[Congressional Record (Bound Edition), Volume 157 (2011), Part 12]
[Senate]
[Pages 17053-17054]
[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 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' 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

[[Page 17054]]

     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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