institute, which 
represents crime victims in appellate court. The institute also 
performs research and maintains a database and brief bank on 
victim law and promotes legal education of law students, 
lawyers, judges, and victims' advocates on victim law issues. 
He received his bachelor of arts from the University of 
California, Berkeley, and his juris doctorate from Lewis and 
Clark Law School.
    Our final witness is Susan Smith Howley, director of public 
policy for the National Center for Victims of Crime. She has 
also served as the center's director of victims' services and 
is one of the Nation's foremost experts on crime victims' 
rights laws. She is a graduate of Georgetown University Law 
Center.
    Each of our witnesses' testimony will be entered into the 
record in its entirety. We would ask each witness to summarize 
your testimony in 5 minutes or less. To help you stay within 
the time, there is a timing device at the table which will 
begin as green, turn to yellow when there is 1 minute left, and 
turn red when your time is expired.
    We will begin with Ms. Larence.

 TESTIMONY OF EILEEN LARENCE, DIRECTOR, HOMELAND SECURITY AND 
    JUSTICE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, 
                         WASHINGTON, DC

    Ms. Larence. Mr. Chairman and Members of the Subcommittee, 
I am pleased to be here today to summarize the results of our 
review of how well the Victims' Rights Act is working at its 5-
year anniversary.
    In response to a mandate from the Congress, GAO answered 
four questions about the act, among other things. First, we 
determined what steps the Department of Justice and the courts 
were taking to implement the act and fix any implementation 
problems. Second, we assessed how well the act's two 
enforcement mechanisms were working. Third, we reviewed how the 
courts are interpreting the meaning of key provisions in the 
act that raise questions. And, fourth, we asked various 
participants what difference they think the act has made.
    In summary, we found that the Department and the courts 
have taken steps to provide employees with guidance, training, 
and revised rules, and victims with court access and services.
    They have also taken steps to overcome challenges, some of 
which are inherent to the judicial process. For example, cases 
of computer fraud or identity theft can involve large numbers 
of victims. This makes it hard to notify all victims of court 
proceedings or let all of them speak in court. Justice staff 
were using media outlets and teleconferences, among other 
things, to overcome these hurdles.
    The Department also was providing funding to hire 
contractors to help with the increased administrative workload, 
such as the increased number of notices of court proceedings 
that must now be sent to victims.
    While we tried, we could not determine just how much 
funding the Department was appropriated to implement the act. 
As you know, Congress authorized funding for fiscal years 2005 
through 2009 and extended that funding for, among other things, 
staff assistance, enhanced notification systems, legal support 
to victims, and grants to States and localities for victim 
assistance. But because the Department receives funds for CVRA 
lumped in with funds for other victim assistance efforts, it is 
not possible to separate out and report on CVRA funding.
    Turning now to the two enforcement mechanisms that, Mr. 
Chairman, you mentioned in your opening statement, victims 
reported that they did not use these tools, in part because 
they didn't really know about them.
    For example, the Department created the Victim Rights 
Ombudsman to receive and investigate complaints about Justice 
employees not affording victims their rights. We found, 
however, that few victims filed complaints, and many reported 
they didn't know they could.
    We also found that the complaint process was not as 
independent and impartial as it could be. For example, in some 
cases, Justice employees were investigating complaints about 
their officemates or supervisors.
    In addition, we found victims did not use the second 
enforcement mechanism to file a motion in court and, 
subsequently, a writ of mandamus in appeals court if they 
believed their rights were compromised.
    We recommended that the Department take steps to address 
all of these issues. The Department, in turn, convened a 
working group that is assessing how to respond to these 
recommendations and has already made changes to the ombudsman 
process to help ensure independence.
    In regard to our third question, as is typical with many 
new laws, the courts have been interpreting provisions in the 
act to answer questions about it, such as: Do rights apply 
before a person is charged with an offense? If victims only 
submit written statements, were they, quote, ``reasonably heard 
in court?''
    The Department and courts agree, however, that the Congress 
should change the law to answer one question that has caused 
confusion: Does the act apply to victims of local crimes in 
D.C. Superior Court? Some judges in this court have applied the 
act, while others have not. The Department had proposed 
legislation to establish that the law does apply, but no action 
was taken. We suggest that the Congress consider clarifying the 
act to address this issue.
    Finally, we asked various participants if they thought the 
act had made a difference. Perhaps not surprisingly, views are 
mixed. Most maintained that the act did improve awareness about 
victim rights, victim treatment, and victim participation in 
the legal process. Others maintained that Federal and State 
governments, as well as the courts, were already providing 
victims these rights because of State laws, so perhaps the act 
had little impact.
    Victims said they were aware of most, but not all, of their 
rights, and victims varied as to how satisfied they were that 
their rights had been honored. Additionally, some expressed 
concerns that the focus on victims' rights could come at the 
expense of defendants' interests. For example, some claim that 
if victims hear the testimony of other witnesses, victims may 
alter their own testimony, which could increase the likelihood 
that the defendant is found guilty.
    Mr. Chairman, that concludes my statement, and I would be 
happy to answer any questions.
    [The prepared statement of Ms. Larence follows:]
                Prepared Statement of Eileen R. Larence












































                               __________

    Mr. Scott. Thank you.
    Mr. Rothenberg?

TESTIMONY OF LAURENCE E. ROTHENBERG, DEPUTY ASSISTANT ATTORNEY 
    GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, 
                         WASHINGTON, DC

