Crime Victims' Rights Act
Increasing Awareness, Modifying the Complaint Process, and Enhancing Compliance Monitoring Will Improve Implementation of the Act Gao ID: GAO-09-54 December 15, 2008On October 30, 2004, the Crime Victims' Rights Act (CVRA) was enacted, establishing eight rights for federal crime victims and two mechanisms to enforce those rights. The legislation also directed GAO to evaluate the implementation of the CVRA. To address this mandate, GAO reviewed: (1) efforts made to implement the CVRA, (2) mechanisms in place to ensure adherence to the CVRA, (3) methods the Department of Justice (DOJ) uses to monitor performance regarding the provision of CVRA rights, and (4) key issues that have arisen in the interpretation of the CVRA by the federal courts. To conduct its analysis, GAO reviewed guidance materials, victim complaints, and court rulings, and conducted surveys and interviews with criminal justice system participants. GAO cannot generalize its crime victim survey results due to a low response rate.
To implement the CVRA, DOJ, and the federal judiciary have, among other things, revised internal guidelines, trained DOJ staff and judges, provided victims with emergency, temporary housing to protect them and proactively asked victims if they would like to speak in court. Mechanisms to ensure adherence to the CVRA include processes for victims to submit complaints against DOJ employees and assert their rights in court; however, the majority of victims who responded to GAO's survey reported they were not aware that these mechanisms exist, and the lack of independence within the complaint investigation process impedes impartiality. If victims are not aware of the complaint process or their ability to assert their rights in court, these mechanisms will not be effective at helping ensure that victims are afforded their rights. Under DOJ's victim complaint investigation process, investigators are located in the same office with the subject of the investigation, which could bias the investigation or give the appearance of such. If the investigation is biased, DOJ risks that employees' violations of victims' rights may be overlooked. DOJ has a strategic objective to uphold the rights of crime victims, but does not have performance measures in place to assess progress towards this objective. Without performance measures, DOJ may not be able to determine how well it is performing related to the provision of victims' rights. Additionally, DOJ has not required that components with similar victim-related functions submit the same type of data regarding compliance with victims' rights requirements, making it difficult to determine overall department compliance with the CVRA. Furthermore, DOJ guidelines require that all components with victim-related responsibilities incorporate information on adherence with victims' rights requirements into their work plans and into the performance appraisals for their employees. GAO found that 8 of the 14 relevant component agencies have met this requirement for all of their employees and 5 components are in the process of doing so. However, 1 component has not made efforts to this end, which will make it difficult for DOJ to hold employees in this component accountable for their responsibility to afford federal crime victims their rights. Several key issues have arisen in the courts, including (1) when in the criminal justice process CVRA rights apply, (2) what it means for a victim to be "reasonably heard" in court, and (3) what standard should be used to review victim appeals of district court decisions. While judicial interpretation of various aspects of a law typically occurs after new legislation is enacted, there is one CVRA issue that DOJ and court officials believe may benefit from statutory change. The CVRA is not explicit about whether the law applies to victims of local offenses prosecuted in the District of Columbia Superior Court. Without clarification on this issue, judges in this court may continue to differ in whether they apply the CVRA in their cases.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-54, Crime Victims' Rights Act: Increasing Awareness, Modifying the Complaint Process, and Enhancing Compliance Monitoring Will Improve Implementation of the Act
This is the accessible text file for GAO report number GAO-09-54
entitled 'Crime Victims' Rights Act: Increasing Awareness, Modifying
the Complaint Process, and Enhancing Compliance Monitoring Will Improve
Implementation of the Act' which was released on December 16, 2008.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as part
of a longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Report to Congressional Committees:
United States Government Accountability Office:
GAO:
December 2008:
Crime Victims' Rights Act:
Increasing Awareness, Modifying the Complaint Process, and Enhancing
Compliance Monitoring Will Improve Implementation of the Act:
GAO-09-54:
GAO Highlights:
Highlights of GAO-09-54, a report to congressional committees.
Why GAO Did This Study:
On October 30, 2004, the Crime Victims‘ Rights Act (CVRA) was enacted,
establishing eight rights for federal crime victims and two mechanisms
to enforce those rights. The legislation also directed GAO to evaluate
the implementation of the CVRA. To address this mandate, GAO reviewed:
(1) efforts made to implement the CVRA, (2) mechanisms in place to
ensure adherence to the CVRA, (3) methods the Department of Justice
(DOJ) uses to monitor performance regarding the provision of CVRA
rights, and (4) key issues that have arisen in the interpretation of
the CVRA by the federal courts. To conduct its analysis, GAO reviewed
guidance materials, victim complaints, and court rulings, and conducted
surveys and interviews with criminal justice system participants. GAO
cannot generalize its crime victim survey results due to a low response
rate.
What GAO Found:
To implement the CVRA, DOJ, and the federal judiciary have, among other
things, revised internal guidelines, trained DOJ staff and judges,
provided victims with emergency, temporary housing to protect them and
proactively asked victims if they would like to speak in court.
Mechanisms to ensure adherence to the CVRA include processes for
victims to submit complaints against DOJ employees and assert their
rights in court; however, the majority of victims who responded to
GAO‘s survey reported they were not aware that these mechanisms exist,
and the lack of independence within the complaint investigation process
impedes impartiality. If victims are not aware of the complaint process
or their ability to assert their rights in court, these mechanisms will
not be effective at helping ensure that victims are afforded their
rights. Under DOJ‘s victim complaint investigation process,
investigators are located in the same office with the subject of the
investigation, which could bias the investigation or give the
appearance of such. If the investigation is biased, DOJ risks that
employees‘ violations of victims‘ rights may be overlooked.
DOJ has a strategic objective to uphold the rights of crime victims,
but does not have performance measures in place to assess progress
towards this objective. Without performance measures, DOJ may not be
able to determine how well it is performing related to the provision of
victims‘ rights. Additionally, DOJ has not required that components
with similar victim-related functions submit the same type of data
regarding compliance with victims‘ rights requirements, making it
difficult to determine overall department compliance with the CVRA.
Furthermore, DOJ guidelines require that all components with victim-
related responsibilities incorporate information on adherence with
victims‘ rights requirements into their work plans and into the
performance appraisals for their employees. GAO found that 8 of the 14
relevant component agencies have met this requirement for all of their
employees and 5 components are in the process of doing so. However, 1
component has not made efforts to this end, which will make it
difficult for DOJ to hold employees in this component accountable for
their responsibility to afford federal crime victims their rights.
Several key issues have arisen in the courts, including (1) when in the
criminal justice process CVRA rights apply, (2) what it means for a
victim to be "reasonably heard" in court, and (3) what standard should
be used to review victim appeals of district court decisions. While
judicial interpretation of various aspects of a law typically occurs
after new legislation is enacted, there is one CVRA issue that DOJ and
court officials believe may benefit from statutory change. The CVRA is
not explicit about whether the law applies to victims of local offenses
prosecuted in the District of Columbia Superior Court. Without
clarification on this issue, judges in this court may continue to
differ in whether they apply the CVRA in their cases.
What GAO Recommends:
GAO recommends that DOJ: (1) increase victims‘ awareness of CVRA
enforcement mechanisms, (2) provide for a more impartial complaint
investigation process, (3) identify performance measures, (4)
standardize reporting of compliance information, and (5) insert
responsibilities for victims‘ rights into work plans and performance
appraisals. Also, GAO believes Congress should consider revising the
CVRA to clarify applicability to the District of Columbia Superior
Court. DOJ generally concurred with GAO's recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-09-54]. For more
information, contact Eileen Larence at (202) 512-6510 or
larencee@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Multiple Efforts Have Been Made to Implement the CVRA, and DOJ and
Federal Courts Have Taken Actions to Address Various Factors that Have
Presented Challenges for Affording Crime Victims Their Rights:
Complaint Process and Victims‘ Ability to File Motions Are Intended to
Ensure Adherence to CVRA, but Some Victims Are Not Aware of These
Enforcement Mechanisms and the Complaint Process Could Be Restructured
to Ensure Independence:
DOJ Generally Has Not Evaluated Overall Department Performance Related
to Victims‘ Rights, but Most Component Agencies Have Made Efforts to
Evaluate Their Employees‘ Adherence with Victims‘ Rights Requirements:
Several Key Issues Have Arisen as the Courts Interpret and Apply the
CVRA in Cases, and Judges Have Differing Interpretations Regarding
Whether the Law Applies to the District of Columbia Superior Court:
Perceptions Vary Regarding Awareness of and Satisfaction with Victims‘
Rights and Participation and Treatment of Crime Victims, and the
Potential for Conflicting Interests between Victims and Defendants Is a
Concern:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Federal Statutes Enacted between 1982 and 2004 that
Address Similar Issues as the CVRA:
Appendix III: Complaints Submitted to the Victims‘ Rights Ombudsman by
Individuals Determined to Be Federal Crime Victims:
Appendix IV: Summary of Cases in which a Court Issued a Decision Based
on the CVRA:
Appendix V: References to Adherence with Victims‘ Rights Requirements
in DOJ Work Plans and Performance Appraisals:
Appendix VI: Comments from the Department of Justice:
Appendix VII: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: Recommendations of the 1982 President‘s Task Force on Victims
of Crime:
Table 2: Department of Justice Component Agencies Responsible for
Implementing the CVRA:
Table 3: Funding Authorized by the CVRA:
Table 4: Examples of Efforts to Afford Federal Crime Victims Their CVRA
Rights that Were Made by Federal Investigative Agencies, U.S. Attorneys
Offices, and Federal Courts GAO Visited during Site Visits:
Table 5: Number of Times CVRA Rights Were Asserted in District Courts
and Courts of Appeals and How the Courts Ruled in Those Instances, as
of June 30, 2008:
Table 6: Cases that Address Whether the CVRA Applies to Potential
Victims of Uninvestigated Offenses:
Table 7: Cases that Address Whether the CVRA Applies to Victims of
Investigated Offenses that Have Not Been Charged:
Table 8: Cases that Address the CVRA‘s ’Direct and Proximate Harm“
Definition of a Victim:
Table 9: Cases that Address the Meaning of the Right to Be Reasonably
Heard:
Table 10: Cases that Address the Disclosure of Presentence Reports and
Other Nonpublic Information under the CVRA:
Table 11: Cases that Address the Standard of Review for Deciding
Petitions for Writs of Mandamus under the CVRA:
Table 12: Cases that Address the Applicability of the CVRA to the D.C.
Superior Court:
Table 13: Cases in which Defendants Appealed Convictions or Sentences
Based on the CVRA:
Table 14: Number of Crime Victims Listed in VNS Whose Cases Were Opened
and Closed between January 1, 2006, and November 30, 2007, by Type of
Crime:
Table 15: Types of Federal Officials GAO Met with or Spoke with at Site
Visit Locations for the CVRA Review:
Table 16: Number of Notification Letters Sent by Select Large, Medium,
and Small U.S. Attorneys Offices during One 30-day Period from February
2008 to April 2008:
Table 17: Federal Statutes Enacted from 1982 to 2004 That Address
Similar Issues as the CVRA:
Table 18: Complaints Submitted to the Victims‘ Rights Ombudsman from
December 2005 to April 2008 by Individuals Determined to Be Federal
Crime Victims:
Table 19: Summary of Cases in which a Court Issued a Decision Based on
the CVRA that We Reviewed, as of June 30, 2008[A]:
Table 20: Examples of References to Victim-Related Responsibilities in
Performance Appraisals and Work Plans of Investigators, Attorneys, and
Other DOJ Staff Positions:
Figures:
Figure 1: Percentage of Crime Victims Registered in the Victim
Notification System by Federal Investigative Agency, as of October
2007. N=1,564,667:
Figure 2: Extent to which Factors Often or Very Often Hindered Victim-
Witness Professionals‘ Ability to Send Timely Notice to Victims of
Pretrial Proceedings:
Figure 3: Reasons Why the VRO Closed 130 Complaints:
Figure 4: Awareness of CVRA Rights among Victims Who Responded to the
GAO Survey:
Figure 5: Satisfaction with the Provision of CVRA Rights among Victims
Who Responded to the GAO Survey:
Abbreviations:
AOUSC: Administrative Office of the United States Courts:
ATF: Bureau of Alcohol, Tobacco, Firearms, and Explosives:
AUSA: Assistant U.S. Attorney:
BOP: Bureau of Prisons:
CM/ECF: Case Management/Electronic Case Filing system:
CTS: Counterterrorism Section:
CVRA: Crime Victims' Rights Act:
DEA: Drug Enforcement Agency:
DOJ: Department of Justice:
EOUSA: Executive Office of the United States Attorneys:
FBI: Federal Bureau of Investigation:
FJC: Federal Judicial Center:
GPRA: Government Performance and Results Act:
LIONS: Legal Information Office Network System:
NAC: National Advocacy Center:
NCVLI: National Crime Victims Law Institute:
OIG: Office of the Inspector General:
OJP: Office for Justice Programs:
OVA: Office for Victims Assistance:
OVC: Office for Victims of Crime:
OVT: Office of Justice for Victims of Overseas Terrorism:
USAO: U.S. Attorneys Offices:
USMS: U.S. Marshals Service:
USPC: U.S. Parole Commission:
USPIS: U.S. Postal Inspection Service:
VNS: Victim Notification System:
VRO: Victims' Rights Ombudsman:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
December 15, 2008:
The Honorable Patrick J. Leahy:
Chairman:
The Honorable Arlen Specter:
Ranking Member:
Committee on the Judiciary:
United States Senate:
The Honorable John Conyers, Jr.
Chairman:
The Honorable Lamar Smith:
Ranking Member:
Committee on the Judiciary:
House of Representatives:
The Honorable Joseph R. Biden, Jr.
Chairman:
The Honorable Lindsey Graham:
Ranking Member:
Subcommittee on Crime and Drugs:
Committee on the Judiciary:
United States Senate:
The Honorable Robert C. "Bobby" Scott:
Chairman:
The Honorable Louie Gohmert:
Ranking Member:
Subcommittee on Crime, Terrorism, and Homeland Security:
Committee on the Judiciary:
House of Representatives:
According to the Department of Justice (DOJ), as of September 2008
there were approximately 750,000 crime victims in the federal criminal
justice system with active cases. In general, for a crime to be
prosecuted within the federal criminal justice system, it must be a
violation of a federal law. The role for crime victims within the
criminal justice process has changed over time. Since the middle of the
nineteenth century, crime in the United States has been a public rather
than private matter, where the philosophy has been that criminal
prosecutions should serve societal interests of deterrence and
retribution, as opposed to the individual interests of victims. As
such, the American criminal justice system is comprised of two parties-
-a public prosecutor and the defense--who present their arguments to an
impartial body (the judge and jury) for judgment. However, individuals
advocating on behalf of crime victims have raised concerns that by
focusing solely on the public interest, the criminal justice system has
overlooked the individual interests and needs of victims and has
limited victims' access to and participation in the prosecution of
their cases.
In April 1982, President Reagan formed the President's Task Force on
Victims of Crime (Task Force) to investigate the treatment of crime
victims within the criminal justice system. The Task Force concluded
that, in general, many crime victims were neglected by the criminal
justice system, and in its final report (issued in December 1982) the
Task Force presented multiple recommendations for how executive and
legislative branches of federal and state governments, as well as the
private sector, could help improve the treatment of crime victims.
According to the National Conference of State Legislatures, 33 states
have incorporated victims' rights into their state constitutions, and
all 50 states and the District of Columbia have some form of
legislation affording rights to crime victims. At the federal level,
the government implemented many of the Task Force's recommendations by
passing laws that both afforded certain rights to federal crime victims
and made funding available to provide a range of services to them.
Most recently, on October 30, 2004, the Justice for All Act was signed
into law.[Footnote 1] Title I of this act--the Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime
Victims' Rights Act (CVRA)--established eight rights for federal crime
victims, including, among others, the right to be notified of any
public court proceeding, the right not to be excluded from such
proceedings, and the right to be heard at certain public court
proceedings related to the crime. The law requires officers and
employees of DOJ, which includes prosecutors, investigative agents, and
victim-witness professionals--individuals who are responsible for
providing services to crime victims and witnesses--to make their best
efforts to see that crime victims are notified of and accorded their
rights under the CVRA. Since most federal crimes are prosecuted by
DOJ's U.S. Attorneys Offices (USAO), staff in these offices have
primary responsibility for assisting crime victims during the
prosecution phase of a case. The federal courts also have
responsibilities for ensuring that crime victims are afforded their
CVRA rights, such as by generally not excluding victims from certain
public court proceedings.
The CVRA also established mechanisms to enforce crime victims' rights.
Specifically, to ensure that DOJ employees are complying with CVRA
requirements, the act directs DOJ to establish a process for receiving
and investigating victim-related complaints against DOJ employees, and
to require training or impose disciplinary sanctions on any DOJ
employees who fail to comply with federal law pertaining to the
treatment of crime victims. The CVRA also enables victims to assert
their rights in district court by filing a motion for relief [Footnote
2]--a formal request made to a judge for an order or ruling--with the
district court regarding the provision of their rights.[Footnote 3] If
the district court denies victims the relief they are seeking--such as
a request that the judge allow the victim to be heard at a court
proceeding--the victim can petition the court of appeals for a writ of
mandamus, in which case the court of appeals may instruct the district
court to grant the victim the relief sought.[Footnote 4]
Section 104(b) of the Justice for All Act directs GAO to evaluate the
"effect and efficacy of the implementation of the [CVRA] on the
treatment of crime victims in the federal system." To address this
mandate, we sought answers to the following questions:
1. What efforts have been made to implement the CVRA, what factors have
affected these implementation efforts, and how have these factors been
addressed?
2. What mechanisms are in place to ensure adherence to the CVRA, and
how well are these mechanisms working?
3. To what extent does DOJ monitor its performance and the performance
of its employees regarding the provision of CVRA rights?
4. What are the key issues that have arisen as courts interpret and
apply the CVRA in cases?
5. What are the perspectives of various participants in the federal
criminal justice system regarding the effect and efficacy of CVRA
implementation?
Our approach for evaluating the effect and efficacy of CVRA
implementation was comprised of various evaluation methods. First, we
surveyed by mail a stratified random probability sample of federal
crime victims whose cases became active on or after January 1, 2006,
and were closed no later than November 30, 2007. We selected the start
date because the DOJ guidance and regulations for implementing the CVRA
were effective as of December 19, 2005. The case-closed date was
selected because we drew our sample in February 2008 and wanted to
offer DOJ officials sufficient time to update the database from which
we drew our sample for cases closed by the end of November 2007. We
surveyed only victims whose cases were closed in order to obtain
victims' perspectives over the duration of the criminal justice
process. We selected our sample of federal crime victims from DOJ's
Victim Notification System (VNS), which is used to notify crime victims
of proceedings related to their cases. Of the 1,179 victims we
surveyed, 248 (21 percent) returned completed questionnaires. Due to
the relatively low response rate to our survey, we cannot generalize
the survey results to all federal crime victims in our study period;
instead, the discussion of survey results is limited only to the
victims who responded. However, these results provided us with an
indication of the range of views held by federal crime victims who
responded.
Second, we conducted a Web-based survey of all 201 victim-witness
professionals who were located in each of the 93 U.S. Attorneys Offices
as of April 2008, which is when we issued the survey, to obtain their
perspectives about CVRA implementation. We received responses from 174
(87 percent) of them.
Third, we visited nine federal judicial districts. We visited the
District of Arizona and the District of Maryland during the design
phase of our review due to the long-standing history of victims' rights
enforcement in these states. Because CVRA enforcement mechanisms--
including victims' ability to file motions in court and petition for
writs of mandamus--is an expansion of other federal crime victims
statutes, we visited locations where these enforcement mechanisms had
been employed. We selected a nonprobability sample of seven federal
judicial districts, in six different federal circuits, to visit because
these districts either had multiple instances in which individuals
asserted CVRA rights in court or a judge, on his or her own initiative,
based a case-related decision on the CVRA.[Footnote 5] In addition, one
of these districts is where several victim complaints against DOJ
employees were investigated. We met with district or magistrate judges,
Federal Public Defenders or Assistant Federal Public Defenders, and
U.S. Attorneys Office staff--including Criminal Division Chiefs,
Assistant U.S. Attorneys, and victim-witness professionals--who were
involved in cases where crime victims filed CVRA-related motions or
petitioned for writs of mandamus. In addition, we met with
investigative agents and victim-witness professionals at Federal Bureau
of Investigation (FBI) field offices and at U.S. Postal Inspection
Service (USPIS), Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF), and Drug Enforcement Agency (DEA) offices if located in the
jurisdictions we visited. Because we used nonprobability sampling to
select federal judicial districts to visit, the information we obtained
from these visits cannot be generalized to other districts. However,
the visits provided us with information on the perspectives of various
participants in the federal judicial system about CVRA.
In addition to the surveys and site visits, we employed other
methodologies to address each individual objective. To address our
first objective, we reviewed CVRA-related written guidance and training
materials made available to DOJ employees and federal judges. We
interviewed DOJ headquarters officials--including Executive Office of
the United States Attorneys (EOUSA) staff who oversee the victim-
witness program for U.S. Attorneys Offices, USAO staff, investigative
agency field staff, and federal judiciary officials from the
Administrative Office of the United States Courts (AOUSC), the Federal
Judicial Center (FJC), and various federal judges. Also, we reviewed
the timeliness of notification letters sent by select U.S. Attorneys
Offices--three large, three medium-sized, and three small USAOs--over
specified 30-day periods.[Footnote 6] Because we selected a
nonprobability sample of USAOs and notification letters from these
offices, the results of this analysis cannot be generalized either to
other USAOs or to all notification letters sent by the offices we
selected. However, this analysis provided us with informative examples
of the timeliness of notification letters sent by USAOs.
To address the second objective, we reviewed files related to 141 of
the 144 victim complaints received by DOJ's Victims' Rights Ombudsman
(VRO) from December 2005 to April 2008[Footnote 7] to obtain
information on the nature of the complaints and the VRO's decisions as
to whether the DOJ office or employees cited in the complaints had not
afforded victims their CVRA rights. We selected December 2005 as the
start date for our review of victim complaints because this was when
the first person filed a complaint with the VRO. While DOJ's
regulations regarding the complaint process did not take effect until
December 19, 2005, the VRO accepted a complaint filed before the
effective date and responded to it after the regulations took
effect[Footnote 8]. We chose April 2008 as the end date of our review
to allow us enough time to analyze the complaint information prior to
issuing our report. We also reviewed internal guidelines about the
victim complaint process and met with the VRO and the five DOJ
employees who had investigated victims' complaints. We compared DOJ's
victim complaint investigation process to professional ombudsman
standards as well as the practices used by other offices that conduct
similar investigation[Footnote 9]s. Also, we reviewed various DOJ
components' brochures and Web sites to determine what complaint process
information was being provided to crime victims. We also obtained
information on instances where the CVRA was addressed in court,
including motions or petitions for writs of mandamus filed by victims.
