Analysis of OLC Memorandum on CVRA Rights and Pre‑Charging Victim Protections

Page 15 of 31 104 J. Crim. L. & Criminology 59, *80 that "most courts ... have declined to extend enforceable rights under the CVRA to alleged victims of conduct that did not lead to criminal proceedings." !!> All the courts that have actually reached the issue have concluded exactly the opposite. !!° B. OLC'S DISTORTION OF THE CVRA'S STRUCTURE AND LEGISLATIVE HISTORY The next section of OLC’s memorandum maintains that the CVRA's structure and legislative history lead to the conclusion that the CVRA is "best understood" as extending rights after charges have been filed. Here again, OLC's analysis is truncated at best and misleading at worst. OLC begins this part of its analysis by observing that some of the rights in the CVRA are limited to court proceedings. OLC notes, for example, that the CVRA gives victims the "right to reasonable, accurate, and timely notice of any public court proceeding ... involving the crime." !!7 But the fact that some of the rights listed in the CVRA apply to court proceedings hardly means that all of the rights are to be so restricted. The federal criminal justice process includes stages that are pre- charging, post-charging, and post-conviction. It would hardly be surprising to find that a statute that Congress intended to be n 118 "broad and encompassing covered events occurring after the filing of charges. Indeed, OLC appears to recognize that at least three of the rights listed in the CVRA could easily apply before charges are filed: (1) the "right to be reasonably protected from the accused"; (2) the "reasonable right to confer with the attorney for the Government in the case"; and (3) the "right to be treated with fairness and with respect for the victim's dignity and privacy." 119 None of these rights explicitly refer to court "proceedings" or other events (such as parole hearings) that necessarily occur after the filing of formal charges. !7° [*81] For purposes of this Article, it is appropriate to focus on the last two of these three rights: the right to confer and the right to fair treatment. The first of these three rights - the right to be reasonably protected - is already clearly extended by another statute to crime victims before the filing of charges. While OLC does not acknowledge this fact, the VRRA extends the first right to crime victims, directing that a "responsible official shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender." !7! Because a "suspected" offender obviously exists before the filing of criminal charges, the VRRA envisions the right to protection being provided as soon as is practical after a victim suffers from the commission of a crime. Additionally, the sections of the Attorney General Guidelines for Victim and Witness Assistance addressing the VRRA direct that Justice Department components must provide reasonable protection even before the filing of criminal charges. !?* So, under the VRRA, the Justice Department should > OLC CVRA Rights Memo, supra note 2, at 5-6. Notably, the Department does not embrace the language from Huff found within the Skinner and Paletz decisions because presumably such an approach would be contrary to many of the rights found in the CVRA. ® See infra Part I.C. 7 OLC CVRA Rights Memo, supra note 2, at 6 (emphasis added) (quoting /8 U.S.C. § 3771 (a)(2)). 8 150 Cong. Rec. 7295 (2004) (statement of Sen. Dianne Feinstein). ° OLC CVRA Rights Memo, supra note 2, at 7-8, 10 (quoting 78 U.S.C. § 3771 (a)(1), (5), (8)). 20 OLC appears to have overlooked another right that could well apply before charges are filed: the right to be notified of one's rights under the CVRA. See 18 U.S.C. § 3771(c)(1) (requiring prosecutors to "make their best efforts to see that crime victims are notified of, and accorded, the rights described in [the CVRA]"); United States v. Rubin, 558 F. Supp. 2d 411, 428 (E.D.N.Y. 2008) (discussing potential application of the right to notification of rights before charges are filed). For purposes of this Article, it is not necessary to explore this right in detail. If other CVRA rights apply before charges are filed, a fortiori this right does as well. If a victim has a right, presumably the victim should be notified of the existence of that right. PL 42 U.S.C. § 10607(c)(2) (2006) (emphasis added). 222 See Attorney General Guidelines, supra note 52, at 7-8, 26-28. DAVID SCHOEN HOUSE_OVERSIGHT_017618