[Congressional Record Volume 157, Number 172 (Thursday, November 10, 2011)]
[Senate]
[Pages S7359-S7360]
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 from Attorney General Holder.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Washington, DC, November 3, 2011.
Hon. Jon Kyl,
U.S. Senate, Washington, DC.
Dear Senator Kyl: This responds to your letters to Attorney
General Holder dated June 6, 2011, and November 2, 2011,
regarding the Department of Justice's implementation and
enforcement of the Crime Victims'
[[Page S7360]]
Rights Act (CVRA), enacted as section 102 of the Justice for
All Act of 2004. Pub. L. No. 108-405, 118 Stat. 2260, 2261-64
(codified at 18 U.S.C. Sec. 3771 (2006 & Supp. III 2009)). We
apologize for our delay in responding to your June 6 letter.
Your November 2 letter raises additional questions, to which
we will reply as soon as possible.
The Department appreciates your leadership in the area of
protecting crime victims' rights, and we share your
commitment to ensuring that crime victims receive the rights
and services to which they are entitled under federal law. In
the six years since passage of the CVRA, Department personnel
have made their best efforts in thousands of federal and
District of Columbia cases to assert, support, and defend
crime victims' rights, often over the objections of
defendants, and occasionally in the face of a skeptical
judiciary.
Every day, federal prosecutors and victim-witness
professionals consult with victims, inform them of their
rights, including the right to be represented by an attorney,
accompany them to court, and assist them with preparing
victim impact statements and seeking and recovering
restitution. The number of identified victims registered in
our automated system in order to receive notices and other
services has grown significantly, totaling 2.2 million in
Fiscal Year 2010. In that year, the Department sent out 8
million notifications of public court proceedings to victims
to ensure that persons harmed by the charged conduct were
informed about those proceedings. In contrast, the year
before the CVRA passed, 2.7 million such notices were sent.
In addition, U.S. Attorneys' Offices are increasingly using
asset forfeiture laws to help victims by applying forfeited
assets to satisfy restitution orders. These efforts have
resulted in measurable improvements for victims; the amount
of forfeited proceeds returned to victims has jumped from
$13.7 million in FY 2004 to $250 million in the first 8
months of FY 2011.
In 2009, the Government Accountability Office (GAO)
conducted an extensive evaluation of the Department's CVRA
implementation efforts. GAO considered the views of victims,
victim-witness professionals, federal investigators,
prosecutors, defense attorneys, and judges during the audit.
The GAO concluded that the Department and the federal
judiciary ``have made various efforts to implement the
CVRA,'' and ``have taken actions to address four factors that
have affected CVRA implementation, including the
characteristics of certain cases, the increased workload of
some USAO staff, the scheduling of court proceedings, and
diverging interests between the prosecution and victims.''
See Crime Victims' Rights Act: Increasing Victim Awareness
and Clarifying Applicability to the District of Columbia Will
Improve Implementation of the Act: Hearing Before the H.
Comm. on the Judiciary, 110th Cong. at 8 (2009) (statement of
Eileen R. Larence, Director, Homeland Security and Justice,
Government Accountability Office). The GAO ultimately offered
only minor recommendations for improvements, all of which
have been significantly addressed.
Your June 6 letter posed three questions regarding victims'
rights. First, you asked about the fair treatment of crime
victims prior to charging, specifically during pre-charge
plea and non-prosecution negotiations. In 2010, the Attorney
General directed the Deputy Attorney General to convene a
working group to help evaluate, coordinate, and improve the
services the Department provides to crime victims and
witnesses. The working group undertook a revision of the
Department's basic operational policy manual, the Attorney
General Guidelines for Victim and Witness Assistance (AG
Guidelines). As you noted in your November 2 letter, the
revised 2011 AG Guidelines (available at www.justice.gov/olp/
pdf/ag_guidelines2011
.pdf) took effect on October 1, 2011. As part of the revision
process, the working group sought input from all Departmental
components that interact with victims of crime and, with
respect to certain difficult legal issues, sought guidance
from the Office of Legal Counsel (OLC). Regarding when the
rights accorded by the CVRA apply, OLC determined the statute
is best read as providing that rights apply beginning when
criminal proceedings are initiated. Even so, the new AG
Guidelines go further and provide that Department prosecutors
should make reasonable efforts to notify identified victims
of, and consider victims' views about, prospective plea
negotiations, even prior to the filing of a charging
instrument with the court. Art. V.0.2, AG Guidelines (2011
ed.).