    Mr. Rothenberg. Good afternoon, Chairman Scott, Ranking 
Member Poe, and Members of the Subcommittee. My name is 
Laurence Rothenberg, and I am a deputy assistant attorney 
general in the Office of Legal Policy in the Department of 
Justice, where I have worked on victims' rights issues for more 
than 5 years, including, specifically, the implementation of 
the CVRA.
    I also have a personal interest in and commitment to this 
work as the son of a murder victim. My father was murdered in 
the U.S. Virgin Islands in 1974 in a case that was successfully 
prosecuted by the U.S. Attorney's Office there. Thus, I have 
firsthand appreciation of the needs of Federal crime victims 
and the importance of DOJ employees taking those rights 
seriously.
    Indeed, the rights of crime victims are of critical 
importance to the Department, and we are glad the Subcommittee 
is focusing on those rights and we have been given the 
opportunity to discuss the Department's important work in this 
area.
    In the 5 years since passage of the CVRA, the Department 
has worked hard to fulfill both its letter and its spirit. 
Almost immediately after passage of the act, an extensive 
awareness and education program was commenced within the 
Department.
    Using funding provided by the Office for Victims of Crime, 
the Executive Office for United States Attorneys held a series 
of trainings, both live and by video, in an effort to reach all 
those in the Department who work with crime victims to spread 
the message of the new crime victims' rights law.
    Under OLP's coordination, the Attorney General Guidelines 
for Victim and Witness Assistance were substantially revised in 
May 2005 to include the act's new protections. And the training 
video on the new AG guidelines was distributed to all 
Department components with victim responsibilities.
    We also established the Office of the Victims' Rights 
Ombudsman, which has the authority to investigate complaints 
under the CVRA made by victims against DOJ employees. The vast 
majority of complaints received by the VRO were not within the 
VRO's jurisdiction, however, because they either referred to 
State or private authorities, judges, non-DOJ agencies, or were 
complaints from individuals who were not victims in any ongoing 
Federal cases.
    Of those cases within the VRO's jurisdiction, many involved 
simple errors, such as the victims' names being inadvertently 
being left off of restitution mailing lists or inquiries about 
defendants falling behind in restitution payments.
    Our work has had a real effect on victims, but it is always 
difficult to quantify a change in awareness. We have 
indications that victims are participating in cases more often 
and receiving more and better services. For example, the number 
of victim notifications sent by the Department has nearly 
tripled since passage of the CVRA, and victims are 
participating in more proceedings than ever before.
    Essential victim services have also increased. In fiscal 
year 2008, for example, victim witness personnel in the U.S. 
Attorney's offices provided referral assistance to 27 percent 
more victims than in fiscal year 2006, when we started tracking 
that data. We utilized a wide range of resources from State, 
local, and Federal agencies and victims service organizations.
    The Department has also used the CVRA provisions to protect 
victims' rights in court. For example, we are currently 
litigating the right of victims to be heard in child 
pornography cases. Last year, a district court in California, 
on its own, struck victim impact statements from the 
presentencing report for a defendant who had pled guilty to 
possession of images of child sexual abuse. The court said the 
statements were not relevant to the possession charge, only to 
the actual abuse.
    We believe this is legal error, as a long line of cases 
establishes that children whose sexual abuse has been 
photographed are revictimized every time those images are 
viewed by another offender. Indeed, the victim impact 
statements in this case specifically describe the emotional 
harm felt by the victims as a result of the knowledge that 
images of their sexual abuse are in circulation and continually 
viewed by offenders. We are aggressively pursuing the right of 
these victims to have their say before the court, and the 
appeal is pending in the Ninth Circuit.
    I believe that GAO's review validates the overwhelmingly 
positive impact of the CVRA and of the Department's efforts to 
implement it. GAO found the majority of crime victims were 
aware of most of their CVRA rights. They found that victims 
are, on the whole, satisfied with the Department's provision of 
those rights.
    GAO did make some recommendations based upon its review, as 
the previous witness described. And, also, as our previous 
described, we have convened a working group that has examined 
these issues, and we are preparing specific responses to them, 
including, for example, the one that we have already taken in 
order to revise the VRO's procedures to eliminate the problem 
of appearance of conflict of interest.
    That concludes my statement, and I look forward to hearing 
your questions.
    [The prepared statement of Mr. Rothenberg follows:]
              Prepared Statement of Laurence E. Rothenberg












                               __________

    Mr. Scott. Thank you.
    Ms. Leary?

TESTIMONY OF MARY LOU LEARY, ACTING ASSISTANT ATTORNEY GENERAL, 
OFFICE OF JUSTICE PROGRAMS, DEPARTMENT OF JUSTICE, WASHINGTON, 
                               DC

    Ms. Leary. Thank you.
    Mr. Chairman, Ranking Member Poe, Members of the 
Subcommittee, I am pleased to have the opportunity to discuss 
with you the Department of Justice's efforts to implement the 
CVRA. We appreciate your interest in this issue.
    I, myself, have a particular interest in the issue, since I 
have been working with victims of crime throughout my career as 
a local prosecutor, a Federal prosecutor, head of a national 
victims' advocacy organization and as an official at the 
Department of Justice.
    Treating crime victims with dignity and with respect and 
protecting their rights is a high priority for the Attorney 
General, Mr. Holder, and for the entire Department of Justice, 
including the Office of Justice Programs, better known as OJP. 
And, as GAO's recent audit demonstrates, the Department really 
has made substantial efforts to comply with its obligations to 
victims of crime, whether or not those obligations are imposed 
by the CVRA or any other provision of Federal law. OJP has 
played a critical role in those efforts through its policy 
development and through program funding.
    As this Committee is aware, the CVRA tasks the office of 
Victims of Crime in OJP with collecting victim service 
information from other DOJ components. OVC is required to 
submit a report of this information to the Attorney General. 
This year, OVC submitted a combined report, its information for 
2005 through 2007, that summarizes DOJ component reports, and 
it also makes a number of recommendations for improvements 
throughout DOJ components. And, currently, OVC is working on 
creating the 2008 Attorney General compliance report.
    Also in response to a recommendation in the GAO audit, OVC 
is working with the Office of Legal Policy and other DOJ 
components to develop a standardized compliance survey that 
will be completed annually by all components at the Department 
and will give us a much clearer idea of departmental efforts in 
this arena.
    The AG report is really just one of the many ways in which 
OJP is working with other DOJ components to improve victims' 
services and protect their rights. In 2005, OVC provided the 
Executive Office of U.S. Attorneys with a million dollars to 
provide training on CVRA. OVC has also, for many years, 
provided support for Federal victim coordinator and specialist 
positions in both U.S. Attorney's offices and in FBI field 
offices.
    I know from my own experience as an AUSA that these 
specialists are absolutely critical and they provide essential 
services. One example is with terrorism and trafficking 
victims. In the aftermath of last year's terrorist attacks in 
Mumbai, India, where there were a number of American victims, 
victim specialists quickly identified 120 victims. They 
arranged for repatriation for victims that died in the attacks 
and evacuated those who were injured.
    And those specialists continue to this day to provide 
services to those victims and to their families: crisis 
counseling, therapy referrals, employer intervention, 
verification for crime victim compensation programs, and a 
number of other services and notifications of rights. Those 
victim specialists have made all the difference for the victims 
of that attack.
    Another important example: In fiscal year 2009, OVC 
provided over a million dollars for model projects, 
particularly in Indian country, to provide support to the U.S. 
Attorney's offices and Bureau of Indian Affairs district 
offices on victim services and victims' rights.
    One of the Bureau of Indian Affairs advocates that was 
hired through this program recently worked with 17 high school 
kids who were involved in a very tragic vehicular homicide on 
the White River Apache Reservation. Seventeen kids piled into a 
pickup truck, driving around the reservation. The driver had 
been drinking, drove the car into a ditch. The front-seat 
passenger was killed, her cousin was killed, and four others 
were critically injured. And the victim specialists are working 
with all those victims and with their families and with the 
community.
    OVC also supports the nationwide victim notification 
system, which is a shared Web-based application. It involves 
FBI, Postal Inspection Service, U.S. Attorney's Offices, DOJ, 
and Bureau of Prisons. This provides victims with a toll-free 
number. They can use that number to get access to current case 
information. And there is also a Web site that provides that 
information, as well. We are working with EOUSA to make sure 
that every DOJ component gets linked up to that system.
    OVC has also undertaken other efforts to enhance provision 
of victims' services at every level of the criminal justice 
system. We have awarded over $4 million to the National Crime 
Victim Law Institute for the Crime Victims' Rights Enforcement 
Project. You will hear a lot more about this from Mr. Beloof, 
but they are working throughout the country to provide direct 
representation to crime victims to enforce their rights in 
court.
    In addition to OVC, the Bureau of Justice Assistance, which 
is also part of OJP, has awarded over $39 million to 38 States 
and Puerto Rico through the State Automated Victim Information 
and Notification Program, better known as SAVIN. And that helps 
States build, implement, and improve this State-level victim 
notification capacity. It helps the States get the technology 
they need to maintain critical information about offenders in 
almost real time.
    So crime victims in States now have unprecedented access to 
real-time information. Imagine what that means to a victim of a 
sexual assault who is terrified that the offender will be 
released from prison and she won't know about it and she will 
turn around one day and there he will be in the neighborhood. 
That victim can get real-time information and should not ever 
be surprised like that.
    I would like you to know that the Department will continue 
to expand and improve its efforts to assist victims and to 
protect their rights under the CVRA and under every other 
pertinent provision of law. This has always been a critical 
part of the Department's mission, and it will continue to be 
so.
    Thank you for your attention, and I will take any questions 
you have.
    [The prepared statement of Ms. Leary follows:]
                  Prepared Statement of Mary Lou Leary
