We identified CVRA-related cases using legal search engines, court
dockets, interviews, and case compilations generated by the FJC and the
National Crime Victims Law Institute (NCVLI). We also interviewed
judges and prosecutors involved in cases where victims asserted their
rights.
For the third objective, we reviewed DOJ's 2007-2012 Strategic Plan as
well as the strategic plans of DOJ components with victim-related
responsibilities to determine the extent to which the department and
relevant components had developed CVRA-related objectives and measures.
We assessed the contents of these documents against the requirements of
the Government Performance and Results Act (GPRA). We also reviewed the
annual compliance reports prepared by each DOJ component agency with
victim-related responsibilities. Lastly, we reviewed the work plans and
performance appraisal criteria for all DOJ employees.
To address objective four, we reviewed and analyzed CVRA-related
motions and petitions for writs of mandamus and cases in which the CVRA
was otherwise mentioned to identify key CVRA provisions that are being
interpreted by the courts and any differences in the courts'
interpretations. However, we are not in a position to make an
evaluative judgment on the courts' decisions. In addition, we
interviewed judges, prosecutors, defense attorneys, and victim
attorneys who were involved in cases that addressed the CVRA. We also
analyzed DOJ CVRA-related policies and interviewed DOJ officials about
these policies.
For the final objective, we used our victim survey to assess the extent
to which respondents were aware of and satisfied with the provision of
their CVRA rights, and the extent to which they exercised these rights.
As stated previously in this report, given our survey's low response
rate, these results cannot be generalized to all victims in our study
period. However, these results provided us with an indication of the
range of views held by federal crime victims who responded. We obtained
victim-witness professionals' perspectives about the effect and
efficacy of CVRA implementation through the Web-based survey and site
visits. In our site visits, we also interviewed federal judges, federal
prosecutors, and federal defenders about the CVRA's overall impact. In
addition, we talked with representatives of national crime victim
advocacy associations--such as the National Center for Victims of
Crime--about the effect and efficacy of the CVRA, and interviewed
representatives from defendant rights advocacy organizations, such as
the American Civil Liberties Union. We identified these organizations
based on publications they had issued regarding crime victims' rights.
We conducted this performance audit from May 2007 to December 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives. Appendix I contains more
details about our scope and methodology.
Results in Brief:
DOJ and the federal judiciary have made various efforts to implement
the CVRA--from revising internal guidelines and developing training
materials for DOJ staff and judges to providing victims with emergency,
temporary housing in some cases to protect them from the accused
offender and proactively asking victims if they would like to speak in
court--as well as taken actions to address four factors that have
affected CVRA implementation. These factors include the characteristics
of certain cases, the increased workload of some USAO staff, the
scheduling of court proceedings, and diverging interests between the
prosecution and victims. First, the characteristics of certain cases,
such as the number of victims involved and the location of the victims,
make it difficult to afford victims certain CVRA rights. For instance,
USAO staff stated that it can be difficult to provide timely
notification of court proceedings to victims located on Indian
reservations because the victims may not have access to a mailbox,
telephone, or the Internet. To address this challenge, victim-witness
personnel told us that they have driven to Indian reservations to
personally inform victims of upcoming court proceedings. Second, due to
CVRA requirements, particularly notification requirements, USAO victim-
witness staff face an increased workload--about 45 percent of staff who
responded to our survey reported working an average of about 6
additional hours per week in order to meet CVRA requirements. DOJ has
made efforts to address this issue by providing funding to 41 of the 93
USAOs to hire contractors to assist with clerical duties related to
victim notification. Third, inherent characteristics of the criminal
justice process, such as the short period of time over which pretrial
proceedings are scheduled and take place, make it difficult to provide
timely notice to crime victims and afford them their right to be heard.
When faced with this challenge, USAO victim-witness personnel told us
that they have notified victims of court proceedings by telephone
rather than mail, which may not arrive in enough time to enable the
victim to attend the proceeding. Fourth, diverging interests between
the prosecution and victims may affect the way in which the government
affords victims their CVRA rights. For instance, according to DOJ, it
is not always in the interest of a successful prosecution for victims
to be notified of and attend a plea hearing for a cooperating defendant
who agrees to testify against or provide information about other
defendants in the case in exchange for a lesser sentence because public
knowledge of the defendant's cooperation could compromise the
investigation, as well as bring harm to the defendant and others. DOJ's
efforts to address this issue include requesting that the court close
plea agreement proceedings and proposing legislation to revise the CVRA
to allow for an exception to victims' notification rights in these
instances.
Mechanisms in place to ensure adherence to the CVRA include processes
for victims to (1) submit complaints against DOJ employees who have
allegedly violated or not provided rights to a crime victim and (2)
assert their rights in court; however, the majority of victims who
responded to our survey reported that they were not aware that these
mechanisms exist. In addition, the lack of independence among
investigators involved in the complaint investigation process impedes
impartiality. Specifically, 129 of the 235 victims who responded to our
survey question regarding the complaint process reported that they were
not aware of it, and 51 did not recall whether they were aware. USAOs
have been directed to take reasonable steps to provide notice to
victims of the complaint process, and they generally do so through a
brochure provided to victims at the beginning of the case. However, DOJ
has opportunities to enhance victim awareness of the complaint process,
such as by making greater use of office Web sites to publicize the
process or, when appropriate, personally informing victims. If victims
are not aware of the complaint process, it becomes an ineffective
method for ensuring that the responsible DOJ officials are complying
with CVRA requirements and that corrective action is taken when needed.
Furthermore, the lack of independence within the complaint
investigation process could compromise impartiality of the
investigation. Professional ombudsman standards for investigating
complaints against employees, as well as the practices of other offices
that investigate complaints, suggest that the investigative process
should be structured to ensure impartiality. For example, in practice,
the investigators are generally not located in the same office with the
subject of the investigation, in order to avoid possible bias. DOJ's
Office of Professional Responsibility, which investigates other types
of complaints against DOJ employees, also does not use investigators
who are located in the same office with the subject of the complaint.
However, under DOJ's victim complaint investigation process, the two
are generally located in the same office. In addition, in some
instances the DOJ victim complaint investigator has been the
subordinate or peer of the subject of the complaint. According to DOJ
officials, the department structured the victim complaint investigation
process as such due to resource constraints and the perception that
complaints could be resolved more quickly if addressed locally.
However, this structure gives the appearance of bias in the
investigation, which raises questions as to whether DOJ employees'
violation of victims' rights will be overlooked and employees will not
receive appropriate training on the treatment of crime victims or
disciplinary sanctions. The results of our survey also suggest that
victims lack awareness of their ability to file a motion to assert
their CVRA rights in district court. Specifically, 134 of the 236
victims who responded to our survey question regarding victim motions
reported that they were not aware of their ability to file a motion to
assert their rights in district court, and 48 did not recall whether
they were aware. DOJ generally does not inform victims of their ability
to assert their rights in court. While the CVRA does not explicitly
require DOJ to do so, the law does direct DOJ to inform victims of
their eight CVRA rights and their ability to seek the advice of an
attorney. In addition, DOJ's guidelines state that responsible
officials should provide information to victims about their role in the
criminal justice process, which could include their ability to file
motions with regard to their CVRA rights. If victims are not aware of
their ability to assert their rights in court, it will reduce the
effectiveness of this mechanism in ensuring adherence to victims'
rights and addressing any violations.
DOJ has an overall departmental objective to uphold the rights of crime
victims, but it does not have performance measures in place to assess
the extent to which this objective is met. While DOJ components with
victim-related responsibilities have made efforts to collect
information regarding their provision of victims' rights, these efforts
have not been timely or standardized, thus limiting the usefulness of
the information in assessing overall performance across DOJ.
Furthermore, not all relevant DOJ components have incorporated
adherence to victims' rights in the performance appraisal criteria for
all their employees with victim-related responsibilities. In the
absence of performance measures, agencies may not be able to determine
how well they are performing related to the provision of victims'
rights, nor can they identify or address deficiencies in performance.
Federal law requires DOJ's Office for Victims of Crime to monitor the
department's compliance with internal guidelines regarding fair
treatment of victims and witnesses. In response, the Office for Victims
of Crime is to collect compliance information from components with
victim-related responsibilities, including DOJ's 4 investigative
agencies, such as the Federal Bureau of Investigation, 8 litigation
divisions, such as the USAOs, and 2 corrections divisions, such as the
Bureau of Prisons. However, until August 2008, the office had not yet
analyzed and reported on the compliance information collected since
implementation of the CVRA--although internal guidelines state that
this information is supposed to be reported annually--thus preventing
DOJ from identifying and addressing deficiencies related to the
provision of victims' rights in a timely manner, as recommended by
standards for internal control in the federal government. Officials in
this office said that they lacked the resources to analyze and report
the compliance information. However, in August 2008, Office for Victims
of Crime officials stated that they had received funding and begun
analyzing the compliance data submitted to them by the various DOJ
components. The office may be hindered in its analysis, however,
because it has not required that components with similar victim-related
functions submit the same type of data--which we have previously
recommended for federal agencies in general, thus making it difficult
to determine overall department compliance. Finally, DOJ guidelines
require that all components with victim-related responsibilities
incorporate information on adherence to victims' rights requirements
into their work plans and into the performance appraisals for their
employees. We found that 8 of the 14 relevant DOJ components have
complied with this requirement for all responsible employees, and as of
October 2008 officials from 5 of the remaining 6 components told us
that they were in the process of fulfilling this requirement. According
to the Director of the FBI's Office for Victim Assistance, it is not
necessary to incorporate references to victims' rights in the
performance appraisals for FBI investigative agents and victim
specialists because adherence to victims' rights requirements is
included in the performance appraisals for the special agents-in-
charge, who generally are responsible for the activities of an entire
FBI field office. However, considering that investigative agents are
responsible for identifying victims and victim specialists help ensure
victims receive needed services, incorporating victims' rights
requirements into their performance appraisals could better ensure that
these employees are aware of and held accountable for their CVRA
responsibilities.
Several key issues have arisen as courts interpret and apply the CVRA
in cases, including (1) when in the criminal justice process CVRA
rights apply, (2) what it means for a victim to be "reasonably heard"
in court proceedings, (3) which standard should be used to review
victim appeals of district court decisions regarding CVRA rights, and
(4) whether the CVRA applies to victims of local offenses prosecuted in
the District of Columbia Superior Court. First, the courts have issued
varied decisions regarding whether CVRA rights apply to victims of
offenses that have not been charged in court by DOJ, stating that the
law applies in some circumstances and not in others. On the other hand,
DOJ has specified in its guidelines that CVRA rights do not apply
unless charges have been filed against a defendant, based on its
initial interpretation of the law, but is reviewing its policy in
response to a court ruling in 2008.[Footnote 10] As of September 2008,
DOJ could not provide an estimated date of when the review of its
policy would be completed. Second, the courts have issued varied
rulings that interpret the meaning of the right to be "reasonably
heard" at court proceedings, with, for example, one court ruling that
the right to be heard gave victims the right to speak and another
ruling that the right could be satisfied by a written statement, given
the specific facts of the case. Third, the courts have differing
interpretations regarding which standard should be used to review
victim appeals of district court decisions regarding CVRA rights, with
U.S. courts of appeals using two different standards, one of which is
stricter than the other, to review these appeals. As typically occurs
when new legislation is enacted, the courts are interpreting and
applying provisions of the CVRA through rulings on individual cases
that come before them, which helps to further develop the law. However,
DOJ and D.C. Superior Court officials stated that a statutory change
would be beneficial in resolving the issue of CVRA applicability to the
D.C. Superior Court.[Footnote 11] The CVRA is not explicit about
whether the law applies to victims of local offenses prosecuted in this
court. As a result, judges in the D.C. Superior Court have differing
interpretations on this issue. In July 2005, DOJ proposed legislation
to clarify whether the CVRA applies to cases in the D.C. Superior
Court, but no legislation had been passed as of October 23, 2008.
Without clarification on this issue, the question of whether the D.C.
Superior Court has responsibility to implement the CVRA will remain and
judges in the D.C. Superior Court may continue to differ in whether
they apply the law in their cases.
Perceptions are mixed regarding the effect and efficacy of the
implementation of the CVRA, based on factors such as awareness of CVRA
rights, victim satisfaction, participation, and treatment, as well as
regarding potential conflicts of the law with defendants' interests.
For example, while a majority of federal crime victims who responded to
our survey reported that they were aware of most of their CVRA rights,
less than half reported that they were aware of their right to confer
with the prosecutor. In addition, victims who responded to our survey
reported varying levels of satisfaction with the provision of
individual CVRA rights. For instance, 132 of the 169 victims who
responded to the survey question regarding satisfaction with their
right to notice of public court proceedings reported being satisfied
with the provision of this right. In contrast, only 72 of the 229
victims who responded to the survey question regarding satisfaction
with the right to confer with the prosecutor reported being satisfied
with the provision of this right. The general perception among the
criminal justice system participants we spoke with and surveyed is that
CVRA implementation has improved the treatment of crime victims,
although many also believe that victims were treated well prior to the
act because of the influence of well-established victims' rights laws
at the state level. Furthermore, while 72 percent of the victim-witness
personnel who responded to our survey perceived that the CVRA has
resulted in at least some increase in victim attendance at public court
proceedings, 141 of the 167 victims who responded to our survey
question regarding participation reported that they did not attend any
of the proceedings related to their cases, primarily because the
location of the court was too far to travel or they were not interested
in attending. Finally, defense attorneys and representatives of
organizations that promote the enforcement of defendants' rights
expressed some concerns that CVRA implementation may pose conflicts
with the interests of defendants. For example, victims have the right
not to be excluded from public court proceedings unless clear and
convincing evidence can be shown that their testimony would be
materially altered if they heard the testimony of others first.
However, 5 of the 9 federal defenders and 6 of the 19 district judges
we met with said that it would be very difficult, if not impossible, to
provide such evidence that the victim's testimony would be materially
altered.
We are making several recommendations to assist DOJ in its efforts to
effectively implement the CVRA. These include making efforts to
increase victims' awareness of the complaint process and their ability
to assert their rights in court to help ensure that these are effective
mechanisms for promoting CVRA compliance; restructuring the complaint
investigation process to ensure greater independence and impartiality
among complaint investigators; and identifying performance measures
regarding victims' rights, collecting standard compliance data, and
incorporating references to adherence with victims' rights in the work
plans and performance appraisals for investigative agents and victim
specialists to help ensure accountability for the provision of victims'
rights. We also believe that Congress should consider revising the
language of the CVRA to clarify whether the CVRA applies to victims of
local offenses prosecuted in the District of Columbia Superior Court.
We provided a draft of this report to DOJ and AOUSC for review. DOJ and
AOUSC both provided technical comments that we incorporated as
appropriate. DOJ, in its written comments, generally concurred with the
recommendations in the report and stated that the department intends to
convene a working group to consider the extent and manner in which they
are implemented. The full text of DOJ's comments is provided in
appendix VI.
Background:
Victims of Federal Crimes:
According to DOJ, as of September 2008, over 750,000 crime victims with
active cases were registered with the Victim Notification System--the
electronic system DOJ uses to notify federal crime victims of events
related to their cases. In general, for a crime to be prosecuted within
the federal criminal justice system, it must be a violation of a
federal law. Almost half of the federal criminal cases that commenced
between March 2006 and March 2007 in the federal criminal justice
system were related to immigration and narcotics violations, which
generally do not involve any victims. The most common types of cases
prosecuted in the federal criminal justice system during the same 12
month period that did involve victims include: fraud; burglary, larceny
and theft; sex offenses; and robberies.
Evolution of Crime Victims' Rights:
In colonial America, crime was primarily resolved privately. Crimes
were generally investigated and prosecuted at the initiative and cost
of the victim, who usually hired a private investigator and attorney to
handle the case. However, a shift in perspective occurred in the late
1800s, after which crime was perceived to affect not only individual
victims but society in general. As a result, the government assumed
responsibility for investigating and prosecuting criminal activity, and
crime victims lost their status as parties in the criminal justice
process. In the 1960s, individuals advocating on behalf of crime
victims claimed that by not being acknowledged as a formal party, crime
victims were not treated fairly within the criminal justice system and
their interests were ignored. In response to these concerns, in April
1982 President Reagan formed the President's Task Force on Victims of
Crime. The Task Force concluded that crime victims had been overlooked
by the criminal justice system and in its final report issued in
December 1982, the Task Force outlined 45 recommendations for the
executive, legislative, and judicial branches of government for
improving the treatment of crime victims. The recommendations that are
applicable to the federal government are provided in table 1 below.
Table 1: Recommendations of the 1982 President's Task Force on Victims
of Crime:
Legislative recommendations:
* Legislation should be enacted to ensure that addresses of victims and
witnesses are not made public or available to the defense, absent a
clear need as determined by the court;
* Legislation should be enacted to abolish parole and limit judicial
discretion in sentencing;
* Legislation should be enacted to provide for the protection of
victims and witnesses from intimidation;
* Legislation should be enacted to require restitution in all cases,
unless the court provides specific reasons for failing to require it;
* Legislation should be enacted to ensure that sexual assault victims
are not required to assume the cost of physical examinations and
materials used to obtain evidence;
* Congress should enact legislation to provide federal funding to
assist state crime victim compensation programs;
* Congress should enact legislation to provide federal funding—to
assist in the operation of federal, state, local, and private
victim/witness assistance agencies that make comprehensive case
information available to all victims of crime.
Prosecutorial recommendations:
* Prosecutors should assume ultimate responsibility for informing
victims of the status of a case from the time of the initial charging
decision to determinations of parole;
* Prosecutors have an obligation to bring to the attention of the court
the views of the victims of violent crime on bail decisions,
continuances, plea bargains, dismissals, sentencing, and restitution.
They should establish procedures to ensure that such victims are given
the opportunity to make their views on these matters known;
* Prosecutors should strongly discourage case continuances.
Judiciary recommendations:
* Judges should allow victims and witnesses to be on call for court
proceedings;
* When ruling on requests for continuances, judges should give the same
weight to the interests of victims and witnesses as that given to the
interests of defendants;
* Judges should allow for, and give appropriate weight to, input at
sentencing from victims of violent crime;
* Judges should order restitution to the victim in all cases in which
the victim has suffered financial loss, unless they state compelling
reasons for a contrary ruling on the record;
* Judges should allow the victim and a member of the victim's family to
attend the trial, even if identified as witnesses, absent a compelling
need to the contrary.
Source: GAO analysis of the final report of the President's Task Force
on Victims of Crime.
[End of table]
The recommendations of the President's Task Force on Victims of Crime
provided the basis for subsequent attempts to amend the U.S.
Constitution, as well as the enactment of statutes regarding the role
of the crime victim in the criminal justice process. According to the
Congressional Research Service, between 1996 and 2003 there were nine
hearings held in the U.S. House of Representatives and U.S. Senate on
the issue of amending the Constitution to incorporate victims' rights,
but the legislation proposing to amend the Constitution was never
brought up for a vote in either chamber of Congress. The federal
government did, however, enact statutes that implemented many of the
Task Force's recommendations by both affording certain rights to
federal crime victims and making funding available to provide a range
of services to crime victims.
Since 1982, the federal government has passed a number of laws that
address the role of the crime victim in the criminal justice system,
including the Victim and Witness Protection Act of 1982,[Footnote 12]
Victims of Crime Act of 1984,[Footnote 13] Victims' Rights and
Restitution Act of 1990,[Footnote 14] Violent Crime Control and Law
Enforcement Act of 1994,[Footnote 15] Mandatory Victims Restitution Act
of 1996,[Footnote 16] Victim Rights Clarification Act of 1997,[Footnote
17] and Crime Victims' Rights Act of 2004.[Footnote 18]
Several of these statutes provided crime victims with rights, but they
also directed federal officials to provide victims with various
services, such as notification of certain public court proceedings.
In particular, the Victims' Rights and Restitution Act of 1990
identified crime victims' rights, delineating seven such rights and
requiring federal officials to make their best efforts to see that
crime victims are accorded these rights.[Footnote 19] The 1990 law also
included a separate provision, codified at 42 U.S.C. § 10607, that
requires federal officials to identify crime victims and provide them
information about their cases and about services that may be available
to them.[Footnote 20] For example, it requires officials to provide
victims with the earliest possible notice of the status of the
investigation of the crime, to the extent that it is appropriate to
inform the victim and to the extent that it will not interfere with the
investigation, as well as notice of the arrest of the suspected
offender, the filing of charges against the suspected offender, the
scheduling of certain court proceedings, the release or detention
status of the offender, the acceptance of a plea or the rendering of a
verdict, and the sentence imposed on the offender. The law also
requires officials to inform victims of a place where they may receive
emergency medical and social services, to inform victims of programs
that are available to provide counseling, treatment, and other support
to the victim, and to assist victims in contacting persons who can
provide such services. Further, the law requires officials to arrange
for victims to receive reasonable protection from a suspected offender
and ensure that victims are provided a waiting area removed from and
out of the sight and hearing of the defendant and defense witnesses
during court proceedings.
On October 30, 2004, the Crime Victims' Rights Act, as a component of
the Justice for All Act, was signed into law.[Footnote 21] The CVRA
left in place 42 U.S.C. § 10607--the provision requiring federal
officials to inform victims about their cases and about services
available to them--but the CVRA modified the provision from the 1990
law regarding crime victims' rights and identified eight rights for
federal crime victims, some of which were similar to the rights from
the 1990 law and others of which were new. The CVRA provided that crime
victims have the following rights:
* the right to be reasonably protected from the accused;
* the right to reasonable, accurate, and timely notice of any public
court proceeding, or any parole proceeding, involving the crime or of
any release or escape of the accused;
* the right not to be excluded from any such public court proceeding,
unless the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if
the victim heard other testimony at that proceeding;
* the right to be reasonably heard at any public proceeding in the
district court involving the release, plea, sentencing, or any parole
proceeding;
* the reasonable right to confer with the attorney for the government
in the case;
* the right to full and timely restitution as provided in law;
* the right to proceedings free from unreasonable delay; and:
* the right to be treated with fairness and with respect for the
victim's dignity and privacy.[Footnote 22]
As shown in appendix II, earlier statutes included provisions that may
be considered precursors to or foundations for the rights established
by the CVRA.
