Justice Department OLC Memo Limits Victims' Rights Until Formal Charges Filed

Page 12 of 31 104 J. Crim. L. & Criminology 59, *75 II. The Justice Department's Unpersuasive Position Despite the CVRA's broad remedial purposes, its expansive language referring to investigations, and the unanimous case law extending rights to victims prior to defendants being charged, the OLC released a memorandum in 2011 concluding that CVRA rights attach only "from the time that criminal proceedings are initiated (by complaint, information, or indictment)." 8? OLC's analysis is unpersuasive. Although OLC's opinion [*76] invokes the CVRA's definition of crime "victim," its legislative intent, and its structure, a closer reading of each demonstrates little support for the notion that crime victims must await the formal filing of charges before accruing CVRA rights. A. OLC'S MISREADING OF THE CVRA'S DEFINITION OF "VICTIM" OLC's lead argument is that the CVRA's definition of "victim" presupposes that criminal charges have been formally filed. The CVRA defines a "victim" who is protected as "a person directly and proximately harmed as a result of the commission of a Federal offense." °4 Focusing on the word "offense," OLC concedes that it does not "conclusively resolve" the question of when rights attach. Nevertheless, OLC claims that the word "naturally suggests that a person's status as a "crime victim’ can only be determined after there has been a formal decision to charge a defendant with a particular Federal offense." °° OLC goes on to elaborate: Under this reading, the earliest that a "crime victim" under the Act could be identified would be upon the filing of a criminal complaint - that is, at the earliest point at which there is a sworn written statement of probable cause to believe that a particular defendant committed an identified Federal offense and hence the first point at which it is possible with any certainty to identify a "crime victim" directly and proximately harmed by the commission of that offense. °° OLC is disingenuous in asserting that the "first point" at which a person has been harmed by a federal crime arises only after a criminal complaint has been filed. The Department routinely makes such determinations at earlier points in criminal cases, such as when it sends a "target letter" to a defense attorney during a grand jury investigation. 87 Indeed, OLC remarkably ignores the fact that the Department is directly required to identify victims of a crime before the filing of a criminal complaint, both by statute and through internal policy directives. The Victims’ Rights and Restitution Act of 1990 (VRRA) °° requires the Department to identify victims before the filing of a criminal complaint. [*77] Passed in 1990, the VRRA provided crime victims with a set of procedural rights similar to those found in the CVRA, along with rights to notification about victim services. °° In 2004, the CVRA repealed and replaced the section of the VRRA listing procedural rights, while leaving other parts of the VRRA intact. °° Under the remaining parts of 8 OLC CVRA Rights Memo, supra note 2, at 1. Although the opinion is dated December 17, 2010, it was publicly released on May 20, 2011. See Letter from Jon Kyl, supra note 3. 83 OLC CVRA Rights Memo, supra note 2, at 6. 84 718 U.S.C. § 3771(e) (2012) (emphasis added). 85 OLC CVRA Rights Memo, supra note 2, at 5. 86 Td. 87 A target letter explains the procedural process underlying an indictment and places the defendant on notice of the general nature of the government's criminal investigation. See U.S. Dep't of Justice, Title 9: U.S. Attorneys' Criminal Resource Manual § 160, [hereinafter Criminal Resource Manual] available at hitp://goo.gl/YHLDke (providing an example target letter); infra Part IIIA (developing this point further). 88 Pub. L. No. 101-647, 104 Stat. 4820 (codified as amended at 42 U.S.C. §$/0601, 10606-07 (2006)). 89 See supra notes 22-23 and accompanying text. % Justice for All Act of 2004, Pub. L. No. 108-405, § 102(a), 118 Stat. 2260, 2261 (2004) (codified at 18 U.S.C. § 3771(a) (2012). DAVID SCHOEN HOUSE_OVERSIGHT_017615