[Congressional Record Volume 157, Number 82 (Wednesday, June 8, 2011)]
[Senate]
[Pages S3607-S3609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CRIME VICTIMS' RIGHTS ACT
Mr. KYL. Mr. President, I ask unanimous consent that the following
letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S3608]]
U.S. Senate,
Washington, DC, June 6, 2011.
Hon. Eric H. Holder, Jr.,
Attorney General, U.S. Department of Justice, Washington, DC.
Dear Attorney General Holder: I am writing about the
Justice Department's implementation of the Crime Victims'
Rights Act--an act that I co-sponsored in 2004. These
questions relate to an Office of Legal Counsel (``OLC'')
Opinion made public on May 20, 2011 and more broadly to
concerns I have heard from crime victims' advocates that the
Department has been thwarting effective implementation of the
Act by failing to extend the Act to the investigative phases
of criminal cases and by preventing effective appellate
enforcement of victims' rights. I am writing to ask you to
answer these questions and explain the Department's actions
in these areas.
Government Protection of Victims' Rights During Investigation of a
Crime
When Congress enacted the CVRA, it intended to protect
crime victims throughout the criminal justice process--from
the investigative phases to the final conclusion of a case.
Congress could not have been clearer in its direction that
using ``best efforts'' to enforce the CVRA was an obligation
of ``[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 . . . .'' 18 U.S.C. Sec. 3771(c)(1) (emphasis added).
Congress also permitted crime victims to assert their rights
either in the court in which formal charges had already been
filed ``or, if no prosecution is underway, in the district
court in the district in which the crime occurred.'' 18
U.S.C. Sec. 3771(d)(3) (emphasis added).
Despite Congress' clear intention to extend rights to crime
victims throughout the process, the Justice Department is
reading the CVRA much more narrowly. In the recent OLC
opinion, for example, the Department takes the position 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).'' The Availability of Crime Victims'
Rights Under the Crime Victims' Rights Act of 2004,
Memorandum from John E. Bies (Dec. 17, 2010, publicly
released May 20, 2011) (hereinafter ``OLC Opinion''). Indeed,
in that same opinion, I am surprised to see the Department
citing a snippet from my floor remarks during the passage of
the CVRA for the proposition that crime victims can confer
with prosecutors only after the formal filing of charges. See
id. at 9 (citing 150 Cong. Rec. S4260, S4268 (Apr. 22, 2004)
(statement of Sen. Kyl).
I did want to express my surprise that your prosecutors are
so clearly quoting my remarks out of context. Here is the
full passage of my remarks, which were part of a colloquy
with my co-sponsor on the CVRA, Senator Feinstein:
Senator Feinstein: Section . . . (a)(5) provides a right to
confer with the attorney for the Government in the case. This
right is intended to be expansive. For example, the victim
has the right to confer with the Government concerning any
critical stage or disposition of the case. The right,
however, is not limited to these examples. I ask the Senator
if he concurs in this intent.
Senator Kyl: Yes. The intent of this section is just as the
Senator says. This right to confer does not give the crime
victim any right to direct the prosecution. Prosecutors
should consider it part of their profession to be available
to consult with crime victims about concerns the victims may
have which are pertinent to the case, case proceedings or
dispositions. Under this provision, victims are able to
confer with the Government's attorney about proceedings after
charging.
150 Cong. Rec. S4260, S4268 (Apr. 22, 2004) (statements of
Sens. Feinstein & Kyl) (emphases added). Read in context, it
is obvious that the main point of my remarks was that a
victim's right to confer was ``intended to be expansive.''
Senator Feinstein and I then gave various examples of
situations in which victims could confer with prosecutors,
with the note that the right to confer was ``not limited to
these examples.'' It is therefore troubling to me that in
this opinion the Justice Department is quoting only a limited
portion of my remarks and wrenching them out of context to
suggest that I think that crime victims do not have any right
to confer (or to be treated with fairness) until after
charging.
In giving an example that the victims would have such
rights after charging, I was not suggesting that they had no
such right earlier in the process. Elsewhere in my remarks I
made clear that crime victims had rights under the CVRA even
before an indictment is filed. For example, in the passage
quoted above, I made clear that crime victims had a right to
consult about both ``the case'' and ``case proceedings''--
i.e., both about how the case was being handled before being
filed in court and then later how the case was being handled
in court ``proceedings.'' As another example, Senator
Feinstein and I explained that we had drafted the CVRA to
extend a right to victims to attend only ``public''
proceedings, because otherwise the rights would extend to
grand jury proceedings. See, e.g., 150 Cong. Rec. S4260,
S4268 (Apr. 22, 2004) (statements of Sens. Feinstein & Kyl).