Mechanisms for Federal Crime Victims to Ensure Adherence to the CVRA:
The CVRA also established two mechanisms to ensure adherence to
victims' rights under the law, neither of which had been available
under previous statutes. Specifically, to ensure that DOJ employees are
complying with CVRA requirements, the law directed DOJ to designate an
administrative authority to receive and investigate complaints relating
to the provision or violation of crime victims' rights.[Footnote 23] To
comply with this provision in the statute, DOJ issued regulations
creating the Victims' Rights Ombudsman.[Footnote 24] The VRO is a
position within the Executive Office of United States Attorneys--the
DOJ division responsible for facilitating coordination between USAOs,
evaluating USAO performance, and providing general legal
interpretations and opinions to USAOs, amongst other things. Federal
crime victims may submit written complaints to the designated point of
contact for the DOJ division that is the subject of the complaint, who
then investigates the complaint and reports the results of the
investigation to the VRO. Victims may also submit complaints directly
to the VRO. If the VRO finds that an employee failed to afford a CVRA
right to a victim, the VRO must require that employee to undergo
training on victims' rights. If based on an investigation the VRO
determines that an employee willfully and wantonly failed to provide a
victim with a CVRA right, the VRO must recommend a range of
disciplinary sanctions to the official authorized to take action on
disciplinary matters for the relevant office. The CVRA does not require
DOJ employees to provide relief to victims whose rights have been
violated, but the VRO guidelines do require investigators, to the best
of their ability, to resolve complaints to the victims' satisfaction.
The CVRA also enables victims to assert their rights in district court,
by filing a motion--which they can do either verbally or per a written
request--with the court.[Footnote 25] Unlike the complaint process,
this mechanism allows victims to assert their rights and seek relief
from the court, and can be employed not only when victims believe that
a DOJ employee violated their rights, but when they have general
concerns regarding the provision of their rights. If the district court
denies the victim's request regarding the provision of CVRA rights--
such as a request to be heard at a hearing--the victim can petition the
court of appeals for a writ of mandamus. Thus, if the court of appeals
grants the victim's petition, it may direct the district court to take
actions to afford CVRA rights to the victim. Petitions for writs of
mandamus can be filed at any point in the case. The CVRA requires the
court of appeals to take up and decide petitions for writs of mandamus
within 72 hours after they are filed. A victim may also request to
reopen a plea or sentence, but only if (a) the victim has asserted the
right to be heard before or during the proceeding at issue and such
right was denied; (b) the victim petitions the court of appeals for a
writ of mandamus within 10 days; and (c) in the case of a plea, the
accused has not pled to the highest offense charged. However, the CVRA
states that a failure to afford victims their rights under the law will
not provide grounds for a new trial.[Footnote 26]
Federal Officials Responsible for Implementing the CVRA:
The CVRA requires DOJ officers and employees--which includes
prosecutors, investigative agents, corrections officials, and victim-
witness professionals--to make their best efforts to see that crime
victims are notified of and accorded their rights under the
CVRA,[Footnote 27] and furthermore requires that prosecutors inform
victims of their ability to seek the advice of an attorney.[Footnote
28] The 2005 Attorney General Guidelines on Victim and Witness
Assistance (Attorney General Guidelines) provide guidance for DOJ
employees on how to implement these best efforts. Table 2 lists the DOJ
component agencies responsible for implementing the CVRA by type
(investigative, prosecutorial, and corrections/parole).
Table 2: Department of Justice Component Agencies Responsible for
Implementing the CVRA:
Investigative:
* Federal Bureau of Investigation;
* Drug Enforcement Administration;
* Bureau of Alcohol, Tobacco, Firearms and Explosives;
* U.S. Marshals Service;
* Office of the Inspector General.
Prosecutorial:
* U.S. Attorneys Offices;
* Antitrust Division;
* Civil Division;
* Civil Rights Division;
* Criminal Division;
* Environment and Natural Resources;
* National Security Division;
* Tax Division.
Corrections/Parole:
* Federal Bureau of Prisons;
* U.S. Parole Commission.
Source: DOJ Attorney General Guidelines for Victim and Witness
Assistance and DOJ Strategic Plan 2007-2012 for prosecutorial
divisions.
[End of table]
Investigative and prosecutorial components in DOJ have victim
specialists and victim-witness coordinators who were already in place
prior to the CVRA. Their role is to assist investigative agents,
litigation divisions within DOJ, and prosecutors in dealing with crime
victims so that agents and prosecutors can focus their efforts on
successfully investigating and prosecuting criminal cases.
(Approximately 90 percent of federal crimes are prosecuted by the
USAOs.) As shown in figure 1, according to a report issued by DOJ's
Office of the Inspector General, as of October 2007, the FBI had worked
with more crime victims registered in the Victim Notification System
(51 percent) than any other federal investigative and corrections
agency, either within or outside DOJ, including the U.S. Postal
Inspection Service (27 percent), the U.S. Secret Service (5 percent),
the Internal Revenue Service (4 percent), the Bureau of Prisons (2
percent), the Food and Drug Administration (2 percent), Department of
Labor components (2 percent), and others (7 percent).
Figure 1: Percentage of Crime Victims Registered in the Victim
Notification System by Federal Investigative Agency, as of October
2007. N=1,564,667:
[Refer to PDF for image]
This figure is a pie-chart depicting the following data:
Percentage of Crime Victims Registered in the Victim Notification
System by Federal Investigative Agency, as of October 2007:
FBI: 51%;
USPIS: 27%;
Other: 7%;
Secret Service: 5%;
All Internal Revenue: 4%;
BOP: 2%;
FDA: 2%
All other labor: 2%.
Source: DOJ Office of Inspector General.
[End of figure]
The federal courts, primarily through district court judges, also have
responsibility for ensuring that crime victims are afforded their
rights under the CVRA. In addition, the CVRA requires the
Administrative Office of the U.S. Courts--which provides
administrative, legal, and other support to the federal judiciary--to
annually report to Congress instances in which CVRA rights were
asserted in a criminal case and the court denied the victim's request
for relief, as well as the results of petitions for writs of mandamus
that were brought before the court.
Authorization of Funding to Support CVRA Implementation:
The CVRA authorized appropriations for fiscal years 2005, 2006, 2007,
2008, and 2009. Funds that may have been appropriated under the CVRA
were likely appropriated in a lump sum with funds for other victim
assistance and grant programs, making it unclear exactly how much was
appropriated for CVRA-specific purposes. The authorized amounts, years,
and purposes are listed in table 3.
Table 3: Funding Authorized by the CVRA:
Purpose: For U.S. Attorneys Offices for Victim-Witness Assistance
Programs;
Amount and fiscal years: $2 million for 2005, $5 million annually for
2006-2009.
Purpose: For the Office for Victims of Crime for enhancement of the
Victim Notification System;
Amount and fiscal years: $2 million for 2005, $5 million annually for
2006-2009.
Purpose: For the Office for Victims of Crime for staff to administer
the appropriation for the support of organizations that provide legal
counsel to federal crime victims;
Amount and fiscal years: $300,000 for 2005 and $500,000 annually for
2006-2009.
Purpose: For the Office for Victims of Crime for the support of
organizations that provide legal counsel to federal crime victims;
Amount and fiscal years: $7 million for 2005 and $11 million annually
for 2006-2009.
Purpose: For the Office for Victims of Crime for the support of
training and technical assistance to states and tribal jurisdictions to
craft state-of-the-art victims' rights laws, and training and technical
assistance to states and tribal jurisdictions to design a variety of
compliance systems, which shall include an evaluation component;
Amount and fiscal years: $5 million for 2005 and $7 million annually
for 2006-2009.
Purpose: For grants to state, tribal, and local prosecutors' offices,
law enforcement agencies, courts, jails, and correctional institutions,
and to qualified public or private entities, to develop and implement
state-of-the-art systems for notifying victims of crime of important
dates and developments relating to the criminal proceedings at issue in
a timely and efficient manner;
Amount and fiscal years: $5 million annually for 2005-2009.
Source: GAO analysis of section 103(b) of the Justice for All Act of
2004.
[End of table]
Multiple Efforts Have Been Made to Implement the CVRA, and DOJ and
Federal Courts Have Taken Actions to Address Various Factors that Have
Presented Challenges for Affording Crime Victims Their Rights:
DOJ and the federal judiciary have made multiple efforts to implement
the CVRA and afford federal crime victims their CVRA rights, including
making revisions to internal guidelines and providing training to
investigative agents, prosecutors, victim-witness staff, and judges.
They have also taken steps to address various factors--namely, the type
of criminal case, the location of victims, the number of victims, the
workload of USAO staff, and the scheduling of court proceedings--that,
in some cases, have made it difficult for DOJ and federal courts to
afford victims their CVRA rights. DOJ has also made efforts to provide
victims their CVRA rights even in circumstances when there are
diverging interests between the prosecution and victims, such as when a
victim who is also a witness wants to observe the entire trial, which
could cause the jury to question the credibility of the victim's
testimony, thus potentially jeopardizing the success of the
prosecution.
DOJ and the Federal Judiciary Have Made Efforts to Implement the CVRA
and Afford Federal Crime Victims Their CVRA Rights:
DOJ has made several efforts to implement the CVRA, including:
* Revision of the Attorney General Guidelines for Victim and Witness
Assistance and Accompanying Materials. DOJ issued these revised
guidelines in May 2005 in response to the enactment of the CVRA in
October 2004. The guidelines summarize victims' rights under the CVRA
and specify which prosecutorial, investigative, and correctional
components within DOJ have responsibilities to enforce the rights. The
guidelines were updated from a previous version to include provisions
for implementing the CVRA, such as directing prosecutors to file
motions in district court requesting the court to fashion "reasonable
procedures" for enforcing victims' rights in cases with large numbers
of victims, such as the right to be reasonably heard at any public
court proceeding. The guidelines also discuss services to be provided
to victims and witnesses, restitution procedures, and guidelines to be
used for certain classes of victims such as children and victims of
domestic or sexual abuse, terrorism, human trafficking, and identity
theft. In addition, an accompanying video was produced and made
available to DOJ employees.
* Enhancement and Expanded Use of the Victim Notification System. The
CVRA affords victims the right to be notified of all public court
proceedings related to their cases. According to EOUSA officials,
before the enactment of the CVRA, DOJ notified victims of up to 58
events related to their cases, whereas now DOJ is responsible for
notifying victims of up to 93 events. Additional events include
competency hearings, post trial hearings, and pretrial motion hearings.
In fiscal years 2005 through 2007, DOJ expended $2,250,320 to enhance
the Victim Notification System to accommodate the additional
notifications required by CVRA.
* CVRA Training. DOJ components have made several efforts to train
employees on CVRA implementation. The FBI, DEA, ATF, and Bureau of
Prisons (BOP) have all issued training materials for employees
concerning the overall provision of victims' rights, as well as
training materials that provide guidance for dealing with victims of
certain types of crimes, such as child abuse or terrorism. According to
a DOJ official, the DEA holds annual mandated training on the victim-
witness program, which includes the CVRA, is developing mandated
electronic training on the CVRA, and is revising the DEA Agents Manual
to include details on the CVRA. The ATF has provided in-person training
to all 25 field divisions, required all special agents to complete a 2-
hour training on the CVRA, and developed an online training course on
the CVRA. EOUSA has held 40 training sessions at the National Advocacy
Center (NAC)[Footnote 29] for prosecutors, victim-witness coordinators,
and other victim-witness personnel from the individual USAOs. EOUSA
staff and victim-witness coordinators also hold regional and local
training for prosecutors, agents, and victim-witness personnel from
other DOJ components. Victim-witness staff hold training sessions for
new Assistant United States Attorneys on office-specific policies for
affording victims their CVRA rights, such as the procedures prosecutors
should use to coordinate with victim-witness professionals to make sure
victims are correctly notified of case events. The Attorney General
Guidelines also require that all employees whose primary
responsibilities include contact with crime victims receive at least 1
hour of training concerning victims' rights within 60 days of assuming
those responsibilities.
The federal judiciary has also made a number of efforts to implement
the CVRA. Specifically, the AOUSC, Judicial Conference, and FJC have
developed guidance and provided training on the statute to the courts.
The Judicial Conference is the national policy-making body of the
federal courts and the FJC is the principal education, training, and
research resource for federal judges. The federal judiciary's efforts
include:
* Memoranda about CVRA Rights and Requirements. AOUSC issued a
memorandum in December 2004 to all judges and clerks in the district
and appellate courts informing them of the enactment of the CVRA. The
memorandum summarized, among other things, victims' rights under the
CVRA, the courts' responsibility to afford victims their rights, the
ability of victims to assert their rights in court, and AOUSC's
requirement to report to Congress instances in which victims asserted
their rights in court and the relief requested was denied. AOUSC issued
two additional memoranda to the courts, in July 2005 and February 2006.
The first was a reminder of AOUSC's reporting requirement under the
CVRA and the second summarized the CVRA's provisions and provided
additional reporting instructions to the courts.
* Revisions to the Benchbook for U.S. District Court Judges
(Benchbook). The purpose of the Benchbook is to provide a practical
guide to help judges with situations they are likely to encounter on
the bench. The guidance in the Benchbook is recommended but not
required. According to the judges we interviewed, it is primarily used
by newer judges. The September 2007 edition of the Benchbook was
revised to incorporate victims' rights under the CVRA. According to FJC
officials, the Benchbook contains 54 references to victims' rights
under the law. Most of the CVRA-related revisions address the victims'
rights to notice and not to be excluded from public court proceedings.
Specifically, the revised Benchbook states at the beginning of
applicable sections that under the CVRA, any victim of the offense has
the right to notice of public court proceedings and to attend that
proceeding. It advises judges to ask the prosecutor if there are any
victims involved in the case and if so, whether the government has
notified them of the proceeding. The Benchbook makes judges aware of
other CVRA rights and issues by, for example:
* advising the court to give any victims present in the courtroom the
opportunity to be reasonably heard in release or detention hearings;
* referencing the victim's right to be reasonably protected from the
accused when considering release or detention pending trial;
* stating that the victim's right to proceedings free from unreasonable
delay may have to be considered when contemplating granting a
continuance--or postponement--of proceedings; and:
* noting that it is unclear whether the CVRA would apply to hearings
regarding revocation of probation or supervised release, and any
subsequent sentencing hearings.
* CVRA Discussions in Judicial Workshops and Orientations. According to
FJC officials, the CVRA was discussed in orientations for newly
appointed district court judges. In addition, officials stated that 90-
minute CVRA breakout sessions were held at the National Workshops for
Magistrate Judges[Footnote 30] in April and July 2008, which featured a
panel discussion on the CVRA and relevant case law. The Director of the
FJC Education Division also stated that a 2-hour CVRA session was held
at the National Sentencing Policy Institute in June 2008.[Footnote 31]
* CVRA Guidance Document. The FJC prepared a guidance document entitled
"The Crime Victims' Rights Act and the Federal Courts" in October 2005,
which provides an overview of the CVRA, highlights issues that may
arise in implementing the act, and summarizes CVRA-related cases. The
guidance was updated in March 2008 and June 2008. According to FJC
officials, it was distributed at orientation sessions for newly
appointed district and magistrate judges, national workshops for
district and magistrate judges, and other judicial education programs.
The guidance document can also be accessed on the FJC Web site.
According to officials, the guidance will be updated in January 2009 to
coincide with and highlight the new criminal rules of procedure
implementing the CVRA that are mentioned later in this section. They
stated that the FJC will continue to distribute the document at
appropriate educational programs as part of its ongoing efforts to
educate new judges and magistrate judges and to keep the judiciary
informed of developments in the law relating to the CVRA.
* CVRA Training Video. The FJC produced a 22-minute CVRA educational
video entitled "The Rights of Crime Victims in Federal Courts." The
video contains an overview of the act and interviews with judges and a
U.S. Attorney regarding their responsibilities under the CVRA and
issues they have encountered, such as in cases with a large number of
victims. The video was broadcast on the Federal Judiciary Television
Network to all federal court houses, as well as court administrative
offices and the U.S. Sentencing Commission. It aired in March 2008 and
was repeated 24 times as of October 23, 2008. According to FJC
officials, the video is also available to judges on the center's
internal Web site.
* Amendments to the Federal Rules of Criminal Procedure. The Federal
Rules of Criminal Procedure govern the conduct of all criminal
proceedings in federal courts. The amendments, which took effect
December 1, 2008, revised five criminal rules and created a new stand-
alone rule to implement the CVRA. For instance, the revisions
incorporate the CVRA's definition of a crime victim, provide that a
victim's address and telephone number should not be automatically
provided to the defendant when an alibi defense is raised, and require
the court to consider the convenience of victims in setting the place
for trial within the district. The new stand-alone rule incorporates
several of the CVRA rights verbatim, such as the rights to
notification, not to be excluded, and to be reasonably heard, as well
as other provisions in the law.
In addition to DOJ and the federal judiciary's overarching efforts to
implement the CVRA, federal investigative agencies, USAO staff, DOJ
litigation divisions, district court judges, and corrections officials
work to afford victims their individual CVRA rights in a number of
ways. Table 4 provides examples of these efforts listed by each of the
eight CVRA rights. The efforts listed are compiled from site visit
interviews and are not a comprehensive list of all efforts made to
implement the CVRA.
Table 4: Examples of Efforts to Afford Federal Crime Victims Their CVRA
Rights that Were Made by Federal Investigative Agencies, U.S. Attorneys
Offices, and Federal Courts GAO Visited during Site Visits:
The right to be protected from the accused:
Federal investigative agencies and USAOs have helped victims secure
their residences by:
* arranging for police patrols near victims' residence;
* helping victims change their locks, and;
* developing a safety plan for the victims;
Federal investigative agencies have coordinated with USAOs to assist
certain victims, such as those who live with the accused, with changing
residences by:
* providing assistance to victims who are also witnesses and are the
subject of a threat or a perceived threat through the Emergency Witness
Assistance Program, which makes funding available to help such victims
cover moving costs, including transportation and a security deposit and
first month's rent for a new apartment; and;
* in some cases, arranging for emergency temporary housing for victims,
including hotels and shelters;
Regarding the courts:
* judges, per the prosecutor's request, have issued protective orders
and no contact orders as a condition for release of the accused;
* courts have designated separate waiting rooms for victims and
defendants;
* victim-witness professionals and federal investigative agents have
accompanied victims to court to help victims feel more comfortable;
and;
* prosecutors have ensured that victims' personal information, such as
phone numbers and addresses, are redacted from publicly available court
documents.
The right to reasonable, accurate, and timely notice of all public
court proceedings, or any parole proceeding, involving the crime or of
any release or escape of the accused:
Federal investigative agencies and USAOs have:
* used various people-search Web sites to obtain updated contact
information for victims, and;
* set up Web sites that include information on the status of the case
and provide victims with contact information for DOJ employees
investigating and prosecuting the case.
DOJ has employed a contractor to enter victim information into VNS in
cases with a large number of victims.
One USAO has an office policy of notifying victims at least 5 days in
advance of a proceeding.
One USAO's victim-witness coordinator sent weekly e-mails to all
prosecutors reminding them about the process for collecting and
forwarding victim information back to her.
A district court clerk has notified the USAO immediately of any changes
in the schedule for court proceedings.
Federal judges have asked prosecutors whether the victims for a case
have been given notice of particular proceedings.
The right not to be excluded from any such public court proceeding,
unless the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if
the victim heard other testimony at that proceeding:
Judges have considered victims' availability when scheduling court
proceedings. USAO and investigative agency staff have made
transportation arrangements for victims to attend court proceedings.
The right to be reasonably heard at any public proceeding in the
district court involving the release, plea, sentencing, or any parole
proceeding:
USAO staff have:
* personally called victims in sensitive cases (e.g., involving murder
or child pornography) to inform them that they can speak at certain
court proceedings, and;
* sent victims a form on which to write and submit a victim impact
statement.
Judges have:
* asked if any victims are present in the courtroom and wish to make a
statement;
* refused to cut off victims when they make statements in court,
regardless of the length of the statement; and;
* closed a segment of a court proceeding so that the victim in a
terrorism case who wished to remain anonymous from the public was still
able to make a statement before the court in person.
The right to confer with the attorney for the government in the case:
A federal investigative agent provided victims with prosecutors' phone
numbers, as appropriate.
USAO staff have:
* consulted with victims regarding proposed plea agreements when
victims have expressed an interest in learning more about the case or
if there is concern that the victim may disapprove of some concessions
being made to the defendant and;
* for a violent crime case, met with victims in their home after each
court proceeding, to discuss what transpired at the proceeding and
inform them of what the prosecution planned to submit as evidence for
upcoming proceedings, particularly if the evidence was potentially
disturbing for the victim.
A federal judge required prosecutors to confer with the victims
regarding any plea agreements that were reached.
The right to full and timely restitution as provided in law:
Investigative agents and USAO victim-witness professionals have
obtained information on victims' losses and input that information into
a spreadsheet, which they then provided to the prosecutor and the
court.
Courts have held evidentiary hearings to determine an appropriate
restitution amount in circumstances where calculating restitution may
be complex.
The right to proceedings free from unreasonable delay:
In cases where the defendant has filed for several continuances (or
delays in proceedings), USAO staff have met with victims who become
frustrated with the delays to explain the rationale for why they are
occurring.
The right to be treated with fairness and with respect for the victim's
dignity and privacy:
Investigative agents and USAO staff have:
* ensured that victim contact information is protected and not released
to the public;
* redacted (or removed) victim contact information in documents sent to
defense counsel, and;
* used initials for victims in place of their full names in court
filings.
Judges have ensured that victim contact information is not revealed in
court.
Source: GAO analysis of information obtained from DOJ, USPIS, and
federal court officials during site visits.
[End of table]
DOJ and Federal Courts Are Addressing Challenges in Affording Victims
Certain CVRA Rights and Ensuring CVRA Rights Are Afforded Amidst
Diverging Interests:
In some cases, several factors--specifically, the number of victims,
the location of victims, the workload of USAO staff, and the scheduling
of court proceedings--have made it difficult for DOJ and federal courts
to afford federal crime victims their rights to be notified of, not to
be excluded from, and to be heard at court proceedings. While most of
these factors are inherent to the criminal justice system and generally
are not within DOJ's or the court's control, DOJ and federal courts
have made efforts to overcome the challenges that these factors have
presented. In addition, DOJ has made efforts to ensure that crime
victims are afforded their rights even when the interests of the
prosecution and victim diverge. Many of the efforts have only recently
been implemented; therefore, it is too soon to evaluate how effective
these efforts have been at addressing CVRA implementation challenges.
