Court Interpretations of CVRA Victim Rights and OLC Memorandum Overreach

Page 14 of 31 104 J. Crim. L. & Criminology 59, *78 poor fit. Although OLC’s memorandum characterizes Turner as excluding victims of uncharged conduct, 1° the magistrate judge adopted an inclusive reading of the statute precisely because of his reservations about the CVRA's legislative history and plain language. The judge suggested that "any person who self-identifies as [a victim]" could be presumed to qualify for protection under the CVRA as a preliminary matter. !°° In fact, the line quoted by the Department is lifted out of context. The full sentence reads: "While the offense charged against a defendant can [*79] serve as a basis for identifying a "crime victim' as defined in the CVRA, the class of victims with statutory rights may well be broader." !°7 Paletz and Skinner similarly provide scant support for the Department's position. In Skinner, a prison inmate attempted to bring a pro se civil suit against another inmate for allegedly attacking him during incarceration. !°° In dismissing the suit in an unpublished decision, the district court recognized that the Government had expressly declined to bring charges against the other inmate and concluded that the CVRA did not create a "mechanism to bring an action against Defendant directly." 1°? In Paletz, that same inmate brought a similar pro se claim against another inmate, the Federal Bureau of Prisons, the FBI, and the U.S. Attorney General. !!° In a parallel, unpublished decision, the district court dismissed the suit, noting that the CVRA is designed to give victims certain rights "within the prosecutorial process against a criminal defendant." 11! Because Skinner and Paletz involve (apparently frivolous) civil suits, they say nothing about the CVRA's reach in criminal cases, and any language to that effect would be pure dicta. Moreover, the courts' terse analysis in both cases does not contain any substantive discussion of whether CVRA rights apply in criminal cases before the filing of charges. Instead, the courts simply cited to language from a Second Circuit decision that stated that the CVRA does not give victims any rights against defendants until those defendants have been convicted !!* - a holding clearly limited to restitution, as many other CVRA rights clearly apply before conviction. !!3 Reviewing these two cases in an extended, published opinion, the U.S. District Court for the Southern District of Texas noted that reading these two decisions as standing for the proposition that charges must be filed for CVRA rights to attach "appears inconsistent with the CVRA recognition of certain subsection (a) rights that apply during investigation, before any charging instrument is filed." '!4 As a result, OLC [*80] vastly overstates its position when it asserts 3 No. 6:07-1389-GRA-WMC, 2007 WL 1875802 (D.S.C. June 27, 2007). 4 No. 6:06-1418-GRA-WMC, 2006 WL 1677177 (D.S.C. June 16, 2006). °5 OLC CVRA Rights Memo, supra note 2, at 6 n.6. 6 Turner, 367 F. Supp. 2d at 327 (Instead, I have taken and will continue to follow an inclusive approach: absent an affirmative reason to think otherwise, I will presume that any person whom the government asserts was harmed by conduct attributed to a defendant, as well as any person who self-identifies as such, enjoys all of the procedural and substantive rights set forth in § 3771."). 7 Id. at 326. 68 Skinner, 2006 WL 1677177, at 1-2. 09 Td. at 2. ® Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL 1875802, at 1-2 (D.S.C. June 27, 2007). ' Td. at 2. at 2 Id. ("However, "the CVRA does not grant victims any rights against individuals who have not been convicted of a crime. W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005))). (quoting Jn re 3 Of course, a defendant cannot be ordered to pay restitution as part of his sentence until he has been found guilty. See /8 U.S.C. § 3664 (2012) (describing sentencing procedures for ordering restitution). 4 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at 12 n.7 (S.D. Tex. Feb. 21, 2008). DAVID SCHOEN HOUSE_OVERSIGHT_017617