                               __________
    Mr. Scott. Thank you.
    Mr. Beloof?

  TESTIMONY OF DOUGLAS E. BELOOF, PROFESSOR OF LAW, LEWIS AND 
                 CLARK LAW SCHOOL, PORTLAND, OR

    Mr. Beloof. Thank you, Mr. Chair Scott, honorable Members 
of the Committee.
    I assisted in the drafting of the Crime Victims' Rights Act 
of 2004. Right now, the CVRA represents a broken promise to 
crime victims in several essential respects.
    First of all, the authorized funding of the CVRA has not 
been forthcoming in the form of an additional appropriation. 
The efforts the government is talking about largely have been 
made out of existing funds.
    There has been an appropriation in one category of funding 
that is of particular interest to me. It was a critical 
component of the CVRA to provide independent legal services to 
enforce these rights. The amount authorized in the CVRA was $7 
million and $11 million thereafter for a period of 5 years. 
That amount has been reauthorized by Congress within the last 
year.
    There have been 3 years of that money coming: under $2 
million, a little over $2 million, and $4 million. Funding 
close to the level of your authorization has never occurred. 
This year, there is no funding at all for these services, for 
these legal services, despite the fact that it has been 
authorized.
    This is, in my mind, perhaps the most critical problem with 
the implementation of the CVRA. Authorization without 
appropriation dooms the CVRA experiment.
    As the Chair noted, this legislation was passed in lieu of 
a constitutional right. And one of the central premises of this 
statutory scheme were to test these laws with independent 
attorneys to see if they would be satisfactory.
    This testing is occurring on an extremely limited basis. We 
have created a slim framework of legal clinics with extremely 
limited funding. This network of legal services and the case 
banks and information collected is all on the brink of collapse 
shortly. Without authorization for this funding, the CVRA and 
the State law equivalents of victims' rights will have no 
champions and, as a result, are likely doomed to mediocrity or 
failure.
    The second biggest critical problem I see is the split of 
authority in the courts that threatens to, as a practical 
matter, end enforcement of crime victims' rights. The dispute 
is over whether the standard of review of appeals from 
violations of victims' rights is that of an appeal or that of 
mandamus.
    A standard of review of appeal guarantees meaningful review 
in all cases where victims' rights are violated. It has been 
the Justice Department's position that the standard of review 
should instead be mandamus. A standard of review of mandamus 
means that there will rarely be enforcement of victims' rights 
on review. The Federal Circuit courts are currently split on 
this issue.
    The third critical problem I see in the implementation of 
victims' rights is that the United States Department of Justice 
has taken a variety of positions adverse to both the letter and 
spirit of the CVRA. The most critical of these is, as I 
mentioned, the Department's position on the standard of review, 
but there are others as well.
    Another unfortunate stance of the Department of Justice has 
been to seek a very narrow definition of ``victim,'' first, 
that there only be a victim after the government indicts, and, 
second, they have sought a narrow construction of the 
definition of ``proximate harm.''
    On the other hand, in fairness, there have been cases in 
which the Justice Department has cooperated with lawyers that I 
am aware of. And it has worked out very well, and there has 
been substantial success. However, the level of cooperation is 
a far more common occurrence in State courts than in Federal 
prosecutions.
    Members of Congress should ask the present Attorney General 
to revisit the approach to crime victims' rights that some in 
the Department have taken and encourage the Department to take 
a position that makes these rights expansive rather than 
reduces them.
    As critical as I am of these unfortunate positions taken by 
the Department, the most regrettable shortcoming, again, I 
would like to emphasize, is the failure to fund the CVRA. This 
experiment cannot be tested without it.
    I want to say quickly that I am very grateful for the 
Office of Victims of Crime, which has worked diligently with 
limited resources--resources, mostly, that have not been 
appropriated under this authorization--to try to do something 
with the resources they have concerning the CVRA. They are to 
be commended for that.
    We could all do a lot more with a proper amount of funding. 
Thank you.
    [The prepared statement of Mr. Beloof follows:]
                Prepared Statement of Douglas E. Beloof










                               __________

    Mr. Scott. Thank you, Mr. Beloof.
    Ms. Howley?