Challenges Providing Notice in Large-Victim Cases:
Staff at USAOs we met with found it challenging to afford victims their
notification right in cases where there were large numbers of victims,
such as corporate fraud and identity theft cases which can involve
thousands of victims.[Footnote 32] However, DOJ has taken a number of
actions to address the challenges associated with such cases. The
Attorney General Guidelines allow for victim-witness professionals to
send each victim in the case one notification letter, which instructs
the victim, from that point forward, to access VNS by phone or on the
Internet to obtain updates on future court proceedings or the status of
their case. To further address the challenge of reaching a large number
of victims, USAOs have used various media outlets in an attempt to
notify victims; used teleconferencing when courtrooms prove too small;
and encouraged victims to submit written victim impact statements, or
asked that large classes of victims choose a smaller number of victims
to speak on everyone's behalf.
Challenges Providing Notice Due to the Victim's Location:
Staff at the USAOs and investigative agency field offices we visited
reported challenges in affording victims who live on Indian
reservations their rights because such victims may not have access to a
mailbox, telephone, or the Internet.[Footnote 33] To address this
issue, USAO or investigative agency staff may drive (sometimes for
several hours each way) to the reservation to personally inform victims
about upcoming proceedings related to their cases. Additionally, staff
at USAOs and investigative agency offices we spoke with stated that it
is difficult to afford victims who do not live in the United States
their rights to be notified of and to participate in court proceedings.
FBI noted that some foreign governments place restrictions on victims'
receipt of mail from the United States government. To address this
challenge, federal prosecutors and investigative agents coordinate with
FBI Legal Attachés, DOJ's Office of International Affairs, and State
Department officials located in U.S. embassies and consulates to
facilitate notification.[Footnote 34] In addition, federal courts have
used teleconferencing to enable victims who do not reside in the United
States, or who live in the United States but may not be able to travel
to the court, the opportunity to participate in court proceedings
related to their cases.
Challenges Affording Rights Due to Increased Workload of USAO Victim-
Witness Staff:
According to EOUSA officials and victim-witness professionals who
responded to our survey, enactment of the CVRA led DOJ to a 60 percent
increase in the number of possible notifications a victim could receive
regarding his or her case. USAO victim-witness staff reported
experiencing:
* additional work hours--an average of 6 per week--in order to comply
with CVRA requirements, specifically those related to notification;
[Footnote 35]
* an increased workload due to additional clerical duties related to
notification;
* a great increase in the percentage of time spent preparing and
sending notifications to victims and tracking down victims' contact
information;
* a great increase in the percentage of time spent responding to
victims' questions or concerns about the case; and:
* a moderate or great increase in the percentage of time spent
providing other types of assistance included in our survey, such as
referring victims for services and accompanying victims to court
proceedings, since the CVRA's enactment.
DOJ has taken steps to alleviate the workload of victim-witness
professionals. First, EOUSA developed a Memorandum of Understanding
with AOUSC to link the courts' Case Management/Electronic Case Filing
system (CM/ECF) with VNS,[Footnote 36] thus eliminating the need to
manually transfer schedule information from one system to another.
[Footnote 37] As of August 2008, EOUSA and AOUSC were conducting pilots
in two judicial districts to test the link between VNS and CM/ECF. The
final decision as to whether to utilize the linked systems will be up
to individual courts. Second, EOUSA made funds available to 41 of the
93 USAOs to hire a contractor to assist with notification
responsibilities. The funds were awarded based on the average number of
cases and victims per victim-witness personnel, as well as the total
number of approved VNS notifications. Based on our analysis of the
districts that received funds, we determined that resources went to 20
of the USAOs with the highest ratio of cases per victim-witness
personnel, 16 of the USAOs with a ratio that fell within the middle
range, and 5 of the USAOs with the lowest ratio.[Footnote 38]
Challenges Providing Notification and Participation Rights to Victims
Due to Scheduling of Proceedings:
The short period of time over which pretrial proceedings (such as
arraignments and detention hearings[Footnote 39]) are scheduled and
take place, along with unexpected changes in the schedule of court
proceedings in general, make it difficult to provide timely notice to
victims and afford them their rights to participate in proceedings.
According to the investigative agents, USAO staff, and one magistrate
judge with whom we met, a detention hearing typically takes place
within a few days of an arrest (as generally required by federal law),
and in certain situations, can occur within hours of an arrest. In
addition, as shown in figure 2, victim-witness professionals who
responded to our survey also identified challenges in providing victims
timely notice of pretrial hearings, particularly detention and plea
hearings.
Figure 2: Extent to which Factors Often or Very Often Hindered Victim-
Witness Professionals' Ability to Send Timely Notice to Victims of
Pretrial Proceedings:
[Refer to PDF for image]
This figure is a multiple horizontal bar graph depicting the following
data:
Factor that hindered victim-witness professionals from providing timely
notice:
Factor: Victim(s) not identified;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for plea hearings: 15%;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for detention hearings: 34%.
Factor: Incorrect or incomplete contact information;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for plea hearings: 20%;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for detention hearings: 37%.
Factor: Unexpected changes in the date, time, or location of the court
proceedings;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for plea hearings: 38%;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for detention hearings: 51%.
Factor: Short notice of upcoming proceedings;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for plea hearings: 41%;
Percent reported that the factor was ’often“ or ’very often“ a
hindrance for detention hearings: 66%.
Source: GAO analysis of victim-witness professional survey responses.
[End of figure]
We also reviewed all notification letters sent to victims by three
large, three mid-sized, and three small USAOs during the months of
February, March, and April of 2008 to measure the timeliness of
notification efforts.[Footnote 40] The 106 victims who responded to our
survey question regarding timeliness of notifications reported that, on
average, they needed 16 days advance notice to be able to attend a
proceeding. While DOJ provided more than 16 days advance notice of the
proceeding for most of the letters we reviewed, this was not generally
the case for pretrial proceedings. Specifically, the arraignment,
detention, and initial appearance letters we reviewed were typically
not sent in advance of the proceeding. In addition, the plea hearing
letters we reviewed were sent a median of 5.5 days prior to when the
proceeding was scheduled to take place. To address the challenge of
notifying victims of pretrial proceedings in a timely manner, the USAO
staff we met with said they attempt to contact victims by phone to
inform them of when pretrial hearings will take place, as opposed to
contacting victims by mail which may not arrive soon enough.
Prosecutors also may request a delay in detention hearings to provide
additional time for victim notification, and some of the judges with
whom we spoke stated that they may consider the victim's schedule when
setting court proceeding dates.
Challenges in Affording Participation and Notification Rights When
There Are Diverging Interests between the Prosecution and Victims:
According to USAO staff, district judges, and EOUSA officials we spoke
with, it may be in the interest of a successful prosecution that a
victim who intends to testify be excluded from trial, so as not to give
the jury the impression that the victim's testimony was influenced by
the testimony of the other witnesses. The Attorney General Guidelines
state that if the prosecution prefers that the victim not attend the
trial, the prosecutor should consider explaining the reasons to the
victim in an effort to obtain voluntary compliance. In addition, in
order to avoid the perception that a victim's testimony was influenced
by other testimony, prosecutors may change the order in which they call
their witnesses so that the victim testifies first. However, the
prosecutors may still encounter this perception in cases where they
call the victim back to the stand after others have testified.
Also, according to DOJ officials, it is not always in the interests of
a successful prosecution for victims to be notified of and attend a
plea hearing for a cooperating defendant who agrees to testify against
or provide information about other defendants in the case in exchange
for a lesser sentence because public knowledge of the defendant's
cooperation could compromise the prosecutor's efforts in both current
and future cases, as well as bring harm to the defendant and his or her
family and associates. DOJ officials stated that this issue occurs
frequently in gang-related prosecutions, where for instance, the victim
is a member of the defendant's rival gang, but may occur in organized
crime, sexual molestation, and other cases as well. EOUSA officials
stated that some districts currently protect cooperating defendants and
ensure investigation efforts are not hindered by closing proceedings or
postponing the court's acceptance of the plea agreement. However, DOJ
officials stated that closing proceedings may be impractical because
the department's policy requires the express authorization of the
Deputy Attorney General before a prosecutor may seek such closure. In
addition, they stated that federal judges are frequently reluctant to
close proceedings, as there is a general presumption in favor of
keeping court proceedings open to the public. Hence, in DOJ's written
responses to questions following a 2006 congressional hearing on the
implementation of the CVRA, the department proposed that Congress
revise the CVRA to allow for an exception to a victim's right to
notification, such that notice should not be provided to victims if it
"may endanger the safety of any person or compromise an ongoing
investigation."[Footnote 41] Currently, the CVRA only allows for this
exception with regard to notification of release if it endangers the
safety of any person. However, the victim advocates we spoke with
expressed concerns with DOJ's proposed revision to the CVRA.
Specifically, they stated that the language is overly broad and that
exempting DOJ from the CVRA notification requirement in instances where
notification "may" endanger a person or be perceived to compromise an
investigation creates a potentially expansive opt-out provision in the
law. They stated that any policy or revisions to the law need to be
framed much more narrowly to pertain to specific situations and contain
explicit standards, such as "clear and convincing evidence" that an
individual would be endangered. In addition, victim advocates we spoke
with stated that there may be preferable alternatives to revising the
law, such as the methods that DOJ currently employs to protect
cooperating defendants. One victim advocate stated that closing
proceedings is preferable because a request by any party to close
proceedings requires a hearing and therefore allows DOJ to present its
reasons for doing so and opposing parties to raise challenges, if any.
In addition, the advocate stated that the parties' arguments and basis
for the decision would be documented on the court record.
Complaint Process and Victims' Ability to File Motions Are Intended to
Ensure Adherence to CVRA, but Some Victims Are Not Aware of These
Enforcement Mechanisms and the Complaint Process Could Be Restructured
to Ensure Independence:
As directed by the CVRA, DOJ established a designated authority--the
Victims' Rights Ombudsman--to receive and investigate complaints
regarding employee compliance with the CVRA. Few victims have filed
written complaints since the enactment of the CVRA, and the majority of
victims who responded to our survey noted that they were unaware that
the complaint process existed. In addition, the lack of independence in
the structure of the complaint review process compromises the
impartiality of the individuals investigating the complaints, which may
generate bias or give the perception that there is bias in decisions
regarding whether DOJ employees complied with the provisions of the
CVRA pertaining to the treatment of crime victims. Also, inconsistent
with internal VRO guidelines, complaint investigators were not
consistently contacting victims as part of their investigations;
however, the VRO told us that she has made efforts to address this
issue. The other mechanism established by the CVRA to help ensure
victims are afforded their rights--allowing victims to file motions and
petitions for writs of mandamus to assert their rights in court--has
also been used infrequently. Similar to the complaint process, the
majority of victims who responded to our survey were not aware of their
ability to assert their rights in court. In addition, while some
appellate judges with whom we spoke expressed concern with the CVRA's
requirement for petitions for writs of mandamus to be decided within 72
hours, efforts have been made by the courts to meet this requirement.
Finally, AOUSC has reported to Congress information relating to
instances in which CVRA rights were asserted in court and the relief
requested was denied, as required by the law.
Few Victims Have Filed Complaints Regarding Their CVRA Rights, and Many
Victims Who Responded to Our Survey Reported Not Being Aware of Their
Ability to Do So:
Of the more than 750,000 federal crime victims who, as of September
2008, were identified in DOJ's Victim Notification System as having
active cases, the Victims' Rights Ombudsman--DOJ's designated authority
to receive and investigate federal crime victim complaints regarding
employee compliance to the CVRA--received 144 written complaints from
December 2005 to April 2008, 141 of which we reviewed.[Footnote 42] The
VRO closed 130 of these complaints following a preliminary
investigation for a number of reasons, including:
* Statute of limitations: The alleged misconduct occurred prior to the
enactment of the CVRA, or the complaint was not submitted within 60
days of the victim's knowledge of a violation and less than 1 year
after the actual violation.[Footnote 43]
* Jurisdiction: The complaint was filed by a defendant (who is not
afforded rights under the CVRA)[Footnote 44] or against private
citizens, members of the judiciary, or against federal employees
working in agencies other than the Department of Justice (who are not
subject to the CVRA's complaint process). The VRO does not have
authority to recommend training or disciplinary sanctions against these
employees.
* Not a federal crime victim: The complaint was filed by an individual
who was unable to establish that he or she was a "crime victim" in a
federal case, as defined by the Attorney General Guidelines.[Footnote
45] The VRO operates under the Attorney General Guidelines, which
provide that the CVRA applies to victims of a federal offense if the
offense is charged in a federal court.
* State or local offense: The complaint was filed against state or
local law enforcement officials.[Footnote 46]
Figure 3 displays why the 130 crime victims' complaints were closed.
Figure 3: Reasons Why the VRO Closed 130 Complaints:
[Refer to PDF for image]
This figure is a pie-chart depicting the following data:
Reasons Why the VRO Closed 130 Complaints:
State of local matter: 52%;
Not a federal crime victim: 34%;
Jurisdiction: 13%;
Statute of limitations: 1%.
Source: GAO analysis of letters sent by the Victims‘ Rights Ombudsman
regarding closed complaints.
[End of figure]
The VRO determined that the remaining 11 submitted complaints we
reviewed warranted further investigation because they were filed by
federal crime victims, as defined by the Attorney General Guidelines,
submitted in accordance with time frames established by DOJ
regulations,[Footnote 47] and within the VRO's jurisdiction. (See app.
III for a summary of these complaints.) Ten complaints were
investigated by USAO employees located in the same office as the
subjects of the complaints, and 1 was investigated by an employee
within a U.S. Marshals Service field office. Investigators provided the
VRO with the results of their investigations, and the VRO determined
that in no instance did a DOJ employee or office fail to comply with
the provisions of the law pertaining to the treatment of these federal
crime victims. In this report, we will not be making a judgment on the
reasonableness of the VRO's rationale for dismissing these complaints
because we did not conduct an independent investigation of each
complaint.
A number of factors likely contributed to the low number of complaints
filed by federal crime victims against DOJ employees. First, DOJ
officials believe few victims have filed complaints because victims are
generally satisfied with DOJ's efforts to afford them their rights.
Second, USAO officials we spoke with have made efforts to resolve
complaints directly before they reached a point where a victim would
file a formal complaint with the VRO. Third, lack of victim awareness
about the complaint process may also explain why so few federal crime
victims filed complaints. The CVRA does not require DOJ to inform
victims about the complaint process. However, the VRO's internal
guidelines for handling victims' complaints suggest that DOJ components
should be taking reasonable steps to provide notice to victims of the
complaint process through an office Web site or other means likely to
accomplish actual notification to all victims. Officials have taken
actions to inform victims about the complaint process using various
methods:
* During the investigative stage of the case, FBI and DEA officials
told us that they provide victims with brochures that list their eight
CVRA rights and provide information on the complaint process, including
directions for filing a complaint. ATF provides victims with an
informational brochure, but does not include information about the
complaint process.
* EOUSA and the VRO have developed victim brochures in English and
Spanish, which, according to DOJ officials, are mailed to victims after
charges have been filed in a case. The brochure includes information
about each of the eight CVRA rights and directs victims to contact
their local USAO office if they believe a DOJ employee failed to
provide them with one or more of their CVRA rights.
* Other DOJ divisions have created brochures that include information
on how to file a complaint. The Criminal Division provides victims with
a brochure that mentions the complaint process. The Antitrust Division
told us that they e-mail victims, most of whom are organizations and
state and federal agencies, a link to the division's online Victim
Witness Handbook. This handbook provides information to victims on the
complaint process as well as a link to the VRO's Web site. The Bureau
of Prisons and the Civil Division developed pages on their Web sites
explaining Victims' Rights Complaint procedures. The Bureau of Prisons
posted to its Web site the CVRA rights and provided links to complaint
forms for complaints alleging failure of a DOJ employee to provide
rights to a crime victim under the CVRA. The Civil Division provided a
link directly to the VRO Web site. The Tax Division and the
Environmental and Natural Resources Division do not have their own
document to inform victims of their rights under the CVRA, since they
generally do not prosecute cases involving victims who are covered
under this act. If these divisions happen to prosecute a case that
involves victims, they provide victim brochures created by EOUSA, which
mention the complaint process.
* The VRO stated that she has also met with representatives of victim
advocacy groups to exchange ideas on effective programs, and
participated throughout the country in training sessions for victim-
witness coordinators, prosecutors, and agents.
* The VRO has created a Web page that includes downloadable English and
Spanish complaint forms within the EOUSA Web site. The Web page
provides instructions on how and where to file complaints; however the
link to this Web page is not listed in the brochure developed by EOUSA.
While DOJ has several mechanisms in place to inform victims about the
complaint process, these mechanisms may not be achieving actual
notification, given that 129 of the 248 victims who responded to our
survey question regarding the complaint process stated that they were
not aware that they could file a written complaint against a DOJ
employee regarding their rights, and 51 victims could not recall if
they were aware.[Footnote 48]
Victims are required to submit their complaint in writing on a standard
complaint form. According to the VRO, she has worked to ensure that all
USAOs have information about her office on their Web sites, in both
English and Spanish. However, based on our review, as of June 2008, 36
of the 93 USAO Web sites provided a downloadable English version of the
complaint forms, and 21 USAO Web sites provided the Spanish version of
the forms. The VRO noted that victims can also obtain hard copies of
the complaint form from the victim-witness staff or points of contact
located in the USAOs or other DOJ components, as well as from the VRO.
USAO victim-witness personnel, who have the most direct interaction
with victims, are not required to personally inform victims about the
complaint process. According to EOUSA officials, it would be awkward
for victim-witness personnel to inform all victims about the complaint
process. Specifically, these officials stated that victim-witness
personnel are trying to develop a trusting relationship with the
victim, and informing victims about the possibility that DOJ officials
may violate their rights could hinder their relationship. Further,
EOUSA officials noted that it is not feasible for victim-witness
personnel to verbally inform all victims of the complaint process in
large-victim cases. The VRO stated that she primarily relies on victim-
witness personnel in the USAOs to exercise their best judgment about
how and when to inform victims about the complaint process. Of the 174
victim-witness professionals who responded to our survey, 5 percent
reported that they personally inform all victims about the complaint
process. Forty percent of victim-witness personnel stated that they
have personally informed victims about the complaint process only when
victims had raised concerns about the provision of their CVRA rights.
Fifty-seven percent of the victim-witness personnel reported that they
have not personally informed any victims about the complaint process,
primarily because they believe the victims' brochure and Web site are
sufficient.[Footnote 49] However, EOUSA officials stated that they are
uncertain whether all USAOs are providing all victims with the
brochures and, when brochures are provided, they are uncertain whether
victims actually read them.
While DOJ has made efforts to inform victims about the complaint
process, there are opportunities to increase victim awareness--such as
through greater use of Web sites, brochures, and when appropriate,
personal notification. The complaint process generally must be
initiated by victims or their representatives. If victims are not aware
of it, the complaint process becomes an ineffective method for ensuring
that responsible officials are complying with CVRA requirements, and
DOJ will not be able to effectively ensure that corrective actions are
taken against those officials who do not comply with the law.
Lack of Independence among Investigators Could Inhibit DOJ's Ability to
Conduct Impartial Investigations of Victim Complaints:
The characteristics of DOJ's victim complaint investigation process
differ from professional standards of practice--namely, independence
and impartiality--that have been adopted by ombudsman associations and
state victims' rights enforcement offices. The American Bar Association
Standards for the Establishment and Operation of Ombuds Offices state
that a key indicator of independence is whether anyone subject to the
ombudsman's jurisdiction can (1) control or limit the ombudsman's
performance of assigned duties, (2) eliminate the office, (3) remove
the ombudsman for other than cause, or (4) reduce the office's budget
or resources for retaliatory purposes. Similarly, the U.S. Ombudsman
Association advocates that the ombudsman should be appointed by an
entity not subject to the ombudsman's jurisdiction and which does not
have operational or administrative authority over the programs or
agencies that are subject to the ombudsman's jurisdiction. These
standards maintain that independence and impartiality are important
when addressing complaints because they establish confidence that the
process is fair and credible. According to these standards, the VRO--
though located in EOUSA, which provides administrative support and
policy guidance to the U.S. Attorneys Offices--is nevertheless
relatively independent from the DOJ components and offices that are
likely to be the subjects of victims' complaints. However, the
individuals who investigate victim complaints are not independent of
the offices that they may investigate. Specifically, complaint
investigators are typically located in the same offices that they are
responsible for investigating and are thus located in the same offices
with the individuals who are cited in the complaints. In addition, two
of the five complaint investigators we spoke with had investigated
their superiors. Moreover, complaint investigators may be in positions
where they themselves could potentially be the subject of a victim
complaint.
EOUSA officials stated that funding limitations as well as the desire
to resolve complaints locally led to DOJ's decision to allow complaint
investigators to be located in the same office with those whom they are
investigating. According to EOUSA officials, they could only fund one
full-time position to carry out complaint investigation duties.
Further, officials told us that, in their opinion, the VRO's use of
local managers to investigate complaints, as opposed to individuals in
a central office, enables the VRO to resolve the complaint as quickly
as possible for the victim.[Footnote 50] However, the lack of
independence of the complaint investigators raises questions about
their impartiality and hence their ability to conduct credible,
unbiased investigations. For example, according to an official who
investigated 7 of the 11 federal crime victim complaints we reviewed,
he felt awkward investigating his colleagues and found it difficult to
remain objective while conducting the investigation since he has grown
to respect his colleagues' judgment and decision-making capabilities
over the years. However, other complaint investigators, including one
who investigated his superior, did not think the current structure of
the complaint investigation process compromised his impartiality. One
stated that had he identified misconduct and disciplinary action was
warranted for the superior whom he investigated, he would have referred
the issue to the U.S. Attorney. In this investigation, however, the
investigator determined the complaint should be closed after learning,
through discussions with the subject of the complaint, that the
complainant was satisfied.
The VRO told us that for the most part, officials are not put in a
situation where they are called upon to investigate a superior.
However, as stated previously, two of the five individuals who
investigated the federal victim complaints we reviewed investigated
their superiors. Although the VRO stated that DOJ has a process for
addressing conflicts of interest among complaint investigators, the
underlying theme of existing professional ombudsman standards is that
an ombudsman should have both actual and apparent independence from
individuals who may be the subject of a complaint. Therefore, although
actual conflicts of interest among complaint investigators may be
addressed by DOJ's internal procedures, the appearance of a conflict of
interest remains given that investigators are located in the offices
they are responsible for investigating.
