Potential Secret Plea Deal in Epstein Case May Have Violated Victims' Rights Under the CVRA

Page 8 of 31 104 J. Crim. L. & Criminology 59, *69 [*70] 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." 4° 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 [*71] to consider in crafting a plea. Similarly, allowing victims to participate early in the process avoids retraumatizing victims. Again, as the Epstein case usefully illustrates, it may be extremely difficult for victims to discover after the fact that potential criminal charges against a criminal who has abused them have been secretly bargained away. Jane Doe Number One and Jane Doe Number Two, for example, were outraged when they discovered prosecutors had entered into an agreement blocking any prosecution of sex offenses Epstein committed against them - and all without telling them. >? In short, the purposes animating the CVRA all suggest that the Act was meant to, and should, extend rights to crime victims before formal charges are filed. B. THE CVRA'S PLAIN LANGUAGE While the general purposes of the CVRA support a broad interpretation of the Act, it is important to examine whether those purposes have been expressed in the Act's language. Without a linkage to the Act's text, the general purpose might not provide 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. 5! See supra notes 28-29. *2 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]. 3 Without disclosing confidential attorney-client communications, this fact is readily apparent from victims’ filings in the Epstein case. See, e.g., Jane Doe Motion, supra note 40, at 17 (stating that the victims relied on the U.S. Attorney's Office representatives "to their detriment[,]" that if they knew the true facts, "they would have taken steps to object" to the plea agreement, and that they believed criminal prosecution to be "extremely important"). DAVID SCHOEN HOUSE_OVERSIGHT_017611