[Congressional Record Volume 157, Number 166 (Wednesday, November 2, 2011)]
[Senate]
[Pages S7060-S7061]
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 to have printed in
the Record a letter to Attorney General Holder.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, November 2, 2011.
Hon. Eric H. Holder, Jr.,
Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Attorney General Holder: I am writing to follow up
regarding my June 6, 2011 letter to you concerning the
Justice Department's implementation of the Crime Victims'
Rights Act--an Act that I co-sponsored. I am writing to ask
why the Justice Department persists in taking the view that
the CVRA does not extend rights to crime victims until the
formal filing of criminal charges.
As I explained in my earlier letter to you, Congress
intended the CVRA to broadly 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).
As you know, it has now been more than four months since I
sent the letter to you explaining this clear point. In those
four months, I have not received any response from you.
Instead, during that time, on October 1, 2011, you
promulgated new Attorney General Guidelines for Victims and
Witness Assistance. These Guidelines persist in misconstruing
the CVRA so that it does not extend any rights to victims
until charges have been filed. Your Guidelines state: ``CVRA
rights attach when criminal proceedings are initiated by
complaint, information, or indictment.'' Guidelines at 8.
The Guidelines you have promulgated now conflict quite
clearly with the CVRA's plain language. This is not simply my
view. One court of appeals has addressed the issue of whether
the CVRA applies only after charges have been filed. 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
federal prosecutors until the Department had filed a plea
agreement in court. The agreement involved a corporation (BP
Products North America) whose illegal actions had resulted in
the deaths of fifteen workers in an oil refinery explosion.
In rejecting the Department's position that it did not have
to confer with victims earlier, 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 U.S. Court of
Appeals for the Fifth Circuit, you have now promulgated
guidelines that directly conflict with that decision. As a
result, it continues to appear to me (as I noted in my
earlier letter) that your prosecutors are failing to extend
rights to potentially thousands of crime victims within the
Fifth Circuit in Louisiana, Mississippi, and Texas.
The Fifth Circuit's decision is hardly an outlier. To the
contrary, so far as I have been able to determine, the Fifth
Circuit's position is supported by all other court decisions
that have decided the issue. For example, in United States v.
Rubin, 558 F.Supp.2d 411, 419 (E.D.N.Y. 2008), the court
discussed a claim by various movants that they had been
victimized by a criminal fraud. The court explained that CVRA
can attach before charges are filed:
Quite understandably, movants perceive their victimization
as having begun long before the government got around to
filing the superseding indictment. They also believe their
rights under the CVRA ripened at the moment of actual
victimization, or at least at the point when they first
contacted the government. Movants rely on a decision from the
Southern District of Texas for the notion that CVRA rights
apply prior to any prosecution. In United States v. BP
Products North America, Inc., the district court reasoned
that because Sec. 3771(d)(3) provided for the assertion of
CVRA rights ``in the district court in which a defendant is
being prosecuted for the crime or, if no prosecution is
underway, in the district court in the district in which the
crime occurred,'' the CVRA clearly provided for ``rights . .
. that apply before any prosecution is underway.'' United
States v. BP Products North America, Inc., Criminal No. H-07-
434, 2008 WL 501321 at *11 (S.D. Tex. Feb. 21, 2008)
(emphasis in original), mandamus denied in part, In re Dean,
527 F.3d 391 (5th Cir. 2008). But, assuming that it was
within the contemplation and intendment of the CVRA to
guarantee certain victim's rights prior to formal
commencement of a criminal proceeding, the universe of such
rights clearly has its logical limits. For example, the realm
of cases in which the CVRA might apply despite no prosecution
being ``underway,'' cannot be read to include the victims of
uncharged crimes that the government has not even
contemplated.
Rubin, 558 F.Supp.2d at 419.
United States v. Okun, 2009 WL 790042 (E.D. Va. 2009), also
reached the same conclusion that CVRA rights can apply before
charges are filed:
Victims have been permitted to exercise CVRA rights before
a determination of the defendant's guilt. See, e.g., United
States v. Edwards, 526 F.3d 747, 757-58 (11th Cir. 2008); In
re Mikhel, 453 F.3d 1137, 1138-39 (9th Cir. 2006) (per
curiam); see also United States v. Rubin, 558 F.Supp.2d 211,
418 (E.D.N.Y. 2008) (anyone the government identifies as
harmed by the defendant's conduct is a victim). Furthermore,
the Fifth Circuit has noted that victims acquire rights under
the CVRA even before prosecution. See In re Dean, 527 F.3d
391, 394 (5th Cir. 2008). This view is supported by the
statutory language, which gives the victims rights before
the accepting of plea agreements and, therefore, before
adjudication of guilt. See 18 U.S.C. Sec. 3771(a)(4).