While DOJ is not required to comply with ombudsman standards, the
standards can serve as a guideline for implementing the core principles
of an effective ombudsman. In addition, it is common practice among
other entities that investigate external complaints against employees-
-including many of the state victims' rights offices that we reviewed-
-to adhere to the principles of independence and impartiality by, for
example, ensuring that complaint investigators are located in separate
departments or branches of government from those officials they
investigate. For example, DOJ's Office for Professional Responsibility,
which addresses complaints made by external parties against department
employees, does not allow investigators to be located in the same
office with the subject of the complaint.[Footnote 51] However, for
complaints filed by one department employee against another, the Office
of Professional Responsibility allows a supervisor who is located in
the same office with the subject of the complaint to determine the
seriousness of the complaint and whether it should be referred to the
Office of Professional Responsibility for further investigation. State
victims' rights enforcement offices that we reviewed generally do not
use officials who may be located in the same office with the subject of
the complaint to conduct investigations. We reviewed two separate
studies of state victims' rights enforcement offices that are
responsible for addressing victim complaints against state officials.
[Footnote 52] Of the eight offices included in these studies,[Footnote
53] three are structured such that investigators are not located in the
same office with the state officials who are the subjects of the
victims' complaints, whereas officials in three other offices may
receive complaints against colleagues, but there are procedures in
place to prohibit colleagues from actually investigating one another.
These practices generally avoid a conflict of interest between the
investigator and the individual under investigation. Officials in the
other two offices may receive and investigate complaints regarding
their own staff or someone they know. However, in these offices,
complaints are investigated by the head of the state victim enforcement
office.
When asked about the feasibility of having individuals who are not
located in the same office with the subject of the complaint conduct
investigations, EOUSA officials raised two concerns. First, they stated
that DOJ did not make funding available to hire additional staff within
the VRO's office to conduct investigations, thus the need to assign
complaint investigations as a collateral duty for existing DOJ staff.
Second, they stated that it would be difficult to resolve the complaint
quickly to the victim's satisfaction if the investigator were not
located in the same office with the subject of the complaint. Resource
constraints are an important factor in determining an appropriate
structure for the victim complaint review process; however, there may
be low-cost adjustments available to DOJ that could help ensure both
the independence and impartiality of complaint investigators. For
example, it may be possible for DOJ to assign those who currently
investigate complaints to investigate individuals in other offices,
instead of having them review complaints against colleagues and
superiors located in the same office. Also, the CVRA states that the
complaint process is intended to ensure that responsible officials
comply with federal law regarding the treatment of crime victims. Thus,
while it is reasonable for DOJ to seek the victim's satisfaction when
addressing the complaint, it is also important for DOJ to ensure that-
-regardless of the victim's satisfaction--the complaint investigation
process is structured in such a way that any violation of CVRA rights
would be identified. Therefore, based on the ombudsman standards and
the practices of other offices that perform similar functions, it is
important for the structure of the complaint process to ensure the
independence of complaint investigators in order to maintain impartial
investigations, as well as to maintain the appearance of impartiality
during investigations, to not only ensure that they are being fair, but
to also uphold the credibility of the complaint process. If a DOJ
employee has violated a victim's rights, and the complaint
investigation process is biased, then the Victims' Rights Ombudsman
risks not making an informed determination about the complaint.
Further, such a situation would impede the subjects of complaints from
receiving appropriate training or disciplinary sanctions, when
necessary, in order to prevent the violation from occurring again.
Complaint Investigators Had Generally Not Contacted Victims during the
Investigation Process as Required, but the VRO Is Taking Action to
Address this Issue:
DOJ officials who investigated federal crime victim complaints were not
consistently following internal procedures that direct them to speak
with victims during an investigation, which could have affected the
comprehensiveness of their investigation by excluding the victims'
perspectives. However, the VRO is taking steps to address this issue.
From December 2005 to April 2008, three of the four USAO officials who
investigated complaints submitted by federal crime victims did not
speak with the victim during the course of the investigation, as
directed by VRO internal guidelines for handling complaint
investigations. In one instance, the subject of the complaint contacted
the victim to resolve the complaint, and then relayed his discussion
with the victim to the investigator. The investigator recommended to
the VRO that, since the victim was satisfied, the complaint should be
closed prior to completing the investigation to determine whether a
violation occurred. The VRO agreed to close the complaint without
further action and later explained to us that having the subject of the
complaint contact the victim and make efforts to obtain the victim's
satisfaction was preferable to awaiting the completion of the complaint
investigation, which may not have resulted in immediate relief being
given to the victim. However, as stated previously in this report,
while it is reasonable for DOJ to seek the victim's satisfaction, it is
important that the complaint investigation be conducted in such a way
as to ensure that any violation of victims' CVRA rights is identified,
regardless of the victim's satisfaction.
The VRO guidelines direct complaint investigators to contact victims in
an effort to resolve the complaint reasonably and to the victim's
satisfaction. Similarly, 7 of the 8 state victims' rights enforcement
offices whose procedures we reviewed direct investigators to speak with
victims during the course of an investigation. It is also important for
investigators to consistently contact victims so they may provide the
VRO with the information necessary to determine the outcome of the
complaint, especially when the complaint forms do not include narrative
explaining why the victims thought their rights were violated, as was
the case in 3 of the 11 federal victim complaints we reviewed.
Therefore, contacting the victim would have been a reasonable approach
for the investigator to independently obtain this information.
Officials investigating complaints by victims provided reasons for not
contacting victims. For example, one investigator stated that he did
not contact the victim because he could make his determination
regarding the victim's complaint that her right to full and timely
restitution was violated by reading the case file and the restitution
order. After reviewing this information, he determined that no further
information needed to be collected and that no violation had occurred
on the part of the USAO. A second official, who investigated seven
complaints, stated that he would only contact victims if his initial
communications with the subject of the complaint left him uneasy or if
unanswered questions remained about the complaint.
The VRO noted that between April 2008 and September 2008 she received
eight additional complaints submitted by federal crime victims. In
response to our inquiries as to whether complaint investigators were
contacting victims, she asked each of the investigators that they
personally contact the victims upon receipt of the complaint, after
which they may determine, with the victim's consent, that it would be
appropriate for other staff, such as victim-witness personnel or
prosecutors, to speak with the victim to resolve the complaint. The
VRO's continued emphasis on investigators contacting victims as part of
their investigations will help ensure that investigators are collecting
needed information for the VRO to make an informed decision regarding
the complaint.
Few Victims Have Asserted CVRA Rights in Court, and Many Victims Who
Responded to Our Survey Reported Not Being Aware of Their Ability to Do
So:
Among the hundreds of thousands of federal court cases filed in the
U.S. district courts in the nearly 4-year period since the CVRA was
enacted and June 30, 2008, we found 43 instances in which victims, or
victims' attorneys or prosecutors on behalf of victims, asserted CVRA
rights by filing a motion--either verbally or in writing--with the
district court.[Footnote 54] We also found 20 petitions for writs of
mandamus that were filed with the appellate courts, the majority of
which were in response to motions previously denied in the district
court. Table 5 summarizes the number of times CVRA rights were asserted
in the district and appellate courts and how the courts ruled in those
instances. Appendix IV includes summaries of all cases we identified in
which a court issued a decision based on the CVRA.
Table 5: Number of Times CVRA Rights Were Asserted in District Courts
and Courts of Appeals and How the Courts Ruled in Those Instances, as
of June 30, 2008:
Number of motions (written and verbal) filed in district court[A]:
Court ruling: Granted: 11[B];
Court ruling: Denied: 26;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 5;
Court ruling: Total: 43.
Number of motions (written and verbal) filed in district court[A]:
Filed by victim or victim's attorney;
Court ruling: Granted: 3;
Court ruling: Denied: 20;
Court ruling: Granted in part: [Empty];
Court ruling: Decision not based on the CVRA: 2;
Court ruling: Total: 25.
Number of motions (written and verbal) filed in district court[A]:
Filed by prosecutor on victim's behalf;
Court ruling: Granted: 8;
Court ruling: Denied: 6;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 3;
Court ruling: Total: 18.
Number of petitions for writs of mandamus filed in the court of
appeals[C]:
Court ruling: Granted: 1;
Court ruling: Denied: 17;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 1;
Court ruling: Total: 20.
Source: GAO analysis of court cases in which the CVRA was raised.
[A] The number of motions includes four civil claims filed under the
CVRA, one motion filed by the defendant in the case, and instances in
which victims asserted CVRA rights in response to a motion or other
action by another party. Also, three of the motions were filed not in
district courts, but in the District of Columbia Superior Court, the
local trial court for the District of Columbia.
[B] The victims' motion in United States v. Moussaoui was granted by
the U.S. District Court for the Eastern District of Virginia; however,
the government appealed the decision and it was reversed by the U.S.
Court of Appeals for the Fourth Circuit. The victims did not rely on
the CVRA in their arguments at the appellate level.
[C] The number of petitions for writs of mandamus includes eight
petitions that did not arise out of criminal prosecutions in district
courts.
[End of table]
Victim attorneys and federal judicial officials gave several potential
reasons for the low number of victim motions, including victims being
satisfied with how they were treated and victims either being
intimidated by the judicial process or too traumatized by the crime to
assert their rights in court. However, the most frequently cited reason
for the low number of motions was victims' lack of awareness of this
enforcement mechanism. The results from our victim survey provide some
support for this assertion. Of the 236 victims who responded to our
survey question regarding victim motions, 134 reported that they were
not aware of their ability to file a motion to enforce their rights in
district court, and 48 victims did not recall whether they were aware
of it.[Footnote 55] DOJ generally does not inform victims of their
ability to file a motion or petition for a writ of mandamus. This
information is not included in the department's brochures and
notification letters. It is also not included in the vast majority of
USAO Web sites--6 of the 93 USAO Web sites mention this enforcement
mechanism, but typically only when the entire text of the CVRA has been
posted. Furthermore, in our survey of USAO victim-witness
professionals, we asked whether they have personally informed victims
of their ability to file a motion to assert their CVRA rights. In
response, 42 percent reported that they had not informed any victims
and 48 percent reported that they informed only those who raised
concerns. EOUSA officials expressed concerns with the potential for
providing victims with legal advice if USAO staff were to personally
inform victims of their ability to assert CVRA rights in court.
Specifically, officials anticipated that victims would request legal
advice from prosecutors after being informed of this ability. If
questions arise, however, USAO staff could inform victims, as required
by the CVRA, that they can seek the advice of an attorney with respect
to their rights.
While the law does not designate the responsibility to inform victims
of their ability to assert CVRA rights to either DOJ or the courts, it
does assign DOJ most of the other notification responsibilities,
including informing victims of their eight CVRA rights and their
ability to seek the advice of an attorney. Moreover, the Attorney
General Guidelines state that responsible officials should provide
information to victims about their role in the criminal justice
process, which could encompass their ability to assert their rights in
court. DOJ is already required to carry out these responsibilities
without providing legal advice to victims and could do the same when
informing victims of their ability to assert CVRA rights in court. In
contrast to DOJ, it is impractical for the courts to effectively inform
victims of their ability to file motions and petition for writs of
mandamus. The courts currently do not have contact information for all
victims and are not administratively equipped to inform victims of the
CVRA's provisions, in the opinion of Federal Judicial Center officials.
In addition, the courts do not interact with victims as early in the
criminal justice process as DOJ. Judges stated that victims are rarely
present at court proceedings other than sentencing hearings, which
occur toward the end of the criminal justice process. Therefore, DOJ is
in a better position to inform victims of their ability to assert CVRA
rights in court either personally or through the same brochures and
initial notification letters that inform victims of their eight CVRA
rights. Victims cannot independently enforce their rights in court if
they are not aware of their ability to do so. Considering that victims
or their attorneys generally initiate such efforts, lack of awareness
of their ability to file motions and petition for writs of mandamus in
court will reduce the effectiveness of this enforcement mechanism in
ensuring adherence to victims' rights and addressing any violations.
Counsel for Legal Initiatives for EOUSA told us that the absence of a
means to inform victims of their ability to file a motion is a
legitimate concern and it is reasonable for DOJ to make some efforts to
do this.
Some Judges Have Expressed Concerns Regarding the 72-Hour Requirement
for Deciding Mandamus Petitions, but Courts Have Made Efforts to Help
Ensure that the Requirement Is Met:
We spoke with three appellate judges who presided over 4 of the 20
petitions for writ of mandamus that we reviewed (one judge presided
over 2 cases). While all three of the appellate judges expressed
concerns about the CVRA's requirement for petitions for writs of
mandamus to be decided within 72 hours of filing, none indicated that
the courts could not meet it under the present circumstances, in which
only a small number of petitions are filed. In addition, some U.S.
courts of appeals have established rules and procedures to help address
the challenges with meeting the requirement. Nonetheless, all three of
the appellate judges and several victim attorneys we spoke with stated
that meeting the 72-hour requirement is difficult. The judges and
others said that it may not provide enough time to decide on complex
issues, produce well-thought-out opinions, and allow parties to respond
to the petition. Furthermore, federal judiciary officials stated that
the judiciary opposes all such time-limit requirements because, among
other reasons, they can be detrimental to the handling of other vital
matters before the court. Specifically, the requirements give certain
cases priority over others that could be deemed to be of equal or
greater importance, such as death penalty cases. However, the Chief of
the Rules Committee Support Office noted that, to his knowledge,
[Footnote 56] the CVRA's 72-hour requirement has not prevented the
courts from deciding any vital matters to date. Federal judicial
officials stated that concerns regarding the requirement are largely
theoretical at this point in time because of the small number of cases,
but could potentially have negative consequences if the number
increases. One of the three appellate court clerks we spoke with also
made a similar point. AOUSC and FJC officials, as well as one appellate
judge, also stated that it is unclear how to compute time for the 72-
hour requirement. They stated that court deadlines are typically
specified in days and that there is currently no guidance regarding
when the clock starts ticking on the 72-hour requirement, or whether it
applies to business or calendar days. Two of the three appellate judges
and one of the three appellate court clerks we spoke with expressed
concerns about petitions received on Fridays. The clerk stated that it
is challenging to assemble a panel of judges and provide them with the
necessary case documents during the weekend. To help address some of
these concerns, the Judicial Conference Advisory Committee on Appellate
Rules proposed an amendment to the Federal Rules of Appellate
Procedure.[Footnote 57]
We are aware of one case where the court did not meet the 72-hour
requirement.[Footnote 58] The case was heard in the U.S. Court of
Appeals for the Ninth Circuit in 2006 and, according to one of the
judges on the panel that reviewed the petition, the court was not aware
of the requirement at the time. In the case's published decision, the
court discussed its failure to consider the victim's petition for a
writ of mandamus within the CVRA's time limits and apologized to the
victim for the delay.[Footnote 59] As a result of the case, the U.S.
Court of Appeals for the Ninth Circuit enacted a local rule to help
ensure that it complies with the 72-hour requirement in future cases.
The local rule requires the petitioner to clearly label CVRA petitions
for writs of mandamus and to call the clerk's office in advance to
inform them that a petition will be filed. In addition, according to a
judge in the Ninth Circuit, that court treats CVRA petitions for writs
of mandamus as emergency motions, such that a rotating panel of judges
is available to immediately review these petitions. He stated that the
panel also has staff attorneys on hand to do research on the case, if
necessary. U.S. courts of appeals in other circuits have also adopted
similar rules and procedures to help ensure that the courts meet the 72-
hour requirement. For instance, the U.S. Court of Appeals for the
Fourth Circuit enacted a local rule and the U.S. Court of Appeals for
the Third Circuit issued a standing order, both similar to the Ninth
Circuit rule. In addition, according to the Clerk of the Court, the
U.S. Court of Appeals for the District of Columbia Circuit also treats
CVRA petitions for writs of mandamus as emergency motions.
AOUSC Has Reported to Congress Information Relating to Instances in
which CVRA Rights Were Asserted in Court and the Relief Requested Was
Denied, as Required:
The CVRA requires AOUSC to annually report instances in which a CVRA
right was asserted in a criminal case and the relief requested was
denied. AOUSC is required to report both the number of denials and the
reason for the denials. In addition, it is required to report the
number of times a petition for writ of mandamus is filed with the court
of appeals and the result of the petition. To meet this reporting
requirement, AOUSC issued annual memoranda to all judges and clerks in
the district and appellate courts requiring them to submit information
on these instances. The 2004 to 2006 memos directly cite the language
in the CVRA when outlining the reporting requirement. In addition, the
2006 memo required the courts to submit hearing transcripts if CVRA
rights were asserted orally and the denial occurred without a written
order. It also required court clerks to inform AOUSC if there were no
cases to report. AOUSC officials stated that they review the cases
submitted by the courts and call them to discuss if there are any
questions. They added that they also contact the courts if AOUSC does
not receive either a submission or a statement indicating that there
were no cases to report by the deadline specified in its memo.
According to AOUSC officials, the office does not conduct its own
searches to identify cases that potentially may fall under the CVRA's
reporting requirement but were not submitted by the courts. They stated
that the responsibility to identify and submit applicable cases rests
with the individual courts because it would not be feasible for AOUSC
to search through the thousands of criminal cases that are prosecuted
in the courts every year. According to the Judicial Business of the
United States Courts' 2007 Annual Report of the Director, approximately
81,500 criminal cases were filed in the federal district and appellate
courts for that fiscal year. In addition, AOUSC officials stated that
they are dependent on the courts to identify and report unpublished
orders and verbal denials of relief requested under the CVRA that occur
without a written order because these could not necessarily be found
through legal searches. Officials stated that AOUSC also coordinates
with the National Crime Victims Law Institute, which compiles and
summarizes cases that discuss or cite the CVRA, to help ensure that all
reportable cases are identified. According to AOUSC officials, the
NCVLI provides them with a list of cases that it believes should be
included in the annual report to Congress. They added that if AOUSC
discovers a case that potentially should have been submitted but was
not, they would contact the court to discuss it.
A total of 20 cases were included in three AOUSC reports submitted to
Congress for fiscal years 2005 to 2007. In our review of cases that
discussed the CVRA, we identified three denials of victim motions under
the CVRA that were not reported. Whether these cases should have been
reported is not clear because there are different judicial
interpretations of the CVRA language that requires the courts to report
denials of "relief requested." Victims either asserted or invoked CVRA
rights in all 3 of the cases. In the first case, the district court
denied the prosecutor's motion to allow the victim to speak at the
defendant's detention hearing but allowed the victim to submit a
written victim impact statement.[Footnote 60] When asked why this case
was not submitted to AOUSC, a court official stated that the court had
not denied the victim the right to be heard; rather, it had outlined
the manner in which the victim could exercise this right. In the second
case, the district court denied the victims' motion requesting that the
court order DOJ to allow them to enter the United States to attend and
participate in the defendant's sentencing hearing. As an alternative,
the court allowed the victims to submit their views in writing and
participate in the hearing via teleconference.[Footnote 61] When asked
why this case was not submitted, the judge stated that because the
court fashioned an alternative means to accommodate the victim, the
classification of the ruling is uncertain and may be considered to be
denied in part and granted in part. In the third case, the district
court denied the corporate victim's request to appear at a hearing to
respond to the defendant's motion regarding whether the defense should
be allowed to contact and interview the victim's employees.[Footnote
62] When asked why this case was not submitted, a court official stated
that although the victim was not allowed to appear, the victim was not
denied the purpose for which the appearance was sought; that is, the
court stated that the victim could still challenge in court any alleged
contact with a represented employee. One judge, who denied one of the
motions included in the fiscal year 2007 report to Congress, stated
that clarification of the reporting requirement for situations where
the specific relief requested was denied but not the right asserted
under the CVRA would be beneficial. However, AOUSC officials stated
that the 3 cases discussed above involve judicial interpretation of the
statute and as such, determining whether they fall under the CVRA's
reporting requirement would best be delegated to the individual courts.
They added that if it is determined in the future that the courts are
not submitting applicable cases because they are unclear about the
requirement, AOUSC could issue additional guidance to clarify. Based on
our compilation and review of CVRA-related cases, apart from the 3
cases in question, AOUSC has included all cases required under the
statute in their reports to Congress for fiscal years 2005 to 2007.
DOJ Generally Has Not Evaluated Overall Department Performance Related
to Victims' Rights, but Most Component Agencies Have Made Efforts to
Evaluate Their Employees' Adherence with Victims' Rights Requirements:
Although DOJ has a strategic objective in place focused on ensuring
that victims' rights are provided, it has not developed performance
measures to assess progress in meeting this objective. One component
agency has a related performance measure in place; however, the measure
does not demonstrate whether the agency has made progress in achieving
the victims' rights objective. DOJ component agencies have collected
data regarding the provision of victims' rights, but lack of timely and
standard data collection and analysis limits the usefulness of the data
in making meaningful assessments of overall performance. Most of the
DOJ components with victim-related responsibilities have, however,
incorporated references to the adherence to victims' rights into their
employees' work plans and performance appraisals, as required by
internal guidelines.
DOJ Has a Strategic Objective to Uphold Victims' Rights, but Has Not
Developed Performance Measures to Assess Progress in Meeting this
Objective:
The DOJ Strategic Plan for Fiscal Years 2007-2012 includes a strategic
objective to "uphold the rights and improve services to America's crime
victims." Among the strategies listed to achieve that objective is to
"increase participation of victims in the justice process." In
addition, DOJ revised the Attorney General Guidelines for Victim and
Witness Assistance, which includes actions that can be taken by DOJ
component agencies to help ensure that victims are afforded their CVRA
rights. The Government Performance and Results Act of 1993 (GPRA)
requires that federal agencies produce annual performance measures to
assess progress towards the objectives included in their strategic
plans. In addition, standards for internal control in the federal
government state that activities need to be established to monitor
performance measures, and that controls aimed at both organizational
and individual performance need to be implemented.[Footnote 63]
However, DOJ has not identified any agency-wide annual performance
measures to assess progress towards its strategic objective to uphold
victims' rights. DOJ's FY 2008 Performance Budget does include
performance measures related to the funding of victims programs, but
these measures focus primarily on services provided to federal victims-
-such as the ratio of victims who received services funded by the Crime
Victims Fund to the total number of victimizations--but not the
provision of rights.[Footnote 64] There was a general consensus among
the DOJ officials with whom we met that evaluating how effective the
department has been at affording victims their CVRA rights is
difficult, considering that most of the CVRA rights do not lend
themselves to quantitative analysis. However, without performance
measures, DOJ may not be able to effectively gauge its progress in
upholding the rights afforded by the CVRA.
