Crime Victims' Rights Act

The Crime Victims' Rights Act (CVRA), formally the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, is a United States federal statute codified at 18 U.S.C. 3771. It was enacted as Title I of the Justice for All Act of 2004 and signed by President George W. Bush on October 30, 2004. The Act lists rights held by victims of federal crimes, directs Department of Justice employees to make their "best efforts" to see that victims are notified of and accorded those rights, and allows victims to assert them in federal court. Litigation under the Act by victims of Jeffrey Epstein produced a 2019 finding that federal prosecutors in Florida had violated it and a 2021 appellate ruling that the victims had no means of enforcing it.¹²³

Enactment

The statute was a substitute for a proposed Victims' Rights Amendment to the Constitution, which Senators Jon Kyl of Arizona and Dianne Feinstein of California had sponsored in several Congresses without passage. Kyl and Feinstein introduced the statutory version as S. 2329 on April 21, 2004, and the Senate passed it the following day. The House folded it into H.R. 5107, the Justice for All Act, together with the Debbie Smith Act on DNA backlogs and the Innocence Protection Act; the House passed the combined bill on October 6, 2004 and the Senate on October 9, 2004. It became Public Law 108-405.²³

The Act replaced an earlier victims' rights provision, 42 U.S.C. 10606, that had no enforcement mechanism. Section 3771(d) allows a victim or the government to assert the rights by motion in the district court in which a defendant is being prosecuted or, if no prosecution is underway, in the district court in which the crime occurred, and allows a victim denied relief to petition the court of appeals for a writ of mandamus. Section 3771(d)(6) provides that nothing in the Act authorizes a cause of action for damages or shall "be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction."¹

The Enumerated Rights

As amended, section 3771(a) lists ten rights: to be reasonably protected from the accused; to reasonable, accurate, and timely notice of any public court or parole proceeding involving the crime; not to be excluded from such proceedings; to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or parole; "[t]he reasonable right to confer with the attorney for the Government in the case"; to full and timely restitution; to proceedings free from unreasonable delay; "[t]he right to be treated with fairness and with respect for the victim's dignity and privacy"; to be informed in a timely manner of any plea bargain or deferred prosecution agreement; and to be informed of these rights and of available services. The last two were added in 2015.¹⁴

The Justice Department's position at the time of the Epstein case was that the rights did not attach until federal charges were filed. The Office of Professional Responsibility later found that "at the time the NPA was signed, the Department did not interpret CVRA rights to attach unless and until federal charges had been filed," and that the federal courts had not established a contrary standard.⁵

The Epstein Litigation

Beginning in March 2007 the U.S. Attorney's Office for the Southern District of Florida sent Epstein's identified victims letters listing their CVRA rights, including the right to confer with the government's attorney. On September 24, 2007 the office signed the Epstein non-prosecution agreement without consulting any of them, and in January and May 2008 the Federal Bureau of Investigation sent victims letters describing the case as "currently under investigation" and asking for their "continued patience." In the same period the office told Epstein's counsel that the Justice for All Act imposed "a statutory obligation" to notify victims, then delayed notice at the defense's request.⁴

On July 7, 2008 a victim filed an emergency petition under section 3771, opening Doe v. United States, No. 9:08-cv-80736, before Judge Kenneth Marra; her counsel were Bradley Edwards and, later, Paul Cassell. In a 2011 ruling in the case Marra held that the rights attach before formal charges, and in 2013 that the Act authorizes rescission of a prosecutorial agreement reached in violation of the conferral right. In 2011 Kyl wrote to the Attorney General that "Congress intended the CVRA to broadly protect crime victims throughout the criminal justice process," reaching "from the investigative phases to the final conclusion of a case."⁴

On February 21, 2019 Marra held that the government had violated the petitioners' conferral right. He rejected the government's argument that the 2015 amendment, by naming plea bargains and deferred prosecution agreements, had excluded non-prosecution agreements from notice, reasoning that "[a] NPA entered into without notice has a more damaging impact on the victims than a plea agreement entered into without notice," because "[o]nce a NPA is entered into without notice, the matter is closed and the victims have no opportunity to be heard regarding any aspect of the case." After Epstein's death Marra denied every requested remedy on September 16, 2019, noting that section 3771(d)(6) barred damages against the government and that his sanctions power did not reach conduct predating the litigation.⁴⁶

In re Wild

Courtney Wild, who had filed as Jane Doe 1, petitioned the Eleventh Circuit for mandamus in her own name. In its brief the government argued that "as a matter of law, the legal obligations under the CVRA do not attach prior to the government charging a case," while conceding at oral argument that the office had "made a mistake in causing her to believe that the case was ongoing when in fact the NPA had been signed." A divided panel denied the petition on April 14, 2020, holding that the rights do not attach before charges; the full court vacated that opinion on August 7, 2020.⁵

On April 15, 2021 the en banc court denied the petition by a vote of seven to four. Judge Kevin Newsom's majority opinion held that the Act permits a victim to move for relief within a preexisting proceeding but "does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action," and stated: "We conclude that we needn't decide whether, in the abstract, the rights to confer and to be treated with fairness might attach prior to the formal commencement of criminal proceedings." Judge Elizabeth Branch, joined by three colleagues, would have held that the rights to confer and to fair treatment attached pre-charge and were judicially enforceable. Judge Frank Hull wrote separately: "Good gracious, there's nothing abstract about this case," and that "[o]nce the ink was dry on the Agreement, the U.S. Attorney had exercised his discretion and made his charging decision." The Supreme Court of the United States denied certiorari on February 22, 2022, with the Solicitor General opposing review.⁷⁸

Proposed Amendments

Representatives Jackie Speier, Scott Perry, Lois Frankel, and Mo Brooks introduced the Courtney Wild Crime Victims' Rights Reform Act of 2019 (H.R. 4729) to extend the conferral and notice rights expressly to the pre-charge period and to provide a remedy for violations. It was referred to the House Judiciary Committee and not enacted. Speier reintroduced it in 2022 as H.R. 9444, and Debbie Wasserman Schultz later introduced a version titled the Courtney Wild Reinforcing Crime Victims' Rights Act.⁹