Legal analysis of the Crime Victims' Rights Act (CVRA) and its application to pre‑charge victim participation, citing the Jeffrey Epstein case

Page 3 of 31 104 J. Crim. L. & Criminology 59, *62 Part II reviews the CVRA's purpose, text, structure, and legislative history. This review establishes that the CVRA extends rights to crime victims before formal charges are filed. Part ITI critiques OLC's position that the CVRA extends rights to victims only after prosecutors have lodged charges in court. The Department's proffered arguments do not withstand close scrutiny, particularly in light of the fact that the CVRA covers federal agencies involved in the "detection" and "investigation" of crime, + and specifically authorizes crime victims to file CVRA motions in situations where "no prosecution is underway." > Part IV then proposes a specific approach for determining when crime victims’ CVRA rights attach. This Part explains that the rights should attach when federal law enforcement or prosecuting agencies have identified a federal crime and a particular victim with sufficient precision that they would send a "target" letter to a criminal defendant in similar circumstances. If prosecutors have sufficient information to provide notice [*63] to a potential criminal of his rights, they can do the same for his victims. This Part also notes that the Department of Justice and state prosecutors already successfully provide rights to victims before charging. This successful experience strongly suggests that providing rights to victims early in the criminal justice process will not be unduly burdensome. I. The Issue of Rights for Crime Victims During Criminal Investigations To consider the question of whether victims should have rights during criminal investigations, some understanding of the underlying purposes of victims’ rights enactments will be useful. These enactments are typically designed to make victims participants in all phases of the criminal justice process. © Congress drafted the CVRA, for example, broadly to make crime victims participants in criminal cases. The Jeffrey Epstein sex abuse case demonstrates the importance of victim participation even before charges are filed. A. ABRIEF HISTORY OF CRIME VICTIMS' RIGHTS The crime victims’ rights movement has sought to make crime victims important participants in the criminal justice process. The movement began in the wake of the Warren Court revolution, which extended new rights to criminal defendants. 7 With the courts paying increasing attention to criminal defendants, crime victims' advocates began to argue that the victims themselves had been overlooked. * The movement gained great visibility in the early 1980s when President Ronald Reagan appointed the President's Task Force on Victims of Crime. ? The Task Force published a report concluding that "the criminal justice system has lost an essential balance... . The victims of crime have been transformed into a group oppressively burdened. by a system designed to protect them. This oppression must be redressed.”" 1° The Task Force chronicled how crime victims were treated in all stages of the criminal justice process, from the police investigation through [*64] court proceedings, and ultimately to any parole or other release of the criminal. The Task Force 4 18 U.S.C. § 3771(¢)(1). > Id. § 3771(d)(3). © See Douglas E. Beloof, Paul G. Cassell & Steven J. Twist, Victims in Criminal Procedure 3-39 (3d ed. 2010) (describing reforms from a historical perspective); see also, e.g., /8 U.S.C. § 377/(a) (2012). 7 See Beloof, Cassell & Twist, supra note 6, at 3-39 (describing the history of victims’ rights in American law and the early days of the modern movement). 8 See, e.g., William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim L. Rev. 649, 651-55 (1976). ° Exec. Order 12,360, 47 Fed. Reg. 17,975 (Apr. 27, 1982); see also President's Task Force on Victims of Crime, Final Report, at ii (1982). 10 President's Task Force on Victims of Crime, Final Report, supra note 9, at 114. DAVID SCHOEN HOUSE_OVERSIGHT_017606