Of course, no such limitation would have been necessary under
the CVRA if CVRA rights attach (as the Department seems to
think) only after the filing of a grand jury indictment.
Courts have already rejected the Justice Department's
position that the CVRA applies only after an indictment is
filed. For example, in In re Dean, 527 F.3d 391 (5th Cir.
2008), the Department took the position that crime victims
had no right to confer with prosecutors until after the
Department had reached and signed a plea agreement with a
corporation (BP Products North America) whose illegal actions
had resulted in the deaths of fifteen workers in an oil
refinery explosion. Of course, this position meant that
the victims could have no role in shaping any plea deal
that the Department reached. In rejecting the Department's
position, the Fifth Circuit held that ``the government
should have fashioned a reasonable way to inform the
victims of the likelihood of criminal charges and to
ascertain the victims' views on the possible details of a
plea bargain.'' Id. at 394.
In spite of this binding decision from the Fifth Circuit,
crime victims' advocates have reported to me that the Justice
Department is still proceeding in the Fifth Circuit and
elsewhere on the assumption that it has no obligations to
treat victims fairly or to confer with them until after
charges are formally filed. Given the Fifth Circuit's Dean
decision, this position appears to place the Department in
violation of a binding court ruling that extends rights to
thousands of crime victims in Louisiana, Mississippi, and
Texas. And more generally, the Department's position simply
has no grounding in the clear language of the CVRA.
My first question: What is the Justice Department doing to
extend to victims their right to fair treatment and their
right to confer with prosecutors when the Justice Department
is negotiating pre-indictment plea agreements and non-
prosecution agreements with defense attorneys, including
negotiations within the Fifth Circuit?
Crime Victims' Right to Appellate Protection
Protection of crime victims' rights in appellate courts is
an important part of the CVRA. As you know, when Congress
passed the CVRA, the federal courts of appeals had recognized
that crime victims could take ordinary appeals to protect
their rights. See, e.g., Doe v. United States, 666 F.2d 43,
46 (4th Cir. 1981) (rape victim allowed to appeal district
court's adverse ``rape shield statute'' ruling); United
States v. Kones, 77 F.3d 66 (3rd Cir. 1996) (victim allowed
to appeal adverse restitution decision). Congress sought to
leave these protections in place, while expanding them to
ensure that crime victims could obtain quick vindication of
their rights in appellate courts by providing--in
Sec. 3771(d)(3)--that ``[i]f the district court denies the
relief sought, the [victim] may petition the court of appeals
for a writ of mandamus.'' 18 U.S.C. Sec. 3771(d)(3).
Ordinarily, whether mandamus relief should issue is
discretionary. The plain language of the CVRA, however,
specifically and clearly overruled such discretionary
mandamus standards by directing that ``[t]he court of appeals
shall take up and decide such application forthwith . . . .''
18 U.S.C. Sec. 3771(d)(3) (emphasis added). As I explained
when the Senate considered the CVRA:
[W]hile mandamus is generally discretionary, this provision
[18 U.S.C. Sec. 3771(d)(3)] means that courts must review
these cases. Appellate review of denials of victims' rights
is just as important as the initial assertion of a victim's
right. This provision ensures review and encourages courts to
broadly defend the victims' rights.
150 Cong. Rec. S4270 (Apr. 22, 2004) (statement of Sen. Kyl)
(emphases added). Similarly, the CVRA's co-sponsor with me,
Senator Feinstein, stated that the Act would create ``a new
use of a very old procedure, the writ of mandamus. This
provision will establish a procedure where a crime victim
can, in essence, immediately appeal a denial of their rights
by a trial court to the court of appeals.'' 150 Cong. Rec.
S4262 (statement of Sen. Feinstein) (emphases added); see
also id. (statement of Sen. Kyl) (crime victims must ``be
able to have . . . the appellate courts take the appeal and
order relief). In short, the legislative history shows that
Sec. 3771(d)(3) was intended to allow crime victims to take
accelerated appeals from district court decisions denying
their rights and have their appeals reviewed under ordinary
standards of appellate review.
