[Congressional Record (Bound Edition), Volume 157 (2011), Part 6]
[Senate]
[Pages 8854-8855]
[From the U.S. 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:

                                                  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

[[Page 8855]]

     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 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.

                          ____________________