OLC Memo Mischaracterizes Victims' Rights Under the CVRA

80 CASSELL ET AL. [Vol. 104 vastly overstates its position when it asserts that “most courts ... have declined to extend enforceable nghts under the CVRA to alleged victims of conduct that did not lead to criminal proceedings.”'' All the courts that have actually reached the issue have concluded exactly the opposite.''® B. OLC’S DISTORTION OF THE CVRA’S STRUCTURE AND LEGISLATIVE HISTORY The next section of OLC’s memorandum maintains that the CVRA’s structure and legislative history lead to the conclusion that the CVRA is “best understood” as extending rights after charges have been filed. Here again, OLC’s analysis is truncated at best and misleading at worst. OLC begins this part of its analysis by observing that some of the rights in the CVRA are limited to court proceedings. OLC notes, for example, that the CVRA gives victims the “right to reasonable, accurate, and timely notice of any public court proceeding ... involving the crime.”''’ But the fact that some of the rights listed in the CVRA apply to court proceedings hardly means that all of the rights are to be so restricted. The federal criminal justice process includes stages that are pre-charging, post-charging, and post-conviction. It would hardly be surprising to find that a statute that Congress intended to be “broad and encompassing”™!!® covered events occurring after the filing of charges. Indeed, OLC appears to recognize that at least three of the rights listed in the CVRA could easily apply before charges are filed: (1) the “right to be reasonably protected from the accused”; (2) the “reasonable right to confer with the attorney for the Government in the case”; and (3) the “right to be treated with faimess and with respect for the victim’s dignity and privacy.”!!° None of these rights explicitly refer to court “proceedings” or other events (such as parole hearings) that necessarily occur after the filing of formal charges.'”° 15 OLC CVRA Rights Memo, supra note 2, at 5-6. Notably, the Department does not embrace the language from Huff found within the Skinner and Paletz decisions because presumably such an approach would be contrary to many of the rights found in the CVRA. 16 See infra Part I.C. 'T OLC CVRA Rights Memo, supra note 2, at 6 (emphasis added) (quoting 18 U.S.C. § 3771(a)(2)). 18 150 Conc. REc. 7295 (2004) (statement of Sen. Dianne Feinstein). 19 OLC CVRA Rights Memo, supra note 2, at 7-8, 10 (quoting 18 U.S.C. § 3771(a)(1), (5), (8)). °° OLC appears to have overlooked another right that could well apply before charges are filed: the right to be notified of one’s rights under the CVRA. See 18 U.S.C. § 3771(c)(1) (requiring prosecutors to “make their best efforts to see that crime victims are notified of, and accorded, the rights described in [the CVRA]”); United States v. Rubin, 558 F. Supp. 2d 411, 428 (E.D.N.Y. 2008) (discussing potential application of the right to HOUSE_OVERSIGHT_014059