Additionally, the revised AG Guidelines strengthen and
clarify the Department's policies by encouraging Department
personnel to go beyond minimum statutory requirements to
assist crime victims at all points in the criminal justice
process. Even for those who do not qualify under statutory
victim definitions, the revised AG Guidelines authorize the
provision of services and information, and support
participation by victims in court proceedings. See Art. 11.A
and Art. III.E, AG Guidelines (2011 ed.).
Moreover, in addition to carrying out our responsibilities
under the CVRA, the Department is taking other steps to
fulfill its mandate to provide services to crime victims from
the opening of a criminal investigation. Pursuant to the
Victims' Rights and Restitution Act of 1990 (VRRA), the
Department identifies victims and provides to them service
referrals, reasonable protection, notice concerning the
status of the investigation, and information about the
criminal justice process prior to the filing of any charges.
The Department's investigative agencies provide such services
to thousands of victims every year, whether or not
the investigation results in a federal prosecution. The
Federal Bureau of Investigation (FBI) alone reports it
provided more than 190,000 services to victims during the
past fiscal year, including case status updates,
assistance with compensation applications and referrals,
and counseling referrals. From sexual assaults in Indian
Country to child pornography and human trafficking to mass
violence and overseas terrorism, FBI victim specialists
provide much-needed immediate and ongoing support and
information to victims. The FBI addresses victim safety
issues when needed, providing on-scene response and crisis
intervention services in thousands of investigations. With
regard to sexual assault victims, FBI personnel arrange
for and often accompany victims to forensic sexual assault
medical examinations and provide assistance with HIV/STD
testing. In sum, the Department's assistance to victims
during the investigatory stage exemplifies a commitment to
crime victims above and beyond the statutory mandates.
Second, you asked about the Department's litigation
position regarding the standard of review for mandamus cases
filed pursuant to the CVRA. The CVRA constitutes a
significant, large-scale change in the operation of the
federal criminal justice system. For that reason, and because
the rights of crime victims must be balanced against
recognized rights of criminal defendants, it was inevitable
that CVRA implementation would be accompanied by litigation
concerning its provisions. The Department has been actively
engaged in that litigation, frequently on the side of the
victims, seeking to enforce their rights in court. The
litigating decisions we make in those cases are reached only
after careful consideration of both the language and the
purpose of the CVRA, and of our responsibility to foster a
fair criminal justice system that respects the rights of all
involved, including victims and defendants. Even when we
conclude that victim status is inappropriate, or that a
certain claimed right should not be accorded to the person
seeking it, we often try to find other ways to accommodate
that person's legitimate interests in the outcome of the
criminal case at hand.
Concerning the mandamus standard of review, the
Department's legal analysis is set forth in the brief that
you cite in your letter, In re Antrobus, No. 08-4002 (10th
Cir. Feb. 12, 2008). As you note, the CVRA requires that the
Department use its ``best efforts'' to afford crime victims
their CVRA rights. 18 U.S.C. Sec. 3771(c)(1) (``Officers and
employees of the Department of Justice and other departments
and agencies of the United States engaged in the detection,
investigation, or prosecution of crime shall make their best
efforts to see that crime victims are notified of, and
accorded, the rights described in [18 U.S.C.
Sec. 3771(a)].''). The Department makes its best efforts on a
daily basis to ensure victims are notified of and accorded
such rights. Indeed, the new AG Guidelines specifically
instruct Department personnel to consider a victim's right to
fairness when developing and presenting the government's
arguments. Art. V.J.3, AG Guidelines (2011 ed.).
Finally, you asked whether the Department has asserted
victims' rights on an appeal, even when the appeal is taken
by the defendant appealing his or her conviction. See 18
U.S.C. Sec. 3771(d)(4) (``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.'') We do not maintain statistics on the
use of this provision and, therefore, cannot answer this
question definitively. We note, however, that the potential
utility of this provision is limited, with the exception of a
narrow category of cases; an appellate court typically would
not be able to grant any relief to correct a CVRA error
asserted in response to a defendant's appeal, other than
issuing an advisory opinion. We will continue to keep this
provision in mind as we evaluate cases in the future and, as
we have done in the past, we will continue to defend
convictions on appeal in the face of defense challenges to
victims' assertions of rights.
Thank you for your interest in the Department's efforts to
accord the victims of federal crimes their rights under
federal law. We welcome the opportunity to work with you and
your staff to ensure that crime victims receive the rights
and services they deserve. We hope this information is
helpful. Please do not hesitate to contact this office if we
may provide additional assistance regarding this, or any
other matter.
Sincerely,
Ronald Weich,
Assistant Attorney General.
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