The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“CRIME VICTIMS' RIGHTS ACT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S7359-S7360 on Nov. 10, 2011.
The publication is reproduced in full below:
CRIME VICTIMS' RIGHTS ACT
Mr. KYL. Mr. President, I ask unanimous consent to have printed in the Record a letter from Attorney General Holder.
There being no objection, the material was ordered to be printed in the Record, as follows:
U.S. Department of Justice,
Washington, DC, November 3, 2011.Hon. Jon Kyl,U.S. Senate, Washington, DC.
Dear Senator Kyl: This responds to your letters to Attorney General Holder dated June 6, 2011, and November 2, 2011, regarding the Department of Justice's implementation and enforcement of the Crime Victims' Rights Act (CVRA), enacted as section 102 of the Justice for All Act of 2004. Pub. L. No. 108-405, 118 Stat. 2260, 2261-64
(codified at 18 U.S.C. Sec. 3771 (2006 & Supp. III 2009)). We apologize for our delay in responding to your June 6 letter. Your November 2 letter raises additional questions, to which we will reply as soon as possible.
The Department appreciates your leadership in the area of protecting crime victims' rights, and we share your commitment to ensuring that crime victims receive the rights and services to which they are entitled under federal law. In the six years since passage of the CVRA, Department personnel have made their best efforts in thousands of federal and District of Columbia cases to assert, support, and defend crime victims' rights, often over the objections of defendants, and occasionally in the face of a skeptical judiciary.
Every day, federal prosecutors and victim-witness professionals consult with victims, inform them of their rights, including the right to be represented by an attorney, accompany them to court, and assist them with preparing victim impact statements and seeking and recovering restitution. The number of identified victims registered in our automated system in order to receive notices and other services has grown significantly, totaling 2.2 million in Fiscal Year 2010. In that year, the Department sent out 8 million notifications of public court proceedings to victims to ensure that persons harmed by the charged conduct were informed about those proceedings. In contrast, the year before the CVRA passed, 2.7 million such notices were sent.
In addition, U.S. Attorneys' Offices are increasingly using asset forfeiture laws to help victims by applying forfeited assets to satisfy restitution orders. These efforts have resulted in measurable improvements for victims; the amount of forfeited proceeds returned to victims has jumped from
$13.7 million in FY 2004 to $250 million in the first 8 months of FY 2011.
In 2009, the Government Accountability Office (GAO) conducted an extensive evaluation of the Department's CVRA implementation efforts. GAO considered the views of victims, victim-witness professionals, federal investigators, prosecutors, defense attorneys, and judges during the audit. The GAO concluded that the Department and the federal judiciary ``have made various efforts to implement the CVRA,'' and ``have taken actions to address four factors that have affected CVRA implementation, including the characteristics of certain cases, the increased workload of some USAO staff, the scheduling of court proceedings, and diverging interests between the prosecution and victims.'' See Crime Victims' Rights Act: Increasing Victim Awareness and Clarifying Applicability to the District of Columbia Will Improve Implementation of the Act: Hearing Before the H. Comm. on the Judiciary, 110th Cong. at 8 (2009) (statement of Eileen R. Larence, Director, Homeland Security and Justice, Government Accountability Office). The GAO ultimately offered only minor recommendations for improvements, all of which have been significantly addressed.
Your June 6 letter posed three questions regarding victims' rights. First, you asked about the fair treatment of crime victims prior to charging, specifically during pre-charge plea and non-prosecution negotiations. In 2010, the Attorney General directed the Deputy Attorney General to convene a working group to help evaluate, coordinate, and improve the services the Department provides to crime victims and witnesses. The working group undertook a revision of the Department's basic operational policy manual, the Attorney General Guidelines for Victim and Witness Assistance (AG Guidelines). As you noted in your November 2 letter, the revised 2011 AG Guidelines (available at www.justice.gov/olp/
pdf/ag_guidelines2011
.pdf) took effect on October 1, 2011. As part of the revision process, the working group sought input from all Departmental components that interact with victims of crime and, with respect to certain difficult legal issues, sought guidance from the Office of Legal Counsel (OLC). Regarding when the rights accorded by the CVRA apply, OLC determined the statute is best read as providing that rights apply beginning when criminal proceedings are initiated. Even so, the new AG Guidelines go further and provide that Department prosecutors should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations, even prior to the filing of a charging instrument with the court. Art. V.0.2, AG Guidelines (2011 ed.).