TESTIMONY OF SUSAN HOWLEY, DIRECTOR OF PUBLIC POLICY, NATIONAL 
          CENTER FOR VICTIMS OF CRIME, WASHINGTON, DC

    Ms. Howley. Good afternoon, Chairman Scott and Members of 
the Committee. I appreciate the opportunity to be here today to 
talk about the implementation of the ``Scott Campbell, 
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn 
Crime Victims' Rights Act of 2004.''
    I will focus my testimony today on four issues. First is 
the need to clarify the applicability of the act prior to the 
formal filing of charges; the need to clarify the applicability 
in the District Columbia; the need to strengthen the victims' 
rights compliance program; and the need to refine and fund the 
CVRA's grant programs.
    There has been some question, as you have heard, as to the 
applicability of the CVRA prior to the filing of charges. We 
urge Congress to clarify. While a number of the rights in the 
CVRA specifically apply to the criminal justice process, and so 
would logically attach after the filing of charges, others are 
not so inherently limited.
    For example, victims should be entitled to fair treatment 
from the time they file a complaint with law enforcement. If a 
victim expresses fear for his or her safety prior to the filing 
of charges, the criminal justice system should provide the 
assistance it can regarding protection. And, when cases involve 
official plea negotiations prior to the filing of charges, 
surely the victim's right to confer with the prosecutors must 
attach. Otherwise, we are making a mockery of the victim's 
right to confer.
    We also ask Congress to clarify the applicability of cases 
in the District of Columbia Superior Court. While the 
definition of ``victim'' states that crimes in the District of 
Columbia are clearly covered by the CVRA, other sections create 
ambiguity by referring solely to the District Court and appeals 
therefrom, rather than specifically including the D.C. Superior 
Court.
    We also agree with the GAO that the victims' rights 
compliance system is inadequate. My written testimony makes a 
number of suggestions, but I want to address one here.
    As you have heard, the GAO found that Federal victims were 
unaware that they had a right to file a complaint or the right 
to seek legal advice. We urge Congress to give crime victims 
the right to be informed of their legal rights, including the 
right to file a complaint and the right to seek legal advice.
    Finally, I want to highlight two important CVRA grant 
programs. The first is to provide money to the U.S. Attorney's 
Office victim/witness programs. The drafters of the CVRA 
understood that the law would create additional burdens. To our 
knowledge, this grant program has never been requested or 
appropriated.
    Money is needed for additional data-entry low-level 
contractors to relieve victim service specialists from the 
routine entry of victim contact information and free them to 
provide the important hands-on victim assistance for which they 
have been trained. The program should specifically allow 
funding for such data-entry positions. It should also be 
expanded to include the investigation stage, because victim 
specialists at that stage also have significant data-entry 
burdens related to the victims' right to notification.
    We also urge increased funding for organizations that 
provide legal assistance to victims in criminal cases. Our 
National Crime Victim Helpline receives calls from too many 
victims who need this type of help, and we have too few places 
to send them.
    Just last week, we got a call from the mother of a 12-year-
old sexual assault victim. In the 2 years the case had been 
pending, she had never been notified of the status of the case 
by the prosecutor's office. She had made repeated attempts to 
learn the status of the case. Finally, she found out that a 
plea agreement had already been entered. She now wants to make 
a victim impact statement but has no confidence that she will 
be allowed to. Our staff counseled her on how to advocate for 
herself, but she really needs a victims' rights clinic or 
victims' rights attorney, and her State has none.
    Thank you for the opportunity to testify this morning. The 
National Center would be pleased to assist you as you work to 
refine and reauthorize the provisions of the Crime Victims' 
Rights Act.
    [The prepared statement of Ms. Howley follows:]
                Prepared Statement of Susan Smith Howley













