[Congressional Record (Bound Edition), Volume 157 (2011), Part 12]
[Senate]
[Pages 16545-16546]
[From the U.S. 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

[[Page 16546]]

     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 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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