Although performance measures related to victims' rights do not exist
at the department level, one DOJ component--the Office for Justice
Programs (OJP)--has developed goals, objectives, and measures that are
aligned with DOJ's strategic objective regarding victims' rights. While
OJP does not directly carry out law enforcement activities, or have any
direct role in providing victims their rights, DOJ's Strategic Plan
tasks OJP with the responsibility to develop and implement strategies
to increase victim participation.[Footnote 65] In its fiscal year 2007-
2012 strategic plan, OJP includes a strategic goal to "reduce the
impact of crime and hold offenders accountable" and a related strategic
objective to "increase participation of victims in the justice
process." The performance measure OJP identified to assess progress in
achieving that objective is the percent increase in the number of
notifications sent to victims through the Victim Notification System.
According to our analysis of VNS data provided by EOUSA, the total
number of USAO VNS notifications more than doubled from fiscal year
2004, when CVRA was signed into law, through fiscal year 2007--from
more than 2.7 million to nearly 7 million notifications. However, more
victims being notified of additional case events does not necessarily
mean there will be an increase in the number of victims participating
in the criminal justice process, which is OJP's objective.
OJP uses EOUSA notification data as a proxy measure for victim
participation; however, EOUSA has made efforts to collect some data--
although limited--on actual victim attendance at court proceedings.
Specifically, EOUSA requests--but does not require--that when USAO
victim-witness professionals attend a court proceeding, they count the
number of victims in attendance at the proceeding and enter the number
into a spreadsheet. EOUSA then collects this information from victim-
witness staff annually, and presents this information in an annual
compliance report submitted to the Office for Victims of Crime (OVC).
According to EOUSA, during fiscal years 2006 and 2007, the estimated
number of victims nationwide who attended court proceedings along with
victim-witness professionals was 14,000 and 12,000, respectively.
Considering that victim-witness professionals do not consistently track
victim attendance at court proceedings and are only tracking attendance
at court proceedings that they themselves attend, EOUSA data on victim
participation may not be very accurate, and therefore not useful in
measuring progress towards OJP's objective. When asked about
formalizing the tracking of victim participation, EOUSA officials
expressed concern that requiring victim-witness professionals to
systematically gather this information would overburden them,
particularly the ones located in USAOs with heavy caseloads.
DOJ Components Have Collected Data Regarding the Provision of Victims'
Rights, but Lack of Standard and Timely Data Collection and Analysis
Limits DOJ's Ability to Make Meaningful Assessments of Performance:
Similar to EOUSA, as required by the Attorney General Guidelines for
Victim and Witness Assistance, most DOJ components have been collecting
data and submitting annual reports to the Office for Victims of Crime
outlining their compliance with the Attorney General Guidelines'
requirements regarding the provision of rights and services to victims.
However, OVC has not analyzed this information since the CVRA was
implemented. OVC has the statutory responsibility to monitor DOJ
compliance with the Attorney General Guidelines for Victim and Witness
Assistance.[Footnote 66] According to the guidelines, responsible
officials are required to submit an annual compliance report to OVC.
OVC officials said that they have received compliance reports from all
but three DOJ components since the guidelines were revised in 2005 to
incorporate CVRA, but they have not analyzed the data or produced a
report for the Attorney General. Internal control standards state that
information should be made available on a timely basis in order to
allow effective monitoring of activities and allow a prompt reaction.
OVC officials said that they had lacked the resources to analyze and
report the compliance information. However, in August 2008, OVC
officials stated that they had received the necessary funding and were
in the process of producing the first report summarizing DOJ
components' efforts to afford victims' rights and services since the
enactment of the CVRA. These officials expect the report to be issued
by the end of 2008.
In addition to not analyzing and reporting on compliance data in a
timely manner, OVC provides no standard format for compliance reports
submitted by component agencies, thus limiting the usefulness of the
data. In a letter to DOJ components requesting their annual compliance
reports for fiscal year 2007, OVC acknowledged that there is no
standard format. The letter included a list of general recommendations
regarding the information that should be included in the component
agencies' submissions, but components are not required to include them
in their reports. As a result, the compliance reports submitted by the
component agencies have varied content, making the measurement of
overall DOJ compliance with the Attorney General Guidelines difficult.
In its 2003-2004 Best Efforts Report, OVC noted that the variety of
information included in the component agencies' best efforts reports
resulted in a limited ability to compare information across DOJ. For
example, some agencies submitted narrative reports describing
programmatic development and best practices, while other agencies
reported statistical information pertaining to victim notification with
little or no narrative describing the work that was actually done.
However, OVC did not make adjustments to its request for compliance
data despite these concerns because, according to OVC officials, it may
not be useful to collect the same type of information from each
component because components have varying responsibilities related to
crime victims. Although, there are similarities in victim
responsibilities among certain components, such as those that do
primarily investigative work like the FBI, ATF and DEA, which are
responsible, among other things, for the initial identification of
crime victims in a case. There are also similarities among the
prosecutorial components, which are responsible, among other things,
for affording victims the right to reasonably confer with the
prosecutor. Therefore, these components could provide similar data to
OVC regarding their efforts to afford victims their rights. We have
previously reported that agencies should collect sufficiently complete,
accurate, and consistent data in order to document performance and
support decision making at various organizational levels[Footnote 67].
Without standard reporting, OVC cannot analyze compliance information
in such a way that allows for an indication of overall department
compliance.
Not All DOJ Components with Victim-Related Responsibilities Have
Incorporated References to Victims' Rights into Work Plans and
Performance Appraisals for Certain Employees:
The Attorney General Guidelines for Victim and Witness Assistance
require that all components with victim-related responsibilities
incorporate information on adherence with victims' rights requirements
into the work plans and performance appraisals for appropriate
employees. Performance appraisals and work plans are tools that are
used to evaluate actual employee performance on the basis of objective,
job-related criteria. Eight of the 14 relevant DOJ components have
incorporated information on adherence with victims' rights requirements
into the work plans and performance appraisals for all responsible
employees, based on our review of performance appraisal documentation
provided by DOJ.[Footnote 68] The 3 investigative components and the U.
S. Marshals Service (USMS) have not adhered to this requirement for
their employees. EOUSA has adhered to this requirement for all but
supervisory attorneys.
Regarding the investigative components, according to DOJ, DEA, ATF, and
USMS are in the process of incorporating references to adherence with
victims' rights requirements into the investigators' performance
appraisals and work plans. The FBI has not incorporated such references
into its investigative agents' or victim specialists' performance
appraisals and work plans, because, according to the Director of FBI's
Office for Victims Assistance (OVA), this criterion is already included
in the performance appraisals for special agents-in-charge--generally
the highest ranking officials in FBI field offices. Nonetheless, the
Attorney General Guidelines state that adherence with victims' rights
should be incorporated into the work plans and performance appraisals
for appropriate staff. Given that investigative agents are responsible
for identifying federal crime victims, it is reasonable to consider
them "appropriate" staff and hold them accountable for their victim-
related responsibilities. In addition, victim specialists play a key
role in helping to ensure victims receive needed services. According to
FBI officials, the OVA has taken a number of steps to ensure compliance
by victim specialists, including, among other things, revising the
victim specialist position description to incorporate victim-related
requirements and developing Victim Assistance Program and Practice
Standards to require compliance with victims' rights and Attorney
General Guidelines provisions. While these steps are beneficial, they
do not provide criteria to evaluate employee performance with regard to
victims' rights requirements. Without information regarding adherence
to victims' rights in their work plans and performance appraisals, FBI
investigative agents and victim specialists may not be aware of or held
accountable for their CVRA responsibilities.
Both correctional components have incorporated victim-related
responsibilities into the work plans of their staff. The victim-related
responsibilities of officials at the Bureau of Prisons (BOP) and the
U.S. Parole Commission (USPC) are to notify victims of their offender's
status once they have been incarcerated. For BOP, this includes parole
hearings and other decisions related to parole. USPC is responsible for
notifying victims of hearings to determine whether the offender's
supervised release should be revoked. Finally, six of the eight
prosecutorial components within DOJ incorporated references to victim-
related responsibilities in work plans and performance appraisals for
all of their attorneys. The 2 other components--USAOs and the National
Security Division--plan to take steps to do so, according to officials
with whom we spoke. EOUSA has incorporated such references into the
work plans and performance appraisals for all but the Supervisory
Assistant U.S. Attorneys (AUSA). According to the Assistant Director
for EOUSA's Victim-Witness division, the work plans for these attorneys
do not specifically include references to the Attorney General
Guidelines because EOUSA believes Supervisory AUSAs know that adherence
to the guidelines and directives are mandatory, and that they integrate
these requirements into their day-to-day work. However, the Assistant
Director also stated that EOUSA will modify the 2009 work plans for
Supervisory AUSAs whose duties include direct or supervisory victim-
related responsibilities to incorporate performance elements, including
the Attorney General Guidelines. In DOJ's written comments on the draft
report, the department stated that, as long as the USAO complies with
the guidelines' requirement, it is within each office's discretion to
adopt the work plan modifications to the extent that it deems
appropriate. The National Security Division has two units that work
with crime victims--the Counterterrorism Section (CTS) and the Office
of Justice for Victims of Overseas Terrorism (OVT), according to the
Director of OVT. While the work plan for the Chief of CTS contains
references to victim-related responsibilities, those for trial
attorneys in CTS, as well as OVT staff, do not. According to the
Director of OVT, the National Security Division, established in 2006,
is a relatively new organization, and as such, work plans are currently
in the process of being developed and revised. She stated that the
division will incorporate victim-related responsibilities into the work
plans for CTS trial attorneys and OVT staff. See appendix V for the
references to adherence with victims' rights included in the work plans
and performance appraisals of responsible DOJ employees.
Several Key Issues Have Arisen as the Courts Interpret and Apply the
CVRA in Cases, and Judges Have Differing Interpretations Regarding
Whether the Law Applies to the District of Columbia Superior Court:
As courts interpret and apply the CVRA in cases, several key issues
have arisen, including, among other things, whether the CVRA applies to
victims of offenses that have not been charged in court, whether
individuals meet the "direct and proximate harm" definition of a
victim, and what the right to be reasonably heard means. However, some
judges in the District of Columbia Superior Court have differing
interpretations regarding whether the CVRA applies to victims of local
offenses prosecuted in the Superior Court. Without clarification of
this issue, the question of whether the Superior Court has
responsibility to implement the CVRA will remain and judges in the
Superior Court may continue to differ in whether they apply the CVRA in
their cases.
Several Key Issues Have Arisen as Courts Interpret and Apply the CVRA
in Cases:
Several key issues have arisen as courts interpret and apply the CVRA
through federal court decisions, including:
* whether and in what circumstances the CVRA applies to victims of
uncharged offenses,
* whether individuals meet the "direct and proximate harm" definition
of a victim,
* what the right to be reasonably heard means,
* whether victims should have access to presentence reports and other
nonpublic information, and:
* which standard should be used to review petitions for writs of
mandamus.
When new legislation is enacted, the courts typically interpret the
law's provisions and apply the law as cases arise. As rulings on these
cases are issued, the courts build a body of judicial decisions--known
as case law--which helps further develop the law. Federal cases are
often heard before U.S. district courts. The parties in the case can
appeal a U.S. district court decision to the respective U.S. court of
appeals, whose decisions serve as precedent for the district courts
located within its circuit.[Footnote 69] The U.S. Supreme Court may
hear appeals of decisions of the U.S. courts of appeals, and U.S.
Supreme Court decisions serve as precedent for all federal circuits.
The issues discussed below have arisen as cases have come before the
courts, largely via motions and petitions for writs of mandamus under
the CVRA, and the rulings on these issues will likely contribute to the
further development of case law related to the CVRA.
The Courts Are Interpreting the CVRA to Determine Whether It Applies to
Victims of Uncharged Offenses:
The courts have interpreted the CVRA in different ways regarding
whether victims of offenses that have not been charged in court are
entitled to the rights afforded in the law. While some courts have
stated that CVRA rights do not apply unless charges have been filed,
other courts have stated that certain CVRA rights, under particular
circumstances, may apply to victims of offenses that are investigated
but have not been charged in court.
The courts have made determinations about whether CVRA rights apply
based on the circumstances of individual cases and have ruled that the
law applies to victims of offenses that have not been charged in court
in some instances and not in others. According to an FJC official, when
a statute provides new rights, the issue of when they apply commonly
arises and is interpreted by the courts as cases come before them. The
courts have issued rulings regarding the applicability of the CVRA to
victims of uncharged offenses in two general categories: (1) offenses
that have not been investigated and (2) offenses that have been
investigated but not charged.
Applicability of the CVRA to Victims of Uninvestigated Offenses:
In the cases we reviewed where potential victims of uninvestigated
offenses asserted CVRA rights, the courts ruled that the CVRA did not
apply in these instances because either no criminal charges were filed
or the defendant was not convicted. Table 6 provides additional detail
on the court cases we reviewed that address whether the CVRA applies to
potential victims of uninvestigated offenses.
Table 6: Cases that Address Whether the CVRA Applies to Potential
Victims of Uninvestigated Offenses:
Case: Searcy v. Skinner, No. 6:06-1418, 2006 WL 1677177 (D.S.C. June
16, 2006);
Description: A federal inmate sued another inmate under the Racketeer
Influenced and Corrupt Organizations (RICO) Act, arguing that the CVRA
entitled him to petition the court and seek restitution;
Court ruling: The U.S. District Court for the District of South
Carolina ruled that the CVRA does not grant victims any rights against
individuals who have not been convicted of a crime and that the
plaintiff could not use the CVRA to bring an action directly against
the other inmate.
Case: Searcy v. Paletz, No. 6:07-1389, 2007 WL 1875802 (D.S.C. June 27,
2007);
Description: A federal inmate sued another inmate for allegedly
attacking him and hitting him in the throat, claiming that as a victim
under the CVRA, he had not been treated with fairness and respect as
required by the law;
Court ruling: The U.S. District Court for the District of South
Carolina ruled that the plaintiff was not a victim under the CVRA
because the alleged attacker had been neither charged nor convicted.
Case: United States v. Merkosky, No. 1:02-cr-0168, 2008 WL 1744762
(N.D. Ohio Apr. 11, 2008) (order denying motion);
Description: Defendant filed a motion asserting that he was the victim
of several federal offenses committed by the prosecutor and
investigative agent in his closed case;
Court ruling: The U.S. District Court for the Northern District of Ohio
denied the motion, stating that the vast majority of CVRA rights only
have meaning in the context of a criminal prosecution and noting that
other district courts have found that the CVRA does not confer any
rights upon a victim until prosecution has already begun.
Case: United States v. Rubin, 558 F. Supp. 2d 411 (E.D.N.Y. 2008)
(order denying motion in part and granting motion in part);
Description: Defendant was indicted in 2004 for securities fraud.
Victims of a superseding indictment for securities fraud in 2006 filed
a motion asserting that their CVRA rights were denied, both in the
interim between indictments and after the second indictment;
Court ruling: Although this case was investigated and charges were
filed by the government, the U.S. District Court for the Eastern
District of New York addressed the applicability of the CVRA to victims
of uninvestigated offenses, noting in its decision that the CVRA
"cannot be read to include the victims of uncharged crimes that the
government has not even contemplated."
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
Applicability of the CVRA to Victims of Investigated Offenses:
The courts have issued varying rulings regarding whether the CVRA
applies to victims of investigated offenses for which charges have not
been filed. For example, in one case, which involved the right to
restitution for offenses that were not charged, the court stated that
the CVRA does not grant victims any rights against individuals that
have not been convicted.[Footnote 70] In another case--which addressed
the timing of when CVRA rights apply in cases where charges are
eventually filed--the court of appeals, quoting the district court,
stated that "'there are clearly rights under the CVRA that apply before
any prosecution is underway'" and that based on the circumstances of
the case, the prosecution should have conferred with the victims
regarding pre-indictment plea negotiations.[Footnote 71] Table 7
provides additional detail on the cases we reviewed that address
whether the CVRA applies to victims of investigated offenses that have
not been charged.
Table 7: Cases that Address Whether the CVRA Applies to Victims of
Investigated Offenses that Have Not Been Charged:
Case: In re W.R. Huff Asset Management Co., 409 F.3d 555 (2d Cir.
2005);
Description: Victims petitioned for a writ of mandamus to vacate the
settlement agreement in a securities fraud case, which they asserted
violated their right to restitution and to be treated with fairness
under the CVRA;
Court ruling: The U.S. Court of Appeals for the Second Circuit denied
the petition and noted that the settlement agreement involved some
defendants who were not convicted, as well as other individuals who had
not been charged. The court stated that "the CVRA does not grant any
rights against individuals who have not been convicted of a crime," and
does not restrict the government nor the court from "effecting
reasonable settlement or restitution measures against non-convicted
defendants."
Case: United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005)
(order sua sponte);
Description: The defendant was accused of conducting a fraudulent
investment scheme through the mail. No victims sought to assert their
CVRA rights in this case. The magistrate judge issued a decision on his
own initiative (without either the victim or the prosecutor asserting
CVRA rights) and discussed, among other things, the relationship
between victim status and charges filed;
Court ruling: The magistrate judge stated that the courts must decide
whether the CVRA accords rights to persons harmed by uncharged criminal
conduct attributed to the defendant. He stated that the usual methods
of determining the legislative intent of the CVRA produce inconsistent
results. The magistrate judge stated that statements by the law's
sponsors supported an interpretation of the definition that would
include victims of offenses not charged. However, he also stated that
Congress passed the CVRA knowing that similar language in a prior law
related to crime victims had been interpreted not to refer to uncharged
conduct. Despite the ambiguity in the law, the magistrate judge stated
that he will take an inclusive approach and, absent an affirmative
reason to think otherwise, accord any person self-identified as a
victim the rights set forth in the CVRA.
Case: In re Dean, No. 08-20125 (5th Cir. May 7, 2008);
Description: An explosion occurred at the BP refinery in Texas, killing
15 contractor employees and injuring more than 170 others. The victims
petitioned for a writ of mandamus, stating that the prosecution's
exclusion of the victims in reaching a pre-indictment plea agreement
with BP violated their rights to notification, confer with the
prosecutor, and fairness under the CVRA. Victims' petition cites the
law's language stating that CVRA rights shall be asserted in the
district in which the crime occurred if "no prosecution is underway" to
indicate that victims' rights apply prior to charges being filed. The
government disagreed, stating in its responses to the victims' motion
that the CVRA does not give victims an unqualified right to notice
before any charges are filed. The government also stated that, per the
Attorney General Guidelines, the prosecutor's responsibility to confer
with victims begins when charges are filed;
Court ruling: The U.S. Court of Appeals for the Fifth Circuit did not
issue the writ ordering the U.S. District Court for the Southern
District of Texas to not accept the plea agreement. However, in its
decision, the court of appeals, quoting the district court, stated that
"'there are clearly rights under the CVRA that apply before any
prosecution is underway'" and that, based on the circumstances of the
case, the prosecution should have conferred with victims about the plea
negotiation.
Case: United States v. Rubin, 558 F. Supp. 2d 411 (E.D.N.Y. 2008)
(order denying motion in part and granting motion in part);
Description: The defendant was initially indicted in 2004 for
securities fraud. Victims of a superseding indictment for securities
fraud in 2006 filed a motion asserting that their CVRA rights were
denied, both in the interim between indictments and after the second
indictment. The victims argued that their rights under the CVRA should
have been triggered at the moment they were victimized, prior to
charges being filed for the defendant's second indictment in 2006;
Court ruling: Although the U.S. District Court for the Eastern District
of New York found that none of the victims' CVRA rights were violated,
the court discussed in general when CVRA rights applied to the victims.
The court stated that "it can be said" that the victims achieved
covered status under the CVRA when the superseding indictment was filed
and that the right to be protected from the accused cannot have ripened
until the defendant is accused through a complaint, information, or
indictment. However, it also stated that the victims' entitlement to
the law's rights was triggered "no later" than when the indictment was
filed and that the CVRA envisions the possibility of judicial
enforcement of certain rights outside the context of an actual
prosecution.
Case: In re Jane Doe, No. 08-80736 (S.D. Fla. filed July 7, 2008);
Description: The victim filed a petition asserting that her CVRA rights
were violated when the USAO failed to confer with her regarding pre-
indictment plea negotiations that would defer federal prosecution of
sex trafficking of children and other crimes if the defendant entered
guilty pleas to various state charges. The victim also asserted that
the USAO failed to notify her of her CVRA rights, notify her of court
proceedings, and provide information regarding her right to
restitution. In the petition, the victim argued that CVRA rights apply
during the investigation of the crime, before charges are filed. The
government noted in its response that nothing in the CVRA supports the
position that the victim had a right to be consulted before the
government could enter into a non-prosecution agreement that defers
federal prosecution in exchange for state court resolution of criminal
liability;
Court ruling: As of September 12, 2008, the U.S. District Court for the
Southern District of Florida had not issued a ruling on the victim's
petition.
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
In implementing the CVRA, DOJ has also made a determination about when
CVRA rights apply, providing in the Attorney General Guidelines that
CVRA rights do not apply unless charges are filed. The Attorney General
Guidelines use the same definition of crime victim as the CVRA--"a
person directly and proximately harmed as a result of the commission of
a Federal offense or an offense in the District of Columbia"--but with
the addition of "if the offense is charged" in court. DOJ's policy
regarding when CVRA rights apply was based on, among other things, the
department's initial analysis of the law. For instance, according to
informal guidance provided to DOJ Criminal Division officials in 2005
by the Office of Legal Counsel, the identification of a "federal
offense" under the CVRA's definition of a victim occurs when charges
are filed, which requires a sworn written statement of probable cause
to link the defendant with a federal offense. The guidance states that
it is difficult to identify who has been harmed by a federal offense,
as opposed to some other type of conduct, before charges are filed.
Because DOJ requires provision of CVRA rights only to those who are
victims of charged offenses, some individuals identified as victims
during the investigative stage who are later not included as part of
the charged criminal case are not entitled to and may not receive CVRA
rights.[Footnote 72] For example, in a large computer intrusion
initiative in 2007, the FBI identified over one million victims whose
computers had become infected with a virus. DOJ included approximately
40 victims among the charged cases. Officials told us that it would be
impractical to include one million victims in the charges and stated
that, while the department did not provide individual CVRA rights to
those who were not included as victims of the offenses charged, the FBI
and the prosecutors did send notices to the internet service providers
of those individuals, with the understanding that the providers would
notify their customers of the intrusion as appropriate. In addition,
according to DOJ, prosecutors may and often do obtain plea agreements
or sentencing conditions that require defendants to provide restitution
to all victims, whether or not they were part of the charged case.