                               __________
    Mr. Scott. Thank you.
    Thank everyone. I want to thank all of our witnesses for 
your testimony.
    Now we will recognize ourselves under the 5-minute rule for 
questions.
    First, I don't know whether this is Mr. Rothenberg or Ms. 
Leary: Does the Department have a position on the situation in 
Washington, D.C.? It is my understanding that all of the 
prosecutions in the State, in the District courts--excuse me--
in the courts, D.C. Courts, as opposed to the Federal courts, 
if they are felonies, the U.S. Attorney's Office is doing the 
prosecution. Is that right?
    Ms. Leary. Your question is, are all the local crimes 
prosecuted in the D.C. Courts?
    Mr. Scott. At least the felonies.
    Ms. Leary. Yes. Yes. Some crimes could be brought in either 
D.C. Superior Court or in the District Court.
    Mr. Scott. The Federal District Court.
    Ms. Leary. Correct.
    Mr. Scott. Right. And if it is a felony, the U.S. Attorney 
is prosecuting whichever court it lands in.
    Ms. Leary. Correct.
    Mr. Rothenberg. Even misdemeanors, all crimes.
    Mr. Scott. Even misdemeanors? Okay. The corporation counsel 
doesn't do that?
    Mr. Rothenberg. No.
    Ms. Leary. Juvenile crime is prosecuted primarily by the 
Attorney General of the District of Columbia. It used to be 
called Office of Corporation Counsel. And for juveniles 
transferred for prosecution as an adult, it would be prosecuted 
by the U.S. Attorney.
    Mr. Scott. Okay. But for all other felonies, it is the U.S. 
Attorney. Does the Department have a position on whether or not 
this act ought to apply in Washington, D.C., in those cases 
prosecuted by the U.S. Attorney?
    Ms. Leary. For all practical purposes, the Superior Court 
operations at the U.S. Attorney's Office operate as if it is 
applicable. But I would defer to Mr. Rothenberg on any policy 
questions.
    Mr. Rothenberg. Of course, what my colleague, Mary Lou, 
just said is absolutely accurate. The Department considers that 
it applies, and we act in all circumstances if it does apply. I 
believe, to the extent that that is not the case, as the GAO 
indicated, there are some judges who do not believe that it 
applies.
    Mr. Scott. So you wouldn't be offended if we made it 
specific, made it clear that it does apply?
    Mr. Rothenberg. I don't want to make a decision on that 
right at this moment, on what changes. But we are happy to work 
with you on any changes you feel would be appropriate.
    Mr. Scott. One of the things about the act is that some of 
the provisions are labor-intensive. I mean, some work has to be 
done, which means you have to have enough staff in the U.S. 
Attorney's Office to work with the victims and witnesses. As I 
think both Mr. Beloof and Ms. Howley have indicated, we haven't 
appropriated the money.
    How much would we need to provide the assistance 
contemplated under this act that has not been appropriated?
    Ms. Leary. I don't know what the exact figure would be, but 
we can work with you on that.
    I will say that improvements have been made, and some of 
them through additional staffing provided to the offices and 
some of them through automation. The Victim Notification System 
is connected directly to the electronic case filing systems in 
the District Court. So that really expedites the notification 
and really eliminates error and inaccuracy and saves a lot of 
time.
    Mr. Scott. But are you going to work with us to get the 
appropriations so that we can provide the service contemplated 
under the act?
    Ms. Leary. We will be happy to work with the Committee on 
all of that.
    Mr. Scott. Now, we have talked about definition of 
``victims,'' and comments have been made about, in some cases, 
the management of the victims can be complicated.
    The Madoff case, does anybody know what happened with the 
victims in that case, how they were managed?
    Mr. Rothenberg. I am not specifically familiar with the 
case. If there are particular concerns that you have, I would 
be happy to work with your staff.
    Mr. Scott. Well, you had lots of victims. Did they all get 
to make impact statements? I mean, somebody ripped off at the 
level that the reports have--the public reports are that a lot 
of people got ripped off, and each individual would consider 
him or herself a huge victim. Did everybody get to make a 
comment?
    Ms. Leary. Yeah, actually, there is a significant number of 
victims in the Madoff case, and we have seen this in some other 
cases too. I am sure you remember the terrorism prosecutions in 
the Eastern District of Virginia. And there was litigation, 
actually, over whether each victim could make a statement and 
so on.
    I don't know the specifics in the Madoff case, but we can 
certainly look into that and find out for you.
    Mr. Scott. Do we have other problems with determining who 
is a victim? I mean, if you have a gang shootout, I mean, is 
there a problem with who is a victim and who is not a victim? 
Has that been a problem?
    Mr. Rothenberg. I am sorry----
    Mr. Scott. Let me ask Mr. Beloof.
    Has that been a problem, determining who is a victim and 
who may not be a victim?
    Mr. Beloof. I actually think the definition that Congress 
came up with is a perfect definition. The challenge we are 
having is we are having to litigate that issue against the 
Department of Justice. It is a very expansion definition of 
``victim.'' It includes any victim who is proximately harmed by 
the offense. So I haven't seen a problem with the definition 
itself. What I have seen is what I think is unnecessary 
litigation about what the scope of that is.
    Mr. Scott. Well, Mr. Beloof, you have been litigating. Are 
you litigating because the act is not clear enough or because 
in individual fact situations you have to figure out what the 
facts are to see how to apply the law?
    Mr. Beloof. Well, I guess a little of both. But I think 
some of the litigation is unnecessary, in the sense that it is 
clear when victims get their rights under the statute, and I 
think it is clear what the definition of ``victim'' is.
    The definition of ``victim'' is someone who has been 
proximately harmed by the event, and proximate harm is not a 
mystery in law. There are a lot of cases that define the scope 
and outline of proximate harm in other contexts that are 
applicable to this.
    So, both are true. There are a few things that are unclear. 
The standard of review is not crystal-clear. The definition of 
``victim'' is pretty clear.
    Mr. Scott. Okay. I have other questions but will defer to 
Mr. Poe at this point.
    Mr. Poe. Thank you, Mr. Chairman.
    Mr. Beloof, I have some questions regarding review. A 
complaint is made for the violation of one of the eight rights. 
The victim notifies your office or is put in contact with your 
office in some cases. Can you give me some ballpark figure of 
number of complaints, number of filings, whether it is an 
appeal or a mandamus, and success, how has it turned out? Has 
the victim's right been upheld or not founded by the appellate 
court?
    Mr. Beloof. Easier to start backwards, if I can.
    Mr. Poe. Okay.
    Mr. Beloof. And we have mandamus. There is not a flood of 
mandamus. We have, you know, very limited resources for 
attorneys to do these things. But the answer is, there is a mix 
of success, and that success depends largely on what the 
standard of review interpretation is. Sometimes we are 
litigating these cases alongside the Justice Department, in 
cooperation with them. Sometimes we are litigating against the 
Justice Department.
    In terms of numbers, I would have to get back to you on 
those numbers. There are far more State cases than Federal 
cases. And, remember, one thing the CVRA does not do is it does 
not apply in State cases, so we are litigating State rights in 
those cases.
    Mr. Poe. Do you think Congress ought to make it clear 
whether it should be appellate review or a mandamus?
    Mr. Beloof. I think it is critical that Congress make clear 
that it is an appellate review standard, standard of appellate 
review. It is critical. Otherwise, these rights are really, 
essentially, from a legal perspective, not enforceable, very 
often. And that was the whole function of the experiment of the 
statute. At least, that was the understanding of every Member 
of Congress I personally spoke to about it while we were 
working on this.
    Mr. Poe. If the rights don't have some enforcement or some 
sanction, then they are meaningless.
    Mr. Beloof. Right. The history of this is that there was an 
advisory victims' rights provision. And the Oklahoma City 
bombing occurred, as you may you remember, and the victims of 
the Oklahoma City bombing tried to attend the trial. And the 
victims' attorneys, particularly Paul Cassell, professor at the 
University of Utah, worked with the United States Department of 
Justice, and they both tried to enforce the victims' rights to 
attend that trial in the Oklahoma City bombing case. And it 
failed. And it failed because it was an advisory act. It didn't 
give meaningful and enforceable rights.
    And the problem with a mandamus standard of review is it 
risks the same thing. Yes, it is somewhat more enforceable, but 
there is no guarantee that it is enforceable. It depends on 
what the circuit court interprets as an extraordinary need for 
relief under mandamus standards.
    So we are not completely back where we started, but it was 
