Proposed Rule 10.1 Mirrors Attorney General Guidelines on Victim Notification Funding

Page 17 of 52 2005 B.Y.U.L. Rev. 835, *863 To avoid creating only significant new responsibilities for prosecutors and their agents, the proposed new Rule 10.1 is lifted essentially verbatim from the 2000 Attorney General Guidelines for Victim and Witness Assistance. The 2005 revisions to the Guidelines continue essentially the same requirements. 148 The drafters of the CVRA also appear to believe that the notification obligations will fall primarily on prosecutors’ offices, as the CVRA authorizes an appropriation of $ 22,000,000 over the next five fiscal years to the Office for Victims of Crime of the 139 [*864] Presumably, those enhanced new Department of Justice for enhancement of victim notification systems. notification systems can be used to keep victims apprised of court proceedings. Moreover, the CVRA directs that the Department of Justice and its investigative agencies "shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)."_ 14° Proposed new Rule 10.1 adds only two new obligations beyond those found in the 2000 Attorney General Guidelines: (1) notice to victims of their right to make a statement regarding any proposed plea, and (2) notice to victims of their right to attend public proceedings. Both of these obligations are currently found in the 2005 Guidelines. !4! One last issue deserves brief discussion: Is it proper for the Judiciary, through the rule-making process, to command another branch of government to take certain actions? !4? The starting point for analyzing this question is the congressional command in the CVRA that the executive branch must protect victims' rights. ‘4? Consequently, implementing these rights through rule changes presents no question of the courts inventing new rights or exercising some kind of "supervisory" power over federal agents. '44 Instead, the implementation is simply enforcing congressionally created rights through the Judiciary's congressionally authorized rulemaking authority - an uncontroversial exercise of judicial power. !4° Moreover, in the CVRA, Congress commanded the courts to "ensure that the crime victim is afforded the rights described [in the CVRA]." '4° Rule changes needed to implement the CVRA thus rest [*865] on this statutory authority as well. Additionally, this Article's proposals affecting prosecutors are closely connected to court proceedings; they deal with such things as prosecutors notifying victims of hearings and conferring with victims in anticipation thereof. It is difficult to see new separation of powers concerns arising in such contexts so closely connected to the courtroom. 137 See 2000 A.G. Guidelines, supra note 38; see also U.S. Dept. of Justice, Office for Victims of Crime, New Directions from the Field: Victims' Rights and Services for the 21st Century 82 (1998) ("Prosecutors' offices should notify victims in a timely manner" of all significant hearings.). B8 See 2005 A.G. Guidelines, supra note 38, at 27-29 (providing for notice to victims, although relying on the department's Victim Notification Systems (VNS) to do this). B9 See 118 Stat. 2260, 2264 (2004); sce also 150 Cong. Rec. $4267 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) ("We authorized an appropriation of funds to assure ... that moneys would be made available to enhance the victim notification system, managed by the Department of Justice's Office for Victims of Crime, and the resources additionally to develop state-of-the-art systems for notifying crime victims of important statements of development) (emphasis added). But cf. id. (discussing court notification of attorneys of record and concluding "it is a relatively simple matter to add another name and telephone number or address to that list"). 40 78 US.CA. 3771(c)(1) (West 2004 & Supp. 2005) (emphasis added). 141 See 2005 A.G. Guidelines, supra note 38, at 27 (prosecutors to notify victims of all their rights under the CVRA). 42 Victims cannot rely on the provisions of the Attorney General Guidelines to protect their rights because the Guidelines themselves state that they "are not intended to ... and may not be relied upon to create any rights ... enforceable at law by any person in a matter civil or criminal." 2005 A.G. Guidelines, supra note 38, at 27. 43 18 USCA. 3771(c)(1). 44 Cf. Sarah Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum. L. Rev. 1433 (1984) (discussing more problematic applications of judicial power). 45 See id. at 1476-77; 28 U.S.C. 2071, 2072 (establishing court rule-making power). 46 18 U.S.C. 3771(b) (emphasis added). DAVID SCHOEN HOUSE_OVERSIGHT_017731