Legal analysis cites Jeffery Epstein victim rights under CVRA and a 2011 Jon Kyl letter to Attorney General Holder

62 CASSELL ET AL. [Vol. 104 CVRA, it intended to protect crime victims throughout the criminal justice process—from the investigative phases to the final conclusion of a case.”* Senator Kyl contested the Department’s analysis of the statute and, in particular, its use of statements from him during Congress’s consideration of the CVRA. This Article sides with the CVRA’s cosponsor and concludes that crime victims’ CVRA rights attach before formal charging. Both the CVRA’s plain language and its legislative history lead inexorably to this conclusion, as every court that has considered this issue has concluded. This Article also contends that, as a matter of sound public policy, crime victims should have rights before the formal filing of criminal charges. This Article proceeds in four parts. Part I frames the issues under discussion by defending the importance of extending rights to crime victims during criminal investigations. Part I also provides background on victims’ rights and gives a concrete illustration of a case in which the question of pre-charging nights for crime victims has arisen—specifically, the Jeffrey Epstein sex abuse case before a federal court in Florida. In that case, girls victimized by Epstein have argued that they should have been consulted about a federal nonprosecution agreement; Department attorneys have responded that because prosecutors never filed charges, government officials had no formal obligations to inform the girls. Part II reviews the CVRA’s purpose, text, structure, and legislative history. This review establishes that the CVRA extends nghts to crime victims before formal charges are filed. Part III critiques OLC’s position that the CVRA extends rights to victims only after prosecutors have lodged charges in court. The Department’s proffered arguments do not withstand close scrutiny, particularly in light of the fact that the CVRA covers federal agencies involved in the “detection” and “investigation” of crime,* and specifically authorizes crime victims to file CVRA motions in situations where “no prosecution is underway.”° Part IV then proposes a specific approach for determining when crime victims’ CVRA rights attach. This Part explains that the rights should attach when federal law enforcement or prosecuting agencies have identified a federal crime and a particular victim with sufficient precision that they would send a “target” letter to a criminal defendant in similar circumstances. If prosecutors have sufficient information to provide notice 3 Letter from Jon Kyl, U.S. Sen., to Eric H. Holder, Jr., Att’y Gen. (June 6, 2011), reprinted in 157 Conc. REc. $3608 (daily ed. June 8, 2011) (statement of Sen. Jon Kyl). 4 18 USC. § 3771(c\(1). 5 Id. § 3771(d)(3). HOUSE_OVERSIGHT_014041