sort of three steps forward and, with this standard of review, 
it is two steps back again.
    Mr. Poe. Okay.
    Ms. Howley, on the comments you made about victims' rights 
taking place before the charge or after the charge or when they 
do take effect, what would you want Congress to do?
    Ms. Howley. I would like Congress to make clear that their 
rights are not limited to post-indictment. Some of them would 
be logically limited by their language. For example, the right 
to be heard at a public court proceeding is inherently limited 
to post-indictment. However, some of these other rights, as I 
mentioned, should apply from the time the crime victim has 
filed a complaint.
    Mr. Poe. So you would like us to just make that clear.
    Ms. Howley. Yes, please.
    Mr. Poe. Ms. Larence, did the GAO examine how the courts 
are doing in enforcing the victims' rights under the CVRA? And 
are courts aware, are judges aware of their obligations under 
the act?
    Ms. Larence. We did look at a number of actions that the 
courts have taken to make the judges aware. And they have taken 
quite a few actions in terms of training. They revised the 
Judges Bench Book. They revised the rules for criminal 
procedures. They have made extensive training available, 
including over their closed-circuit TV network. So they have 
taken numerous steps to increase the awareness among the 
judiciary of those rights.
    Mr. Poe. Mr. Rothenberg, it seems to me years ago there was 
a general philosophy among prosecutors that victims were just 
another witness in their case. Do you think that is still a 
philosophy in the U.S. Attorney's Office, or do you want to 
comment on that?
    Mr. Rothenberg. I would say, Congressman, that that is not 
the case, if it ever was the case, among Federal prosecutors. 
The CVRA has certainly helped make everyone sensitive to their 
obligations to victims, but I believe that the Department and 
its employees have always taken victims' rights seriously. And 
the CVRA has provided us with more opportunities and more 
guidance to do so.
    Mr. Poe. Last question for Ms. Leary. The Federal 
notification, along with the State notification, are those 
systems merged?
    Ms. Leary. No, they are not.
    Mr. Poe. Do you think they should be?
    Ms. Leary. I don't think that would work because the 
Federal system is tied into the electronic case filing system 
that you have in the United States Federal district courts 
throughout the country, and the State systems are completely 
different. So I actually think that it is best if we tailor 
those systems to the States and then tailor the Federal.
    Mr. Poe. All right.
    My time has expired. Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Rothenberg, have there been any cases where the 
Department has sought appellate review of district court 
decisions that limited victims' rights under the CVRA?
    Mr. Rothenberg. There have been quite a number.
    Mr. Goodlatte. How have those cases been resolved?
    Mr. Rothenberg. I don't have specific figures. I can give 
you some examples.
    One case in, I believe, 2006, we were prosecuting a case in 
Los Angeles. It was a Russian mob kidnapping and murder case. 
The victims' family members wanted to sit in court, and the 
district judge refused to let them do so. We appealed that on a 
mandamus, and we got a favorable ruling from the Ninth Circuit, 
and we were able to get the victims in there. It was a very 
important aspect for the victims.
    I recall one of the victims had never heard the details of 
her husband's last moments. And she was sitting in court while 
one of the defendants was on the stand, and she finally heard 
exactly what happened. And that was very important to her. She 
was quoted in the press subsequently as saying that.
    In a recent prosecution of an environmental crime in the 
district of Montana, we, again, wanted to have some of the 
victims present in court to hear testimony, and the district 
court refused. We successfully used the mandamus provision and 
got the appellate court to require that those victims were 
permitted to appear.
    Mr. Goodlatte. What was the court's basis for excluding 
them?
    Mr. Rothenberg. I think, if I recall correctly, in both of 
those cases there was a concern that it would be inappropriate 
to have somebody who could be a witness hear the testimony 
prior to their own appearance on the witness stand. But we 
successfully argued that that was not a serious concern in 
those cases and the victims deserved to be present during the 
prosecution.
    Mr. Goodlatte. In your testimony, you noted that the 
Department's Victims' Rights Ombudsman has investigated 25 
victims' complaints about the Department of Justice personnel. 
Can you describe the issues raised in those complaints, and how 
were they resolved?
    Mr. Rothenberg. I believe virtually all of those were 
resolved to the satisfaction of the victims. In many cases, 
those were simple errors, such as at some point someone's name 
fell off the list of notifications for a restitution order or 
something like that. Many of them were clerical errors which, 
once the VRO and the system got into place, it worked exactly 
as it should and we resolved them.
    Mr. Goodlatte. Thank you.
    Ms. Leary, can you tell us how the Department developed the 
nationwide Victim Notification System?
    Ms. Leary. Actually, the nationwide--do you mean the State 
or the Federal one?
    Mr. Goodlatte. Federal.
    Ms. Leary. The Federal one. It was done in conjunction with 
the Executive Office of U.S. Attorneys, because the U.S. 
Attorney's Office, you know, actually prosecute most of these 
cases. And, if I recall correctly, there was kind of a needs 
assessment done first, and then they had some technology 
consultants in there. And when we start talking technology, 
that is the end of my expertise. But I can try to get you some 
information.
    Mr. Goodlatte. And does that Federal Victim Notification 
System have interoperability with the many State notification 
systems?
    Ms. Leary. No, it does not.
    Mr. Goodlatte. And is there an effort to make that 
interoperable? Is that a desirable or undesirable thing to do?
    Ms. Leary. I am not sure it would be desirable since we are 
connected to a different--we use different mechanisms. And we 
are going through the Federal courts' electronic case filing 
system, and that is not applicable to the States.
    Mr. Goodlatte. Okay.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    Either Mr. Rothenberg or Ms. Leary, Ms. Howley indicated 
that, if Federal charges are brought, many victims request 
protection. If someone requests protection during the 
proceedings, what happens?
    Mr. Rothenberg. I believe that sort of request would go 
through our offices. I think it would depend upon the 
particulars of the case, but the agents investigating the case 
and the Assistant U.S. Attorneys are familiar with exactly what 
would happen. Sometimes, for example, that means providing 
emergency housing that would be a secure place for the victim. 
There are many different operations that we could take to 
secure the victim's safety.
    Mr. Scott. And would that protection be provided pre- 
indictment?
    Mr. Rothenberg. It would, because I really should point out 
that the CVRA is only one of the ways that we help victims. For 
example, you may be aware that, under 42 USC 10607, we also 
have obligations to the victims, including protection, 
including notice of what is going on in the investigation, the 
status of the case.
    So we provide a full range of services to victims, 
potential victims, even prior to an indictment, throughout the 
course of investigation and prosecution. It is a little bit of 
a--we shouldn't focus too much on simply the CVRA.
    Mr. Scott. You indicated problems in sentencing, the victim 
impact in a particular sentence, that the judge ruled it 
inadmissible and struck it. I thought that just about any 
conduct was relevant in sentencing, even acquitted conduct. It 
doesn't have to specifically even be related to the case.
    Is that what you are arguing on appeal, that if you have a 
victim, they have the right to testify, it doesn't have to be 
targeted just for this? I mean, they have other kind of conduct 
related?
    Mr. Rothenberg. In the particular case at issue, it is a 
possession case of child pornography. And what the judge said 
was that the victim impact statements were not relevant to the 
conduct charged that he pleaded guilty to.
    I think that is a good point you raise. But we want to 
establish the fact that the victim--the statement of the victim 
is in fact relevant. Because the possession of child 
pornography is part of the demand for the sexual abuse that 
occurred; and so we are establishing the fact that the child in 
these circumstances was, in fact, a victim of the crime.
    Mr. Scott. Thank you.
    Now, a lot of people have kind of gone back and forth about 
when the rights under this Act began, whether they began at 
indictment, pre-indictment, whether you need charges actually 
filed. Ms. Leary, you indicated a situation that sounds like, 
the terrorist situation, that sounds like that assistance was 
provided even before charges were brought, is that right?
    Ms. Leary. That is right. As Mr. Rothenberg said, the 
Department of Justice works with victims in a variety of ways; 
and many of those ways involve pre-indictment assistance to the 