Also, as discussed earlier in this report, during the investigative
stage, DOJ mandates compliance with the Victims' Rights and Restitution
Act, 42 U.S.C. § 10607, which requires federal officials to, among
other things, identify victims, protect victims, arrange for victims to
receive reasonable protection from suspected offenders, and provide
information about available services for victims. Therefore, even
though DOJ may not afford CVRA rights to victims if charges have not
been filed in their cases, the department may provide certain services
to victims that may serve the same function as some CVRA rights.
Victims' attorneys with whom we spoke expressed concerns about the
impact of DOJ's policy that CVRA rights do not apply unless charges are
filed. They stated that certain CVRA rights should take effect prior to
charges being filed, including, among others, the rights to confer with
the prosecutor and to be treated with fairness and with respect for the
victim's dignity and privacy. In their analysis of the CVRA, the law
applies before charges are filed, based on, among other things, the
statement that "if no prosecution is underway," CVRA rights shall be
asserted in the district court in the district where the crime
occurred.
Victims have also filed complaints with the VRO regarding their CVRA
rights in cases where offenses were investigated but not charged.
Victims are informed of their rights and the complaint process through,
among other things, brochures provided during the investigation of a
case. According to the VRO, however, in instances where an individual
filed a complaint related to a case where charges have not been filed,
she would have to close the complaint because the complainant would not
be considered a victim under the CVRA, based on the Attorney General
Guidelines. For example, in one complaint, the complainant stated that
she had received notice that she was a crime victim under the CVRA and
alleged that she was not afforded multiple CVRA rights. The VRO's
response to the complainant stated that, after careful review, the
complaint was closed without further action because criminal charges
had not been filed in the matter and the complainant had not been
established as a federal crime victim as required by DOJ regulations.
In another complaint in which the VRO made a similar determination, the
complainant responded that the FBI led him to believe that he was a
crime victim under the CVRA during the investigation but the VRO stated
that he was not. Therefore, under DOJ's current policy, individuals who
are informed that they are victims during the investigation of their
case and file complaints regarding the provision of their rights are
not considered crime victims by the VRO if charges have not been filed.
Victims also filed a complaint in June 2008 in which the alleged
violation occurred before charges were eventually filed.[Footnote 73]
This complaint addresses the timing of when CVRA rights apply in such
cases. A copy of the complaint was provided to GAO by one of the
attorneys who filed it on the victims' behalf. In the complaint, the
victims stated that prosecutors failed to notify, confer, and treat
them with fairness prior to reaching a pre-indictment plea agreement in
the case. While the complaint was submitted to the VRO after charges
were filed in the case, the alleged violations pertained to plea
agreement negotiations that occurred before charges were filed. As of
October 2008, the VRO had not made a determination on whether DOJ
employees involved in this case complied with the provisions in the
CVRA pertaining to the treatment of victims.
The courts have ruled that the law applies to victims of uncharged
offenses in some instances and not in others, based on the
circumstances of individual cases, and DOJ's Attorney General
Guidelines state that CVRA rights apply when charges are filed. DOJ
officials and a federal judicial official told us that this issue will
likely be further developed as cases arise in the courts. In a
September 2008 interview, EOUSA officials stated that the department is
reviewing the In re Dean decision in the U.S. Court of Appeals for the
Fifth Circuit--discussed in table 7--and assessing the implications of
the case on the department's policy.[Footnote 74] In its ruling, the
court of appeals, quoting the district court, stated that "'there are
clearly rights under the CVRA that apply before any prosecution is
underway.'" As of September 2008, DOJ could not provide an estimated
date of when the review of its policy would be completed.
The Courts Are Applying the "Direct and Proximate Harm" Definition of a
Victim:
The CVRA defines a crime victim as a person "directly and proximately
harmed" as a result of the commission of a federal offense or an
offense in the District of Columbia. The courts are applying this
definition to determine who qualifies as a victim under the CVRA.
Judges have used such measures as the foreseeability of harm by the
defendant and the strength of the causal link between the crime
committed and the harm inflicted to determine if an individual was
directly and proximately harmed and therefore entitled to rights as a
victim under the CVRA. In three of the four cases we reviewed that
discussed this issue, the courts found that the individuals who filed
motions were not victims under the CVRA. The courts will continue to
address this issue as additional cases arise. Table 8 provides
additional detail on the cases we reviewed that address the CVRA's
"direct and proximate harm" definition of a victim.
Table 8: Cases that Address the CVRA's "Direct and Proximate Harm"
Definition of a Victim:
Case: In re Jane Doe, No. 07-1705 (4th Cir. Aug. 9, 2007);
Description: The defendant pleaded guilty to falsely marketing a
prescription painkiller as "less addictive" than other pain
medications. An individual who considered herself a victim because of
her addiction to the painkiller filed a motion to assert the right to
restitution under the CVRA. After the U.S. District Court for the
Western District of Virginia denied the motion, she petitioned for a
writ of mandamus to order the district court to reopen the defendant's
sentencing and enforce her right to restitution;
Court ruling: The U.S. Court of Appeals for the Fourth Circuit denied
the petition for a writ of mandamus, stating that the individual was
not a victim under the CVRA and Victim Witness and Protection Act
because she could not demonstrate that she was directly and proximately
harmed as a result of the conduct underlying one of the elements of the
offense; that is, the chain of causation between the defendant's
actions and the petitioner's addiction was too attenuated to support
application of restitution law.
Case: In re Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008);
Description: The defendant pleaded guilty to the illegal sale of a hand
gun to a juvenile, who several months after the sale (and after turning
18) used the gun to kill several people at a shopping center. After the
U.S. District Court for the District of Utah denied their motion, the
parents of one of the shooting victims petitioned the court of appeals
to have their daughter recognized as a victim of the gun dealer under
the CVRA so that they could speak at the defendant's sentencing hearing
and seek restitution;
Court ruling: The U.S. Court of Appeals for the Tenth Circuit denied
the parents' petition for a writ of mandamus, ruling that the
petitioners' right to the writ was not clear and indisputable. The
court of appeals found that the U.S. District Court for the District of
Utah was not clearly wrong in determining that the petitioners'
daughter was not "directly and proximately" harmed by the defendant's
illegal firearm sale and therefore not a victim under the CVRA. The
district court had found that the daughter was not a victim of the
offense because the offense and the shooting were "too factually and
temporally attenuated."
Case: United States v. Wood, No. 05-00072 (D. Haw. July 17, 2006)
(order granting motion);
Description: Defendant was found guilty of defrauding a corporation.
The prosecution moved to continue sentencing to allow the victims, who
were previously scheduled to be out of the country, to attend and be
reasonably heard;
Court ruling: The U.S. District Court for the District of Hawaii
granted the motion. It found that although the defendant directly
harmed the corporation, the President and Senior Director of Operations
of the corporation were proximately harmed because they continue to
suffer the effects of the fraud in their personal and business
relationships.
Case: United States v. Sharp, 463 F. Supp. 2d 556 (E.D. Va. 2006)
(order granting motion);
Description: The defendant pleaded guilty of conspiracy to possess
marijuana with the intent to distribute. The girlfriend of one of the
defendant's former customers asserted that her boyfriend abused her
after using marijuana sold by the defendant. She requested to be
recognized as a victim under the CVRA so that she could give a victim
impact statement at the defendant's sentencing hearing, and the
defendant filed a motion requesting that the court exclude her
testimony;
Court ruling: The U.S. District Court for the Eastern District of
Virginia granted the defendant's motion to exclude the testimony of the
purported victim, stating that the nexus between the sale of marijuana
and the woman's abuse was too far removed to confer victim status under
the CVRA.
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
The Courts Are Interpreting the Meaning of the Right to Be Reasonably
Heard:
The CVRA provides victims with the right to be reasonably heard at
public proceedings in the district court involving release, plea,
sentencing, or parole. The courts are interpreting what "to be
reasonably heard" means under the law. The courts held in two cases--
one at the appellate level and one at the district court level--that
the right to be heard means the right to speak.[Footnote 75] The
appellate level case set a precedent for all subsequent cases regarding
this issue in the Ninth Circuit. In a third case at the district court
level, the court held that the right to be heard would be satisfied by
a written statement, based on the circumstances of the case.[Footnote
76] The courts will continue to address this issue as additional cases
arise. Table 9 provides additional detail on the court cases we
reviewed that address the meaning of the right to be reasonably heard.
Table 9: Cases that Address the Meaning of the Right to Be Reasonably
Heard:
Case: Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006);
Description: The defendants--a father and son--swindled numerous
victims out of almost $100 million. One of the victims petitioned for a
writ of mandamus after the U.S. District Court for the Central District
of California refused to allow him to speak at the son's sentencing,
after he had already spoken at the father's. The petitioner sought an
order to reopen the sentence and allow him to speak at the resentencing
hearing;
Court ruling: The U.S. Court of Appeals for the Ninth Circuit granted
the petition, directing the U.S. District Court for the Central
District of California to consider the victim's motion to reopen the
sentence and conduct a new hearing to allow the victim to speak. The
court of appeals ruled that the right to be heard gives victims the
right to speak at sentencing and is not limited to victim impact
statements.
Case: United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005);
Description: At a pretrial detention hearing for two defendants accused
of murder, the prosecutor moved to allow the son of the murder victim
to give an oral statement in court, opposing the release of the
defendants;
Court ruling: The U.S. District Court for the Northern District of
Illinois ruled that the right to be reasonably heard did not mandate an
oral presentation and would be satisfied by a written statement under
the circumstances of the case. The court stated that the victim's
proposed statement was not material to the detention hearing, in that,
among other things, there was no doubt as to the seriousness of the
crime and no claim that the victim's welfare would be endangered if the
defendant were released. The court acknowledged that "reasonable minds"
may differ on the meaning of the right to be reasonably heard.
Case: U.S. v. Degenhardt, 405 F. Supp. 2d 1341 (D. Utah 2005);
Description: In a criminal fraud case, the government advised the court
that several victims wished to speak at the defendant's sentencing
hearing;
Court ruling: The U.S. District Court for the District of Utah granted
the request, stating that the CVRA supersedes the current rules of
criminal procedure, which only give victims of violence or sexual abuse
a right to allocution. The judge stated that the right to be heard
"gives victims the right to speak directly to the judge at sentencing."
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
The Courts Are Determining Whether Victims Should Be Granted Access to
Presentence Reports and Other Nonpublic Case Information:
The courts have issued a number of rulings on victims' requests for
access to presentence reports and other nonpublic case information
under the CVRA. Presentence reports are prepared by probation officers
and used to assist the courts in determining the appropriate sentence
to impose on a defendant convicted of a crime. They contain sentencing
guidelines, victim impact statements, and such potentially confidential
information as the defendant's family history, prior criminal record,
financial status, and medical condition. Victims requested the
information to, among other reasons, verify its accuracy for sentencing
or restitution calculations and enable them to speak knowledgeably when
they exercised their right to be heard.[Footnote 77] Other nonpublic
case information has also been requested under the CVRA. In one case,
for example, individuals asserted that they were victims under the CVRA
and filed a petition for a writ of mandamus to compel the prosecution
to disclose nonpublic information that supported their position.
[Footnote 78]
We reviewed eight cases that addressed the disclosure of presentence
reports and other nonpublic information under the CVRA. In six of these
cases, the court denied the victims' request for information and in one
case, the court did not rule on the victims' request because it
determined the request to be moot. One court issued an opinion on its
own initiative, without either the victim or the prosecutor asserting
CVRA rights, stating that there is nothing in the CVRA that requires
the disclosure of presentence reports in the absence of a request from
the victim. In the rulings denying the victims' motions and petitions,
the courts stated, among other things, that victims do not have a
general right under the CVRA to access these materials and that the
victims failed to demonstrate that their need for the information
outweighed the need for confidentiality. Table 10 summarizes the cases
we reviewed that address the disclosure of presentence reports and
other nonpublic information under the CVRA.
Table 10: Cases that Address the Disclosure of Presentence Reports and
Other Nonpublic Information under the CVRA:
Disclosure of presentence reports:
Case: In re Kenna, 453 F.3d 1136 (9th Cir. 2006);
Description: Disclosure of presentence reports: After the U.S. District
Court for the Central District of California denied the victim's
motion, the victim petitioned for a writ of mandamus to order the
district court to release the presentence report. A brief filed in the
case by the National Crime Victim Law Institute argued that the
victim's rights to be heard, to restitution, and to be treated with
fairness could not be fully enforced without disclosure of the
presentence report;
Court ruling: Disclosure of presentence reports: The U.S. Court of
Appeals for the Ninth Circuit denied the petition, stating that the
U.S. District Court for the Central District of California did not
abuse its discretion or commit legal error when it found that the CVRA
did not confer a general right for crime victims to obtain disclosure
of a defendant's presentence report. In addition, the court of appeals
noted that the district court found that Mr. Kenna did not demonstrate
that his reasons for requesting the presentence report outweighed the
confidentiality of the report.
Case: In re Brock, No. 08-1086 (4th Cir. Jan. 31, 2008);
Description: Disclosure of presentence reports: The victim petitioned
for a writ of mandamus, asserting that he had not been afforded the
rights to be reasonably heard and be treated with fairness because the
U.S. District Court for the District of Maryland did not disclose parts
of the presentence report. The victim stated that, without the report,
he had insufficient knowledge of the issues relevant to sentencing to
meaningfully exercise his right to be reasonably heard;
Court ruling: Disclosure of presentence reports: The U.S. Court of
Appeals for the Fourth Circuit denied the petition, stating that the
U.S. District Court for the District of Maryland did not abridge the
victim's CVRA rights by denying him access to parts of the presentence
report. The court of appeals stated that the victim had sufficient
information to make a victim impact statement without the release of
the presentence report.
Case: United States v. Ingrassia, No. CR-04-0455, 2005 WL 2875220
(E.D.N.Y. 2005) (report and recommendations);
Description: Disclosure of presentence reports: The magistrate judge
issued a report and recommendations that discussed the CVRA. While the
case primarily pertained to victim notification of proceedings, the
judge also discussed the disclosure of presentence reports;
Court ruling: Disclosure of presentence reports: The magistrate judge
stated that there is nothing in the CVRA that requires the disclosure
of presentence reports, at least in the absence of any request from the
victim and an opportunity for a hearing on the issue.
Disclosure of other nonpublic information:
Case: In re Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008);
Description: Disclosure of presentence reports: After the U.S. District
Court for the District of Utah denied their motion, individuals
petitioned the court of appeals for a writ of mandamus to compel the
prosecution to release investigative information--specifically, grand
jury information and discovery files--that supported their position
that they were crime victims under CVRA;
Court ruling: Disclosure of presentence reports: The U.S. Court of
Appeals for the Tenth Circuit held that the U.S. District Court for the
District of Utah did not abuse its discretion when it denied the
request for investigative information. The district court had stated
that granting rights to the prosecution's investigative files to
establish individuals as victims would be a significant right to append
to the CVRA. It had added that it did not want to create a right not
provided in the statute that may have the effect of interfering with
the prosecution of criminal matters. The district court had also stated
that the CVRA does not grant rights to individuals with respect to
grand jury materials and concluded that the petitioners did not
demonstrate that their needs outweigh the interests in maintaining
grand jury secrecy.
Case: United States v. Sacane, No. 3:05-cr-325, 2007 WL 951666 (D.
Conn. Mar. 28, 2007) (order denying motion);
Description: Disclosure of presentence reports: The victims moved for
the U.S. District Court for the District of Connecticut to order the
defendant to provide more detailed financial disclosures in advance of
a restitution hearing. They stated that they needed the information to
enforce their right to full and timely restitution under the CVRA;
Court ruling: Disclosure of presentence reports: The U.S. District
Court for the District of Connecticut denied the motion, holding that
the CVRA did not grant crime victims a right to discover financial
information directly from the defendant. It added that if victims
believe that additional financial disclosures are needed, they could
ask the prosecutor for assistance pursuant to the CVRA.
Case: United States v. Moussaoui, No. 1:01-cr-00455 (E.D. Va. Apr. 7,
2006) (order granting motion);
Description: Disclosure of presentence reports: Several victims
requested access to nonpublic investigative materials provided by the
prosecution to the defendant during discovery in the criminal trial for
use in their pending civil suits;
Court ruling: Disclosure of presentence reports: The U.S. District
Court for the Eastern District of Virginia granted the victims'
request, but the U.S. Court of Appeals for the Fourth Circuit
overturned the decision on other grounds, holding that the district
court did not have the authority to order the disclosure of the
information and noting that CVRA is silent and unconcerned with
victims' rights to file civil claims against their assailants. United
States v. Moussaoui, 483 F.3d 220 (4th Cir. 2007).
Case: United States v. Citgo Petroleum Corp., No. C-06-563 (S.D. Tex.
Aug. 8, 2007) (order denying motion);
Description: Disclosure of presentence reports: The government filed a
motion requesting the U.S. District Court for the Southern District of
Texas to unseal its submission of sentencing information to the U.S.
probation office to, among other reasons, assist the government in
identifying victims of CITGO's criminal conduct;
Court ruling: Disclosure of presentence reports: The U.S. District
Court for the Southern District of Texas denied the motion, stating
that the CVRA does not require disclosure of presentence reports or
other documents of a similar nature. In addition, it found that the
government had not demonstrated a "compelling, particularized need for
the disclosure."
Case: United States v. Rubin, 558 F. Supp. 2d 411 (E.D.N.Y. 2008)
(order denying motion in part and granting motion in part);
Description: Disclosure of presentence reports: Victims filed a motion
requesting the U.S. District Court for the Eastern District of New York
to order the government to provide investigative information (grand
jury records) in order for them to pursue restitution and exercise
their right to be heard;
Court ruling: Disclosure of presentence reports: The U.S. District
Court for the Eastern District of New York stated that the CVRA does
not authorize an "unbridled gallop" to any and all information in the
government's files. It added, however, that conferring with and seeking
information from the prosecution regarding restitution in a criminal
proceeding would appear to be well within the bounds of the statute.
Because the government began to make efforts to provide victims with
the information requested and pledged to continue to do so, the court
stated that the issue of access appeared to be moot and declined to
rule on the motion.
Source: GAO analysis of court cases in which the CVRA was raised.
Note: The function of a grand jury is to review information provided by
the prosecutor to determine whether there is probable cause to indict,
or accuse, the defendant of a crime. The information provided to the
grand jury is generally confidential and not released to the public.
Discovery is the formal process by which the defense and prosecution
exchange information relevant to the criminal investigation and trial
preparation.
[End of table]
The Courts Are Interpreting the CVRA to Determine which Standard Should
Be Used for Reviewing Petitions for Writs of Mandamus:
Typically, when a party appeals a district court decision to a court of
appeals, the court of appeals reviews the district court decision using
what may be called the ordinary appellate standard of review. Under
this standard of review, the court of appeals reviews the district
court decision for a legal error or abuse of discretion. A court would
have committed a legal error if, for example, it applied the incorrect
law or incorrectly interpreted the law. A court would have committed an
abuse of discretion if, for example, it made a discretionary decision
that is arbitrary or with which no reasonable person could agree. In
contrast to an appeal, a petition for a writ of mandamus is a request
that a superior court order a lower court to perform a specified
action, and courts of appeals review these petitions under a standard
of review that is stricter than the ordinary appellate standard of
review. Under the standard traditionally used to review petitions for
writs of mandamus, petitioners must show that they have no other
adequate means to attain the requested relief, that the right to the
issuance of the writ is clear and indisputable, and that the writ is
appropriate under the circumstances. As of July 2008, 4 of the 12
circuits are split on which standard of review should be used to review
petitions for writs of mandamus under the CVRA.[Footnote 79] The U.S.
Courts of Appeals for the Fifth and Tenth Circuits have applied the
traditional writ of mandamus standard, asserting that because the CVRA
uses the term "writ of mandamus," courts should apply the standard of
review traditionally used to decide whether to issue writs of mandamus.
[Footnote 80] The two petitions filed by victims that were reviewed
under this standard were both denied. The U.S. Courts of Appeals for
the Ninth and the Second Circuits have applied the ordinary appellate
standard of review, asserting that because the CVRA provides for
routine appellate review of district court decisions regarding victims'
rights, courts should apply the ordinary appellate standard of review.
[Footnote 81] One petition was granted and another denied under this
standard. These four court of appeals decisions set a precedent for
their respective circuits, in that the same standard would be used to
review all subsequent mandamus petitions in the circuit. Such
conflicting U.S. court of appeals rulings--or circuit splits--are
typically resolved by the Supreme Court. Other circuits have issued
rulings that discussed the appropriate standard of review under the
CVRA but did not apply one of the standards in deciding the case at
hand. Table 11 provides further detail on the cases that address the
standard of review for deciding petitions for writs of mandamus under
the CVRA.
Table 11: Cases that Address the Standard of Review for Deciding
Petitions for Writs of Mandamus under the CVRA:
Cases that applied the ordinary appellate standard of review to decide
petitions for writs of mandamus:
Case: In re W.R. Huff Asset Management Co., 409 F.3d 555 (2d Cir.
2005);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: Victims petitioned
for a writ of mandamus to vacate the settlement agreement in a
securities fraud case, which they asserted violated their right to
restitution and to be treated with fairness under the CVRA;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: Although the U.S.
Court of Appeals for the Second Circuit denied the petition, it stated
that because the CVRA designates a writ of mandamus as a mechanism by
which a victim may appeal a district court's decision denying relief,
petitioners asserting CVRA rights did not need to overcome the "high
hurdles" typically faced by those seeking traditional writs of
mandamus.
Case: Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The defendants--a
father and son--swindled numerous victims out of almost $100 million.
One of the victims petitioned for a writ of mandamus after the U.S.
District Court for the Central District of California refused to allow
him to speak at the son's sentencing, after he had spoken at the
father's. The petitioner sought an order to reopen the sentence and
allow him to speak at the resentencing;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Ninth Circuit stated that the CVRA creates a unique
enforcement mechanism that provides for routine appellate review when
assertions of rights are denied. It added that the court of appeals
must issue a writ whenever it finds that the district court's order
reflects abuse of discretion or legal error under the CVRA without
regard to the balancing of factors designed to ensure that petitions
for writs of mandamus do not become a vehicle for appealing routine
cases before the court has issued a final decision. The court of
appeals granted the petition.