In spite of that unequivocal legislative history, the
Justice Department has in past cases asserted a contrary
position. In In re Antrobus, 519 F.3d 1123 (10th Cir. 2008),
Ken and Sue Antrobus sought to obtain appellate review of a
ruling by a trial court that they could not deliver a victim
impact statement at the sentencing of the man who sold the
murder weapon used to kill their daughter. The Tenth Circuit
ruled against them on the basis that the Antrobuses were not
entitled to regular appellate review, but only discretionary
mandamus review. See id. at 1124-25. The Tenth Circuit did
not consider the legislative history in reaching this
conclusion, leading the Antrobuses to file petitions for
rehearing and rehearing en banc--petitions that recounted
this legislative history. In response, the Justice Department
asked the Tenth Circuit to deny the victims' petitions.
Remarkably, the Justice Department told the Tenth Circuit
that it could ignore the
[[Page S3609]]
legislative history because the CVRA ``is unambiguous.''
Response of the United States, In re Antrobus, No. 08-4002,
at 12 n.7 (10th Cir. Feb. 12, 2008).
At the time that the Justice Department filed this brief,
no Court of Appeals agreed with the Tenth Circuit. At the
time, three other Circuits had all issued unanimous rulings
that crime victims were entitled to regular appellate review.
See In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562 (2d
Cir. 2005); Kenna v. US. Dist. Ct. for the Cent. Dist. of
Ca., 435 F.3d 1011, 1017 (9th Cir. 2006); In re Walsh, 229
Fed.Appx. 58, at 60 (3rd Cir. 2007).
My next question for you is, given that the Justice
Department has an obligation to use its ``best efforts,'' 18
U.S.C. Sec. 3771(c)(1), to afford crime victims their rights,
how could the Department argue in Antrobus (and later cases)
that the CVRA ``unambiguously'' denied crime victims regular
appellate protections of their rights when three circuits had
reached the opposite conclusion?
Government's Right to Assert Error Denial of Victims' Rights
To further bolster protection of crime victims' rights,
Congress also included an additional provision in the CVRA--
Sec. 3771(d)(4)--allowing the Justice Department to obtain
review of crime victims' rights issues in appeals filed by
defendants: ``In any appeal in a criminal case, the
Government may assert as error the district court's denial of
any crime victim's right in the proceeding to which the
appeal relates.'' 18 U.S.C. Sec. 3771(d)(4). The intent
underlying this provision was to supplement the crime
victims' appeal provision found in Sec. 3771(d)(3) by
permitting the Department to also help develop a body of case
law expanding crime victims' rights in the many defense
appeals that are filed. It was not intended to in any way
narrow crime victims' rights to seek relief under
Sec. 3771(d)(3). Nor was it intended to bar crime victims
from asserting other remedies. For instance, it was not
intended to block crime victims from taking an ordinary
appeal from an adverse decision affecting their rights (such
as a decision denying restitution) under 28 U.S.C. Sec. 1291.
Crime victims had been allowed to take such appeals in
various circuits even before the passage of the CVRA. See,
e.g., United States v. Kones, 77 F.3d 66 (3rd Cir. 1996)
(crime victim allowed to appeal restitution ruling); United
States v. Perry, 360 F.3d 519 (6th Cir. 2004) (crime victims
allowed to appeal restitution lien issue); Doe v. United
States, 666 F.2d 43, 46 (4th Cir. 1981) (crime victim allowed
to appeal rape shield ruling).
As I explained at the time the CVRA was under
consideration, this provision supplemented those pre-existing
decisions by ``allow[ing] the Government to assert a victim's
right on appeal even when it is the defendant who seeks
appeal of his or her conviction. This ensures that victims'
rights are protected throughout the criminal justice process
and that they do not fall by the wayside during what can
often be an extended appeal that the victim is not a party
to.'' 150 Cong. Rec. S4270 (Apr. 22, 2004) (statement of Sen.
Kyl).
I have heard from crime victims' advocates that the
Department has not been actively enforcing this provision.
Indeed, these advocates tell me that they are unaware of even
a single case where the Department has used this supplemental
remedy. My final question: Is it true that the Department has
never used this provision in even a single case in the more
than six years since the CVRA was enacted?
Sincerely,
Jon Kyl,
U.S. Senator.
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