Potential CVRA Victim‑Rights Violation in Pre‑Charging Epstein Plea Deal

70 CASSELL ET AL. [Vol. 104 A. THE CVRA’S PURPOSES An analysis of the CVRA’s application before prosecutors have filed charges must begin by assessing the CVRA’s purposes because any interpretation of the CVRA that is divorced from the statute’s purposes would run the risk of defeating the statute’s aims. It is axiomatic that courts should “give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question.” As discussed above,’ one important goal of the CVRA was to keep crime victims informed about any developments in the criminal justice process. But the need to be informed does not begin with the filing of a formal criminal charge. A crime victim needs to know what is happening before formal charging—during a criminal investigation, for example—just as much as she needs to know what is happening in court. Indeed, she may have a greater need to know, as she may be concerned that the criminal who harmed her is still on the loose, posing a danger to her. Similarly, concerning the second purpose—facilitating victim participation’!—without a right to pre-charging involvement, victims may be effectively shut out of the process entirely. The Epstein case provides a useful illustration of why the CVRA must be understood to extend rights to victims prior to indictment. The prosecutors handling the investigation reached an agreement with Epstein that barred federal prosecution of sex offenses committed against dozens of victims, including Jane Doe Number One and Jane Doe Number Two. If CVRA rights did not extend to the negotiations surrounding the agreement, then the victims never would have had any ability to participate in the resolution of the case.>” A construction of the CVRA that extends rights to victims before charges are filed would be entirely consistent with the CVRA’s participatory purpose. If victims have the ability to participate in a pre- charging plea bargaining process, for example, victims can help ensure that prosecutors do not overlook anything that should be covered in the plea deal. For example, victims might be able to obtain agreement to a “no contact” order or valuable restitution—points that the prosecutor might fail 49 Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1409 (2010) (quoting United States v. Bornstein, 423 U.S. 303, 310 (1976)) (internal quotation marks omitted). %° See supra notes 24-27. >! See supra notes 28-29. >? Even the Justice Department seems to recognize this point. As a matter of policy, the Department extends to victims the right to confer with prosecutors in situations where plea discussions occur before charges have been brought. U.S. DEP’T oF JUSTICE, OFFICE FOR VICTIMS OF CRIME, ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE 41-42 (2011 ed., rev. May 2012) [hereinafter ATTORNEY GENERAL GUIDELINES]. HOUSE_OVERSIGHT_014049