Okun, 2009 WL 790042 at *2.
Also agreeing that at least some CVRA rights apply before
charging is In re Peterson, 2010 WL 5108692 (N.D. Ind. 2010).
The court acknowledged that some rights in the CVRA do not
apply before charges have been filed. But the court also
specifically held that ``a victim's `right to be treated with
fairness and with respect for [his or her] dignity and
privacy,' 18 U.S.C. Sec. 3771(a)(8), may apply before any
prosecution is underway and isn't necessarily tied to a
`court proceeding' or `case,' In re Dean, 527 F.3d 391, 394
(5th Cir. 2008); United States v. BP Products North America,
Inc., 2008 WL 501321 (S.D. Tex. 2008).'' Peterson, 2010 WL
5108692 at *2.
The most recent court decision to carefully review the
Justice Department's position is Jane Does #1 and #2 v.
United States, No. 08-80736-CIV-MARRA/JOHNSON (S.D. Fla.
Sept. 26, 2011). In that case, the court flatly rejected the
Department's claim that rights attach only after charges are
formally filed:
The Court first addresses the threshold issue whether the
CVRA attaches before the government brings formal charges
against the defendant[.] The Court holds that it does because
the statutory language clearly contemplates pre-charge
proceedings. For instance, subsections (a)(2) and (a)(3)
provide rights that attach to ``any public court proceeding .
. . involving the crime.'' Similarly, subsection (b) requires
courts to ensure CVRA rights in ``any court proceeding
involving an offense against a crime victim.'' Court
proceedings involving the crime are not limited to post-
complaint or post-indictment proceedings, but can also
include initial appearances and bond hearings, both of which
can take place before a formal charge. . . .
Subsection (c)(1) requires that ``Officers and employees of
the Department of Justice and other departments and agencies
of the United States engaged in the detection, investigation,
or prosecution of crime shall make their best efforts to see
that crime victims are notified of, and accorded, the rights
in subsection (a).'' (Emphasis added). Subsection (c)(1)'s
requirement that officials engaged in ``detection [or]
investigation'' afford victims the rights enumerated in
subsection (a) surely contemplates pre-charge application of
the CVRA.
Subsection (d)(3) explains that the CVRA's enumerated
rights ``shall be asserted in the district court in which a
defendant is being prosecuted for the crime or, if no
prosecution is underway, in the district court in the
district in which the crime occurred.'' (Emphasis added). If
the CVRA's rights may be enforced before a prosecution is
underway, then, to avoid a strained reading of the statute,
those rights must attach before a complaint or indictment
formally charges the defendant with the crime.
Id. at *3-4.
In sum, the plain language of the CVRA--and every reported
court decision I have been able to find--all clearly indicate
that the CVRA does extend rights to crime victims even before
charges are filed. Yet in spite of this, the Justice
Department has apparently prepared a new form letter to be
sent to victims that specifically tells crime victims that
they lack any rights in federal criminal cases before charges
have been filed in federal court. As I understand it, this
letter will be sent to victims in federal cases around the
country (including victims in the Fifth Circuit, the Eastern
District of New York, the Eastern District of Virginia, the
Northern District of Indiana, and the Southern District of
Florida) telling them that they should ``[p]lease understand
that these rights only apply to victims of the counts charged
in federal court. . . .''
Compounding the confusion is the fact that your own
Guidelines make it a matter of policy to confer with victims
about plea negotiations even before charges have been filed.
The new Attorney General Guidelines for Victims and Witness
Assistance specifically state: ``In circumstances where plea
negotiations occur before a case has been brought, Department
policy is that this should include reasonable consultations
prior to filing a charging instrument with the court.''
Guidelines at 41. I can only assume that this new policy has
been put in place to avoid the outrageous situations that
occurred in the Dean case and the Jane Does case, where
prosecutors did not confer with victims before the Government
reached final agreements with defendants. But the policy
would seem to be a complete dead letter if you
[[Page S7061]]
never notify victims that they have a right under the CVRA to
confer with the prosecutors.
In light of all this, I am writing to ask you several
questions. First, when will you send an answer to the
questions I raised in my June 6, 2011 letter? Second, why is
the Department failing to follow the CVRA's plain language,
as interpreted by these court decisions, and delaying
extending crime victims their CVRA rights until after formal
charges have been filed? And third, what is the Department
doing to implement the Fifth Circuit's binding decision in In
re Dean that crime victims can have rights under the CVRA
even before criminal charges are filed?
Sincerely,
Jon Kyl,
United States Senator.
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