victims. My own personal experience as an Assistant U.S. 
Attorney in D.C. is that we provide services to victims at 
every stage. And you can't meet all the needs, but you do your 
very best to do so.
    Mr. Scott. Now, some of these needs that you are describing 
seemed unrelated to court proceedings. Are we able to provide 
those kinds of services on a routine basis?
    Ms. Leary. We are not able to provide that full panoply of 
services on a routine basis. This was a very extraordinary 
case. And in many cases we do make referrals for services. So 
it is really incumbent on the prosecutors to, and the victim 
witness assistance units in the offices, to know the community 
resources that are available and to help connect victims with 
those services. So while you are not providing them yourself, 
you are making an appropriate referral and kind of connecting 
the dots for the victims.
    Mr. Scott. And my final question is just simply whether or 
not providing assistance to the victims has at all complicated 
the prosecution of cases?
    Ms. Leary. Providing assistance, does it complicate 
prosecution?
    Mr. Scott. Compliance with the law, has that complicated 
the prosecution?
    Mr. Rothenberg. I would say that it is an additional duty 
that our prosecutors have to and our investigative agents have 
to take. But to the extent that it has required more effort is 
one that we fully accept upon ourselves as part of our 
obligations.
    Mr. Scott. Okay. It has provided more efforts. But has it--
I mean, you can see in some cases, if it is a request for a 
timely trial before you are prepared, for example, 
theoretically, it could complicate the prosecution. Have you 
seen any complications in prosecutions? Have you been unable to 
aggressively and effectively prosecute defendants because of 
any compliance with this law?
    And I just say one of the arguments against the 
constitutional amendment is that you are impending on 
defendant's rights. And I guess my question is whether that is 
theoretical or real? Are you unable to prosecute people because 
of compliance with this law, or are any rights of defendants 
compromised because you have to comply with the law?
    Mr. Rothenberg. There are certainly circumstances where 
finding the right balance in the course of a prosecution 
between our obligations to the constitutional rights of 
defendants and the rights of victims does happen, and we do our 
best to work through those.
    Mr. Scott. Okay. Like what? Like what? Do you have some 
examples?
    Mr. Rothenberg. I cannot think of any examples.
    Mr. Scott. If you could provide some--let's go through and 
ask the U.S. Attorneys whether or not there have been any 
complications arising--how the law has complicated--other than 
they have got more work to do, you know, just provide that--do 
you cure that with funding for staff? Or whether or not there 
has been any compromising of their ability to do their jobs 
because they have to comply with the Act, whether it has 
complicated the prosecution at all. Because it is a statute, 
you can't impinge on defendants' rights, whether or not there 
have been any complications that arise? And if you would just 
check around and see if there are examples, I would appreciate 
it.
    The gentleman from Texas.
    Mr. Poe. Mr. Rothenberg, Ms. Howley mentioned that there 
were cases where the victim was not notified prior to charging 
when a plea bargain had been worked out. Are those cases where 
the U.S. Attorney's Office is working with some cooperating 
individual and working some kind of deal to get somebody else? 
Are those the type of cases that that would apply to, in your 
opinion?
    Mr. Rothenberg. I believe that is one example. I think that 
is correct.
    There are circumstances in which a pre-indictment plea 
agreement is in the best interest of all the parties involved 
in order to successfully conclude a prosecution, and sometimes 
it is not possible to provide pre-indictment notice to the 
victims.
    Mr. Poe. And one other comment that she made. Do you think 
Congress needs to clarify as to when these rights actually take 
effect pre-indictment, at indictment or someplace? Do you think 
Congress has that responsibility to make it clear to everybody?
    Mr. Rothenberg. Well, as a number of the witnesses have 
said, we have taken a position regarding that in terms of the 
policy matter as to whether the law should be changed. We are 
happy to work with the Subcommittee on finding it.
    Mr. Poe. Okay. You will follow whatever it is.
    Other than money, which in my opinion it is appallingly low 
for this legislation, embarrassingly low in how little money is 
applied to this Act, what is one thing each of you would like 
to see now 5 years down the road--here we are 5 years since the 
legislation was enacted--to improve the law in any aspect, 
other than money?
    We will just go down the row. Ms. Larence.
    Ms. Larence. In our report, we identify a number of areas 
where the courts are still trying to interpret some of the 
provisions of the Act. And it is fairly early, and there is not 
a body of case law on those issues. So GAO did not take a 
position on whether or not Congress needs to change the law to 
address those issues. In the one case that we did, though, it 
was pretty clear from all of those involved they would like the 
Congress to clarify how the law applies to the District of 
Columbia.
    Mr. Poe. Okay. Mr. Rothenberg.
    Mr. Rothenberg. Uh----
    Mr. Poe. You are satisfied with the way it is?
    Mr. Rothenberg. We are--the Department of Justice is fully 
committed to enforcing the Crime Victims' Rights Act. We 
believe that we are doing our best efforts right now, and we 
look forward to working with the Committee on any changes that 
you deem appropriate.
    Mr. Poe. Okay. Ms. Leary.
    Ms. Leary. I don't know that I would recommend any specific 
changes to the statute, but I do hope and I expect that as time 
goes by the awareness of victims' rights, the importance of 
protecting them and the mechanisms, the legal mechanisms 
actually available to victims will become more and more widely 
recognized and utilized. And I do think we will see that 
happen. We have seen that in other areas of victims' rights.
    Mr. Poe. Professor.
    Mr. Beloof. Standard of review--can I have two?
    Mr. Poe. Yes. If they didn't have any, you can have one for 
each one of them.
    Mr. Beloof. Standard of review and the concern Ms. Howley 
mentioned, making clear that victims can access certain of 
these rights prior to indictment.
    Mr. Poe. And I would like for you to turn that information 
over to the Chairman regarding those statistics on review, 
whether it is appeals or whether it is our mandamus.
    Mr. Beloof. I will do that. I can tell the Chair that there 
are no cases under the CVRA that have found that the CVRA 
violates criminal defendants rights, no reported cases.
    Mr. Scott. Let me just say this. I would not be surprised 
about that, because it is a statute, not a constitutional 
amendment. And I think that is one of the reasons we want it to 
be a statute, we can be a little more aggressive and didn't 
have to worry about that point.
    Thank you. I yield back.
    Mr. Poe. Ms. Howley.
    Ms. Howley. Along with the points that I have already 
raised in my oral testimony, I believe that the most important 
thing is to make the Department's Victims' Rights Compliance 
Program effective. The GAO report went into that in great 
detail, that the placement of the office and the current 
procedures are inadequate for the enforcement of victims' 
rights.
    We have seen at the State level that the existence of a 
meaningful compliance program makes all the difference, even 
though sanctions are rarely used. Just the existence makes 
people take the training more seriously, makes them pay more 
attention to the protocols and the implementation. It is my 
understanding that the working group is making some changes to 
the victims' rights ombudsman's office, but we have not seen 
those yet.
    Mr. Poe. I want to thank all of you for your work for 
victims. They don't have a high-dollar lobbyist up here in 
Washington, D.C.; and so it is people like you that look out 
for them. I want to thank you.
    And I yield back, Mr. Chairman.
    Mr. Scott. Thank you.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. I have no further 
questions.
    Mr. Scott. I just had one other question. Does each U.S. 
Attorney have a victim witness coordinator in each U.S. 
Attorney's Office?
    Ms. Leary. Yes. Every U.S. Attorney's Office has a victim 
witness coordinator.
    Mr. Scott. And in the Eastern District of Virginia where 
you have got an Alexandria, Richmond, Norfolk, and Newport News 
office, would there be one in each office or one for the whole 
district?
    Ms. Leary. I think in Virginia each one does. I can't be 
sure, but we will get back to you on that.
    I guess I should correct it. Almost every single office has 
a victim witness coordinator. There are some really small field 
offices out there, but the vast majority do have victim witness 
coordinators.
    Mr. Scott. And, Mr. Beloof and Ms. Howley, how effective 
are these coordinators?
    Mr. Beloof. Well, I think they are pretty effective. I 
think their hearts and professional commitment is largely in 
the mission. So I think it is a good thing, and it is good that 
