Analysis of Victim Rights Provisions in the Crime Victims' Rights Act (CVRA) and Calls for Federal Rule Amendments

Page 10 of 52 2005 B.Y.U.L. Rev. 835, *851 (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) The reasonable right to confer with the attorney for the Government in the case; (6) The right to full and timely restitution as provided in law; (7) The right to proceedings free from unreasonable delay; (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 8? Rather than relying merely on the "best efforts" of prosecutors to vindicate rights, the CVRA also contains specific enforcement [*852] mechanisms. ?° Most importantly, it directly gives victims standing to assert their rights, addressing a flaw in the earlier enactment. ?! The Act provides that rights can be "asserted" by "the crime victim, the crime victim's lawful representative, and the attorney for the Government." °* The victim or the government may appeal any denial of a victim's right through a writ of mandamus on an expedited basis. °? The courts are also required to "ensure that the crime victim is afforded the rights" in the new law. °4 These changes were intended to make the victim "an independent participant in the proceedings." °° Congress desired to modify what it viewed as the unfair treatment of crime victims; in particular, congressional sponsors of the CVRA cited the Oklahoma City bombing case as the kind of decision that they intended the new law to overrule. II. The Need To Place Victims' Rights in the Rules With the CVRA in place as the law of the land, the Federal Rules of Criminal Procedure should be amended to conform to the statute. While one court has derisively referred to the Act as mere "mushy, feel good legislation," °7 it in fact substantively changes the posture of crime victims on a whole host of issues. In the wake of the Act, victims now must be folded into the process through which federal courts conduct criminal cases, including bail, plea, trial, and sentencing hearings. The Federal Rules of Criminal Procedure - the "playbook" of the federal courts - should reflect this fact. Some might agree that victims now have a number of new rights, but nonetheless dispute the need for a rules amendment. After all, 1t might be argued, the CVRA in fact creates substantive rights for crime victims. Because nothing in the federal procedural [*853] rules can modify substantive rights, °° the CVRA will trump any conflicting provision in the federal rules. °° Tn other words, the CVRA will automatically govern federal criminal proceedings even if the rules remain as written. 8 18 US.C.A. 3771 (a) (West 2004 & Supp. 2005). °° Td. 3771(d). °! Cf. Beloof, The Third Wave of Crime Victims' Rights, supra note 16 (identifying the lack of victim standing as a pervasive flaw in victims’ rights enactments). % 18 U.S.CA. 3771(d)(1). 3 Td. 3771(d)(3). % Td. 3771(b). °° 150 Cong. Rec. $10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). % Td. at S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). °7 United States v. Holland, 380 F. Supp. 2d 1264, 1279 (ND. Ala. 2005). 98 See 28 U.S.C. 2072(b) (2000). % See, e.g., Miguel v. Country Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002). DAVID SCHOEN HOUSE_OVERSIGHT_017724