Additionally, the revised AG Guidelines strengthen and clarify the Department's policies by encouraging Department personnel to go beyond minimum statutory requirements to assist crime victims at all points in the criminal justice process. Even for those who do not qualify under statutory victim definitions, the revised AG Guidelines authorize the provision of services and information, and support participation by victims in court proceedings. See Art. 11.A and Art. III.E, AG Guidelines (2011 ed.).
Moreover, in addition to carrying out our responsibilities under the CVRA, the Department is taking other steps to fulfill its mandate to provide services to crime victims from the opening of a criminal investigation. Pursuant to the Victims' Rights and Restitution Act of 1990 (VRRA), the Department identifies victims and provides to them service referrals, reasonable protection, notice concerning the status of the investigation, and information about the criminal justice process prior to the filing of any charges. The Department's investigative agencies provide such services to thousands of victims every year, whether or not the investigation results in a federal prosecution. The Federal Bureau of Investigation (FBI) alone reports it provided more than 190,000 services to victims during the past fiscal year, including case status updates, assistance with compensation applications and referrals, and counseling referrals. From sexual assaults in Indian Country to child pornography and human trafficking to mass violence and overseas terrorism, FBI victim specialists provide much-needed immediate and ongoing support and information to victims. The FBI addresses victim safety issues when needed, providing on-scene response and crisis intervention services in thousands of investigations. With regard to sexual assault victims, FBI personnel arrange for and often accompany victims to forensic sexual assault medical examinations and provide assistance with HIV/STD testing. In sum, the Department's assistance to victims during the investigatory stage exemplifies a commitment to crime victims above and beyond the statutory mandates.
Second, you asked about the Department's litigation position regarding the standard of review for mandamus cases filed pursuant to the CVRA. The CVRA constitutes a significant, large-scale change in the operation of the federal criminal justice system. For that reason, and because the rights of crime victims must be balanced against recognized rights of criminal defendants, it was inevitable that CVRA implementation would be accompanied by litigation concerning its provisions. The Department has been actively engaged in that litigation, frequently on the side of the victims, seeking to enforce their rights in court. The litigating decisions we make in those cases are reached only after careful consideration of both the language and the purpose of the CVRA, and of our responsibility to foster a fair criminal justice system that respects the rights of all involved, including victims and defendants. Even when we conclude that victim status is inappropriate, or that a certain claimed right should not be accorded to the person seeking it, we often try to find other ways to accommodate that person's legitimate interests in the outcome of the criminal case at hand.
Concerning the mandamus standard of review, the Department's legal analysis is set forth in the brief that you cite in your letter, In re Antrobus, No. 08-4002 (10th Cir. Feb. 12, 2008). As you note, the CVRA requires that the Department use its ``best efforts'' to afford crime victims their CVRA rights. 18 U.S.C. Sec. 3771(c)(1) (``Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in [18 U.S.C. Sec. 3771(a)].''). The Department makes its best efforts on a daily basis to ensure victims are notified of and accorded such rights. Indeed, the new AG Guidelines specifically instruct Department personnel to consider a victim's right to fairness when developing and presenting the government's arguments. Art. V.J.3, AG Guidelines (2011 ed.).
Finally, you asked whether the Department has asserted victims' rights on an appeal, even when the appeal is taken by the defendant appealing his or her conviction. See 18 U.S.C. Sec. 3771(d)(4) (``In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates.'') We do not maintain statistics on the use of this provision and, therefore, cannot answer this question definitively. We note, however, that the potential utility of this provision is limited, with the exception of a narrow category of cases; an appellate court typically would not be able to grant any relief to correct a CVRA error asserted in response to a defendant's appeal, other than issuing an advisory opinion. We will continue to keep this provision in mind as we evaluate cases in the future and, as we have done in the past, we will continue to defend convictions on appeal in the face of defense challenges to victims' assertions of rights.
Thank you for your interest in the Department's efforts to accord the victims of federal crimes their rights under federal law. We welcome the opportunity to work with you and your staff to ensure that crime victims receive the rights and services they deserve. We hope this information is helpful. Please do not hesitate to contact this office if we may provide additional assistance regarding this, or any other matter.
Sincerely,
Ronald Weich,Assistant Attorney General.
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