they are in those offices. They are, of course, not attorneys. 
They are people who work for the attorneys. So it is a bit of 
an awkward relationship.
    Mr. Scott. Well, one of the things that we have to 
recognize is some of this is labor intensive. Coordinating, 
letting people know, and taking the time to treat people with 
the dignity that you would expect in a court system takes time; 
and if you have somebody whose job is just that, the job will 
get done. A U.S. Attorney with a stack full of files may cut 
people a little short, but if you have somebody whose job it is 
to take some time and describe when the hearing is coming up, 
when to show up, what to expect, that could be helpful. If you 
have enough of them.
    Ms. Howley. Exactly. I would say that the victim witness 
coordinators--and, also, at the investigative stage, the victim 
assistance--are what make victims' rights workable for the 
criminal justice system.
    Mr. Scott. Thank you.
    I would like to recognize the gentlelady from Texas is 
here. Do you have any questions, Ms. Jackson Lee?
    Ms. Jackson Lee. I would, but I would yield to the 
gentleman.
    Mr. Scott. The gentleman is done.
    Ms. Jackson Lee. Okay. I thought the gentleman just came 
in. Thank you very much, Mr. Chairman.
    I just landed, so I thank the witnesses for their testimony 
and wanted to make sure that at least represented to all of you 
as witnesses of my interests in this area.
    And let me ask Susan Howley, who is with the National 
Center for Victims of Crime, if she could--though it may be 
repetitive, and I apologize to you--but let me just make this 
my bearing question, if you will, as to the major legal 
legislative need and fix that victims do need in making sure 
that they are counted in the sentencing process, that they are 
compensated, and what kind of Federal laws are needed in 
contrast to what happens on the State level, which I know that 
the State of Texas has an active victims' rights compensation 
process.
    Ms. Howley. I would say that creating a meaningful 
compliance program or a meaningful avenue to enforce victims' 
rights is the most important thing that can be done. The CVRA 
has taken a number of important steps in that direction with 
the clarification of the applicability of the enforcement 
procedures to cases brought in District of Columbia Superior 
Court. And with changes to the Department of Justice's victims' 
rights ombudsman, the Federal system could be a model for the 
States, many of whom do not yet have enforcement programs.
    Ms. Jackson Lee. So do you think the Federal system needs 
to be enhanced to emphasize or fill in the gaps where States do 
not have a meaningful program?
    Ms. Howley. No. The Federal system could not be expanded to 
enforce these State victims' rights.
    Ms. Jackson Lee. Or to step in where there are no State 
victims' rights structures, the States that do not have them?
    Ms. Howley. Right. The States will have to create their own 
enforcement proceedings. Unless we went to a Federal victims' 
rights constitutional amendment, then the Federal system could 
step in and help enforce victims' rights at the State level.
    Ms. Jackson Lee. So what do you think should be the effort 
in encouraging States, since we think it is a priority, to 
implement their own structures?
    Ms. Howley. The first step would be to use the funding 
authorized in the CVRA to promote compliance or to promote the 
enforcement of victims' rights in the courts to fully fund that 
grant program.
    Ms. Jackson Lee. And what do you think and how do you think 
the victims' rights program are treating children who are 
victims? Is there sufficient protection for them in the 
process?
    Ms. Howley. Victims' rights generally attach to the parent 
or guardian of a minor victim. There are other rights outside 
of the CVRA and outside of standard bills of rights that 
provide alternate procedures that facilitate the participation 
of child victims and witnesses and protect them.
    Ms. Jackson Lee. Thank you.
    Professor Beloof, would you like to comment on whether or 
not the structure that we have, it relates to victims who 
happen to be children, and if you have any contrary views about 
this victims' rights structure?
    Mr. Beloof. The CVRA in relationship to children is drafted 
so that--let's say the parent is the perpetrator. The court can 
appoint a different representative for that child or counsel 
for that child. So we were conscious of that at the time it was 
drafted.
    In regards to your other structural question, the idea in 
the statute at CVRA was to use this funding to create 
incentives in States to come up with a similar victims' rights 
scheme. That is, this was to serve as a national model. It 
stands as the most progressive, forward-looking civil rights 
provision for victims that exist, but without the funding--and 
that is a central problem we have been talking about here--
there is little funding. There is little incentive for States 
to change.
    I was involved in my own State's change, probably because I 
was there and had a relationship with the Attorney General and 
we now have enforceable victims' rights. I was fortunate enough 
to be engaged with a person who had substantial assets who 
funded a similar kind of change in California. But, to my 
knowledge, since the CVRA was enacted and with this limited 
funding, those are the only two States that have tried to 
emulate the Federal model in the last 5 years.
    Ms. Jackson Lee. Well, let me thank the Chairman and 
Ranking Member for this hearing.
    I think what I am gleaning, for at least two witnesses, it 
may be--might even be with the same perspective or different 
perspective, is that we need to ramp up the voice for this 
legislation that would include funding. And we need to 
recognize, as we look at some very difficult times in America, 
crime rates soaring, some going down in some cities, which we 
recognize, no matter what level the crime rates are, the 
victims exist. And what comes to mind in particular is the City 
of Chicago that certainly has had its share of crisis with 
respect to youth violence.
    So I do want to thank the Chairman. It is something that we 
will look at I know individually and as this Committee.
    Mr. Chairman, thank you for your courtesies. I yield back.
    I thank the witnesses for their indulgence.
    Mr. Scott. Thank you.
    The gentleman from Texas.
    The gentleman from Virginia. Mr. Goodlatte, do you have any 
other questions?
    Mr. Goodlatte. No.
    Mr. Scott. Thank you.
    I would like to thank our witnesses for their testimony 
today. Members may have additional written questions we will 
forward to you and ask you to answer as promptly as you can in 
order that the answers may be part of the record.
    The hearing record will remain open for 1 week for the 
submission of additional materials; and, without objection, the 
Subcommittee stands adjourned.
    [Whereupon, at 5:27 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Pedro Pierluisi, a Representative 
   in Congress from Puerto Rico, and Member, Subcommittee on Crime, 
                    Terrorism, and Homeland Security
    Thank you, Mr. Chairman. I am grateful that you have convened this 
hearing today.
    In our criminal justice system, the person who has been most 
affected by a crime-the victim-plays no formal role in the legal 
proceeding connected to his or her case. While the government 
prosecutes the case and the alleged offender defends against the 
charges, the victim is left in a legal ``no man's land.''
    When I was Attorney General of Puerto Rico, I often met with 
victims who felt disconnected from the prosecution of their cases. 
Although I tried to involve victims as much as possible, it was clear 
to me that more formal mechanisms were needed to promote their 
participation.
    At the federal level, Congress recognized this problem and passed 
the Crime Victims Rights Act in 2004. The law provided federal crime 
victims with eight rights, including the right to be protected from the 
accused; the right to be notified of, and to participate in, court 
proceedings; and the right to confer with the prosecution. These rights 
re-oriented the relationship between victims and our criminal justice 
system by providing victims with an opportunity to be involved with the 
prosecution of their cases if they so chose.
    The GAO released a report last December that evaluated the 
implementation of the Crime Victims Act. That report found that the 
Justice Department and the federal courts have made significant efforts 
to implement the Act, and I applaud the Department and the courts for 
the steps it has taken to date. That said, there appears to be room for 
improvement both in the Act's implementation and in designing methods 
to monitor compliance with the Act. For example, a number of victims 
were not aware of their rights or of their ability to file an internal 
grievance when their rights were not being respected.
    I welcome our witnesses' thoughts on the GAO's recommendations and, 
more broadly, on how we can improve implementation of the Act and 
better ensure that all victims are able to assert their rights. I look 
forward to having a productive dialogue today, and I appreciate the 
witnesses' testimony.

                                







                                 
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