Cases that applied the traditional standard of review to decide
petitions for writs of mandamus:
Case: In re Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The defendant pleaded
guilty to the illegal sale of a handgun to a juvenile, who several
months after the sale (and after turning 18) used the gun to kill
several people at a shopping center. After the U.S. District Court for
the District of Utah denied their motion, the parents of one of the
victims petitioned the court of appeals to have their daughter
recognized as a victim under the CVRA so that they could speak at the
defendant's sentencing hearing and seek restitution;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Tenth Circuit stated that petitions for writs of
mandamus--and the strict standard of review that applies--are the
subject of long-standing judicial precedent, and that Congress was
aware of this when it authorized the term "mandamus," which it used
instead of providing for other forms of appellate review. Accordingly,
mandamus is a "drastic remedy," to be invoked in "extraordinary
situations," and petitioners must show that their right to the writ is
"clear and indisputable." The court denied the petition.
Case: In re Dean, No. 08-20125 (5th Cir. May 7, 2008);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: An explosion occurred
at the BP refinery in Texas, killing 15 contractor employees and
injuring more than 170 others. The victims petitioned for a writ of
mandamus, stating that the prosecution's exclusion of the victims in
reaching a pre-indictment plea agreement with BP violated their rights
to notification, confer with the prosecutor, and fairness under the
CVRA;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Fifth Circuit stated that it was in accord with the
Tenth Circuit in using the stricter standard for deciding petitions for
mandamus for reasons stated in the Tenth Circuit's opinion. The court
denied the petition. In June 2008, the victims' attorneys in the case
requested that the U.S. Supreme Court order a stay, or postponement, of
plea agreement proceedings in the U.S. District Court for the Southern
District of Texas to allow time for the U.S. Supreme Court to resolve
the standard of review issue before the case concluded. The U.S.
Supreme Court denied the request for a stay of proceedings, thereby
allowing the district court to rule on the proposed plea agreement. If
the district court accepts the proposed plea agreement, a subsequent
petition requesting the U.S. Supreme Court resolve the standard of
review issue may not be considered.
Cases in which the standard of review is discussed but not applied in
the court's decision:
Case: In re Jacobsen, No. 05-7086, 2005 U.S. App. LEXIS 13990 (D.C.
Cir. July 8, 2005);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The defendant was
indicted for first-degree murder while armed. The victim's sister
petitioned for a writ of mandamus, alleging that the District of
Columbia Superior Court had denied her CVRA rights by not allowing her
to speak at the defendant's plea hearing before accepting the plea
agreement;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the District of Columbia Circuit stated that even if the
petitioner is entitled to a writ of mandamus under the CVRA using the
less stringent standard of review, which requires showing an abuse of
discretion by the trial court, the petitioner failed to make that
showing. The court ruled that the petition was moot because the
Superior Court judge had not yet accepted the plea agreement.
Case: In re Miller, No. 06-15182 (11th Cir. Sept. 28, 2006);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: A civil plaintiff
petitioned for a writ of mandamus under the CVRA to order the U.S.
District Court for the Middle District of Florida or another entity to
investigate the alleged criminal acts of a communications company and
requested restitution in the amount of $1.3 million. He also stated
that the district court failed to protect him from actions he believes
were unlawful;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Eleventh Circuit stated that mandamus is not a
substitute for appeal and is only appropriate when "no other adequate
means are available to remedy a clear usurpation of power or abuse of
discretion." It added that the petitioner must show that his right to
the issuance of a writ is both "clear and indisputable." The court
stated that it doubts that the CVRA applies to the petitioner, but even
assuming that it does, found that he was not entitled to a writ.
Case: In re Jane Doe, No. 07-1705 (4th Cir. Aug. 9, 2007);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The victim petitioned
for a writ of mandamus to order the U.S. District Court for the Western
District of Virginia to reopen the defendant's sentencing and enforce
her right to restitution for injuries caused by the defendant's
fraudulent marketing of a prescription painkiller;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Fourth Circuit stated that petitions for writs of
mandamus are normally subject to an extraordinarily stringent standard
in order to prevent them from becoming a substitute for appeal, but
that mandamus petitions filed under the CVRA are "not necessarily
subject to this stringent standard of review." It added that the law is
"not clear" on this issue. However, the court stated that it need not
decide the issue at present because the petitioner would not be
entitled to relief even under the lower standard.
Case: In re Walsh, No. 06-4792, 2007 WL 1156999 (3d Cir. Apr. 19,
2007);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The victim petitioned
for a writ of mandamus, asserting that military officers burglarized
his house and attempted to poison him;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Third Circuit stated that "while mandamus relief is
under a different and less demanding standard" under the CVRA, it is
not available to the petitioner because, even under the generous
assumption that he is a crime victim, he applied for relief in the
wrong court.
Case: In re Brock, No. 08-1086 (4th Cir. Jan. 31, 2008);
Description: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The victim petitioned
for a writ of mandamus, asserting that he had not been afforded the
rights to be reasonably heard and be treated with fairness because the
U.S. District Court for the District of Maryland did not disclose parts
of the defendant's presentence report;
Court ruling: Cases that applied the ordinary appellate standard of
review to decide petitions for writs of mandamus: The U.S. Court of
Appeals for the Fourth Circuit discussed the standard of review issue,
stating that it normally would apply an "extremely stringent" standard
of review for mandamus petitions but that the petitioner argued, and at
least two other circuits have agreed, that petitions filed under the
CVRA would function in a manner similar to ordinary appeals. However,
the court stated that it need not decide this issue at present, because
it has concluded that the petitioner is not entitled to relief under
even the more relaxed standard.
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
Judges in the District of Columbia Superior Court Have Differing
Interpretations Regarding Whether the CVRA Applies to Victims of
Offenses Prosecuted in Their Court:
Some judges in the District of Columbia Superior Court have issued
different rulings regarding whether the CVRA applies to victims of
local offenses prosecuted in the D.C. Superior Court.[Footnote 82]
Unlike the 50 states, the District of Columbia does not have autonomy
over its local budget and laws; instead, Congress has ultimate
authority over local governance issues. The CVRA clearly assigns
responsibility to DOJ and the federal courts to implement the law's
provisions for victims of federal offenses. However, the law is not
explicit about whether the Superior Court, which has jurisdiction over
local offenses committed in the District of Columbia, is also
responsible for implementing its provisions and affording victims CVRA
rights. The CVRA's definition of a crime victim includes persons
"directly and proximately harmed as a result of the commission of a
federal offense or an offense in the District of Columbia," which may
be interpreted to mean that the law applies to victims of local
offenses prosecuted in the D.C. Superior Court. However, the CVRA
refers to "district courts" throughout the rest of the statute, which
do not include the D.C. Superior Court. For instance, the law states
that "victims have the right to be heard at any public proceeding in
the district court" and states that "victims' rights—.shall be asserted
in the district court" in which a defendant is being prosecuted for the
crime. According to the General Counsel of the D.C. Superior Court,
some Superior Court judges are applying the CVRA in their courtrooms
while others are not. The former Chief Judge of the D.C. Superior Court
stated that the law's reference to offenses in the District of Columbia
could be interpreted to apply only to those cases where a defendant is
charged with both federal and local offenses in the U.S. District Court
for the District of Columbia. In these cases, local offenses would be
prosecuted in federal district court.[Footnote 83] The District of
Columbia has its own victim's rights statute, enacted in 2001, which
according to the former Chief Judge and EOUSA officials, both the D.C.
Superior Court and USAO implement.[Footnote 84]
We are aware of three instances where victims asserted CVRA rights in
the D.C. Superior Court as of June 30, 2008. In one, the U.S. Court of
Appeals for the District of Columbia Circuit denied the victim's
petition as moot and, as a result, did not rule on whether the CVRA
applies to proceedings in the Superior Court. The Superior Court took
conflicting views on the applicability of the CVRA in the other two
instances. In the first case, the judge denied the victim's request to
be heard regarding the defendant's plea agreement, stating that the
court was not bound by the CVRA provision. However, in another case,
the D.C. Superior Court granted the victim's motion not to be excluded
from proceedings and stated that there is "no dispute that the CVRA
applies to the District of Columbia." Table 12 provides additional
detail on the cases we reviewed that address the applicability of the
CVRA to the D.C. Superior Court.
Table 12: Cases that Address the Applicability of the CVRA to the D.C.
Superior Court:
Case: In re Jacobsen, No. 05-7086, 2005 U.S. App. LEXIS 13990 (D.C.
Cir. July 8, 2005);
Description: The victim's sister petitioned for a writ of mandamus in
the U.S. Court of Appeals for the D.C. Circuit, alleging that the
Superior Court had denied her CVRA rights by not allowing her to speak
at the defendant's plea hearing;
Court ruling: The U.S. Court of Appeals for the District of Columbia
Circuit ruled that the petition was moot because the Superior Court
judge had not yet accepted the plea and, as a result, did not address
the jurisdictional issue of whether the CVRA applies to criminal
proceedings in the D.C. Superior Court.
Case: Transcript of Record, United States v. Mack, No. 2004-FEL-6798
(D.C. Super. Ct. Aug. 30, 2006);
Description: The prosecutor informed the D.C. Superior Court judge that
the victim's family would like to be heard regarding the defendant's
plea agreement. He added that it is his responsibility under the
Attorney General Guidelines to bring this to the attention of the
court;
Court ruling: The D.C. Superior Court judge stated that he was new to
the CVRA. After reviewing the statute, he stated that the court was
"not bound by this particular statutory provision." He added that
hearing the views of the victim's family would not change his ruling on
the plea agreement and that the victim's family would be able to be
heard at sentencing.
Case: Transcript of Record, United States v. Blades, No. 2006CF114741
(D.C. Super. Ct. Mar. 26, 2008);
Description: A victim-witness filed a motion in the D.C. Superior Court
not to be excluded from any trial proceedings, even though she was
testifying;
Court ruling: The D.C. Superior Court judge granted the motion, stating
that there is "no dispute that the CVRA applies to the District of
Columbia."
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
In implementing the CVRA, DOJ provides in the Attorney General
Guidelines that the CVRA applies to victims of local offenses
prosecuted in the D.C. Superior Court and is operating as such. Under
the Attorney General Guidelines, victims of offenses charged "in
Federal district court or the Superior Court of the District of
Columbia" are entitled to CVRA rights.
While the question of CVRA applicability to victims of local offenses
charged in the D.C. Superior Court could potentially be resolved
through the appeals process, both DOJ and the Superior Court would like
Congress to clarify the issue. The General Counsel of the Superior
Court stated that, given the differences in the application of the CVRA
among Superior Court judges, it would be beneficial for Congress to
clarify whether the statute applies to victims of local offenses
prosecuted in the Superior Court. He added that, if the law applies,
Congress should also clarify the appropriate court of appeals in which
victims' petitions for writs of mandamus should be filed.[Footnote 85]
DOJ would like Congress to resolve the question of the applicability of
the CVRA to victims of offenses charged in the D.C. Superior Court as
well, and unlike the Superior Court, has taken a position on the issue.
In July 2005, DOJ proposed legislation to amend the CVRA to make
explicit that the statute covers offenses prosecuted in the D.C.
Superior Court and that petitions for writs of mandamus should be filed
with the D.C. Court of Appeals.[Footnote 86] As of October 23, 2008,
Congress had yet to pass legislation to clarify this issue. In
addition, unlike the other issues related to CVRA implementation that
are being interpreted by DOJ and federal courts, this issue addresses
the question of whether an institution has responsibility to implement
the act. Without clarification on whether CVRA rights apply to victims
of local offenses in the District of Columbia, the question of whether
the Superior Court has responsibility to implement the CVRA will remain
and individual judges in the Superior Court will continue to differ in
whether they apply the CVRA in their cases. As a result, victims may be
told they are entitled to CVRA rights by DOJ but whether they are
afforded these rights in Superior Court proceedings will depend on
which judge is presiding over their case.
Perceptions Vary Regarding Awareness of and Satisfaction with Victims'
Rights and Participation and Treatment of Crime Victims, and the
Potential for Conflicting Interests between Victims and Defendants Is a
Concern:
We asked various participants in the criminal justice system--namely,
victim-witness professionals, prosecutors, defense attorneys, judges,
and crime victim advocates--what constituted effective implementation
of the act and what effects they expect to ensue as a result of CVRA
implementation. In general they responded that CVRA implementation is
effective if victims report being satisfied with the provision of their
rights. They also responded that CVRA implementation should result in
increased awareness of victims' rights among participants in the
criminal justice system, increased participation of crime victims in
court proceedings, and overall improvement in the treatment of crime
victims. Defense attorneys also cautioned that CVRA implementation
could conflict with defendants' interests, such as when victims who are
testifying are able to observe the entire trial and when victims
request access to presentence reports. We made various efforts to
assess the effect and efficacy along the aforementioned factors and
found mixed indications regarding the success of CVRA implementation.
While a majority of federal crime victims who responded to our survey
reported that they were aware of most of their CVRA rights, less than
half reported that they were aware of their right to confer with the
prosecutor. Furthermore, victims who responded to our survey reported
varying levels of satisfaction with the provision of individual CVRA
rights.[Footnote 87] In addition, although general perceptions indicate
that the treatment of crime victims has improved, CVRA implementation
is perceived to have yielded mixed results regarding victims'
participation in court proceedings and to have the potential for
conflicting with defendants' interests.
The Majority of Victims Who Responded to the Survey Reported That They
Were Aware of Each of the CVRA Rights, Except the Right to Confer with
the Prosecutor:
More than half of the victims who responded to survey questions
regarding awareness of CVRA rights reported being aware of each of the
rights, with the exception of the right to confer with the prosecutor.
One hundred sixteen of the 242 victims who responded to the question
regarding the right to confer with the prosecutor reported being aware
of it. The victims were most aware of their right to be treated with
fairness and with respect for their dignity and privacy--190 of the 244
victims who responded to the question regarding this right reported
being aware of it. Figure 4 shows the level of awareness victims
reported for each of the eight CVRA rights.
Figure 4: Awareness of CVRA Rights among Victims Who Responded to the
GAO Survey:
[Refer to PDF for image]
This figure is a multiple vertical bar graph depicting the following
data:
Awareness of CVRA Rights among Victims Who Responded to the GAO Survey:
CVRA Right: Right to Be Protected from the Accused;
Number of victims aware: 167;
Number of victims not aware: 60;
Number of victims not sure: 26.
CVRA Right: Right to Notice of Public Court Proceedings;
Number of victims aware: 170;
Number of victims not aware: 52;
Number of victims not sure: 23.
CVRA Right: Right Not to Be Excluded;
Number of victims aware: 135;
Number of victims not aware: 64;
Number of victims not sure: 45.
CVRA Right: Right to Be Reasonably Heard;
Number of victims aware: 140;
Number of victims not aware: 71;
Number of victims not sure: 32.
CVRA Right: Right to Confer with the Prosecutor;
Number of victims aware: 116;
Number of victims not aware: 86;
Number of victims not sure: 40.
CVRA Right: Right to Restitution;
Number of victims aware: 154;
Number of victims not aware: 61;
Number of victims not sure: 28.
CVRA Right: Right to Proceedings Free from Unreasonable Delay;
Number of victims aware: 134;
Number of victims not aware: 65;
Number of victims not sure: 43.
CVRA Right: Right to Be Treated with Fairness;
Number of victims aware: 190;
Number of victims not aware: 36;
Number of victims not sure: 18.
Source: GAO analysis of federal crime victim survey results.
[End of figure]
The CVRA requires DOJ to make best efforts to inform all federal crime
victims of their CVRA rights. DOJ makes several efforts to do so,
including through a brochure that is provided to victims during the
investigative stage and in the initial letters sent to victims by the
investigative agency and USAO. Most DOJ Web sites also include
information on victims' rights, although 39 of the 93 USAO sites either
did not list victims' rights under the CVRA or listed them incorrectly.
For example, one USAO Web site listed an outdated victims' bill of
rights, and did not include the rights to be reasonably heard and to
proceedings free from unreasonable delay. In addition to informing
victims of their eight CVRA rights in the initial notification letters,
DOJ also reminds victims in the letters notifying them of sentencing
proceedings that they have the right to be heard at the proceeding.
However, DOJ does not remind victims of rights that may be applicable
in the notification letters for other court proceedings. According to
victim advocates with whom we spoke, victims may be experiencing
emotional and physical trauma during the beginning of their cases,
which is when they are generally informed of their CVRA rights. One
victim advocate stated that reminding victims of their rights when they
have the opportunity to exercise them may help to increase awareness.
Despite this, the majority of victims who responded to our survey
reported that they were generally aware of most of their CVRA rights.
Victims Who Responded to the Survey Reported Varying Levels of
Satisfaction with the Provision of Individual CVRA Rights:
One hundred thirty-two of the 169 victims who responded to the survey
question regarding satisfaction with their right to notice of public
court proceedings reported being satisfied with the provision of this
right. In contrast, 72 of the 229 victims who responded to the survey
question regarding satisfaction with the right to confer with the
prosecutor reported being satisfied with the provision of this right.
Survey respondents were most satisfied with the right to reasonable,
accurate, and timely notice of public court proceedings, but reported
the greatest dissatisfaction with the right to full and timely
restitution as provided in law. Of the 232 victims who responded to the
question regarding satisfaction with the right to restitution, 50
reported being very or somewhat dissatisfied. While we did not ask
victims about their level of satisfaction with the provision of the
right not to be excluded from certain public court proceedings, none of
the victims who responded to the survey reported that the judge or
prosecutor told them they were not allowed to attend public proceedings
related to their case. Figure 5 shows the satisfaction of victims who
responded to our survey regarding the provision of seven of the eight
CVRA rights. For each of the seven rights, a greater number of victims
reported being satisfied with their rights than dissatisfied.
Figure 5: Satisfaction with the Provision of CVRA Rights among Victims
Who Responded to the GAO Survey:
[Refer to PDF for image]
This figure is a multiple vertical bar graph depicting the following
data:
Satisfaction with the Provision of CVRA Rights among Victims Who
Responded to the GAO Survey:
CVRA right: Right to Be Protected from the Accused;
Number of victims, Very satisfied or somewhat satisfied: 103;
Number of victims, Very dissatisfied or somewhat dissatisfied: 19;
Number of victims, Neither satisfied nor dissatisfied: 37;
Number of victims, No opinion: 74.
CVRA right: Right to Notice of Public Court Proceedings;
Number of victims, Very satisfied or somewhat satisfied: 132;
Number of victims, Very dissatisfied or somewhat dissatisfied: 12;
Number of victims, Neither satisfied nor dissatisfied: 10;
Number of victims, No opinion: 15.
CVRA right: Right to Be Reasonably Heard;
Number of victims, Very satisfied or somewhat satisfied: 92;
Number of victims, Very dissatisfied or somewhat dissatisfied: 13;
Number of victims, Neither satisfied nor dissatisfied: 25;
Number of victims, No opinion: 50.
CVRA right: Right to Confer with the Prosecutor;
Number of victims, Very satisfied or somewhat satisfied: 72;
Number of victims, Very dissatisfied or somewhat dissatisfied: 34;
Number of victims, Neither satisfied nor dissatisfied: 26;
Number of victims, No opinion: 97.
CVRA right: Right to Restitution;
Number of victims, Very satisfied or somewhat satisfied: 88;
Number of victims, Very dissatisfied or somewhat dissatisfied: 50;
Number of victims, Neither satisfied nor dissatisfied: 31;
Number of victims, No opinion: 63.
CVRA right: Right to Proceedings Free from Unreasonable Delay;
Number of victims, Very satisfied or somewhat satisfied: 89;
Number of victims, Very dissatisfied or somewhat dissatisfied: 28;
Number of victims, Neither satisfied nor dissatisfied: 47;
Number of victims, No opinion: 65.
CVRA right: Right to Be Treated with Fairness;
Number of victims, Very satisfied or somewhat satisfied: 115;
Number of victims, Very dissatisfied or somewhat dissatisfied: 14;
Number of victims, Neither satisfied nor dissatisfied: 35;
Number of victims, No opinion: 67.
Source: GAO analysis of federal crime victim survey results.
[End of figure]
Perceptions Indicate Increased Awareness about Victims' Rights among
USAO staff, Investigative Agents, and Judges:
Perceptions generally indicate that the CVRA has resulted in increased
awareness of victims' rights among USAO staff, investigative agents,
and judges. This is due, in large part, to the education and training
efforts of DOJ and the federal judiciary.
USAO Staff and Investigative Agents' Awareness of Victims' Rights under
the CVRA:
Perceptions generally indicate that the CVRA has resulted in increased
awareness of victims' rights among USAO staff and investigative agents.
For example, 87 percent of the USAO victim-witness professionals who
responded to our survey perceived that the CVRA has increased the
awareness of victims' rights among participants--which includes
prosecutors and investigative agents--in the criminal justice system.
In addition, as noted earlier in the report, prosecutors filed motions
asserting victims' rights under the CVRA in 18 of the 43 instances in
which the law's rights were asserted in district court, which indicates
that they are aware of the law.
As discussed earlier in this report, DOJ has made a number of efforts
to train and provide guidance to its employees on the CVRA, including
revising the Attorney General Guidelines and sending victim-witness
coordinators and investigative agents to CVRA training at the National
Advocacy Center. In our survey, 95 percent of USAO victim-witness
professionals reported that the CVRA-related training or written
guidance provided by DOJ has been at least somewhat useful in helping
to carry out their duties in assisting crime victims. Sixty-nine
percent reported that the training or written guidance was very or
extremely useful. In addition, many of the prosecutors and
investigative agents we contacted stated that they have received
sufficient training on the CVRA.
Judges' Awareness of Victims' Rights under the CVRA:
The perceptions of victim-witness professionals and judicial decisions
in court cases indicate that the CVRA has resulted in increased
awareness of victims' rights among judges as well. In our survey of
USAO victim-witness professionals, we asked how much, if at all,
judges' attentiveness to the rights of federal crime victims has
increased since the enactment of the CVRA. In response, 77 percent
reported at least some increase in judges' attentiveness to victims'
rights and 40 percent reported that judges' attentiveness had greatly
or very greatly increased, based on their perceptions. Furthermore,
judges have issued court opinions based on the CVRA and discussed the
CVRA in decisions on their own initiative, without either the victim or
the prosecutor asserting CVRA rights. As of June 30, 2008, we found 26
cases in which judges issued decisions regarding the CVRA on their own
initiative.
As discussed earlier in this report, the AOUSC, FJC, and Judicial
Conference have made a number of efforts to educate and train judges on
the CVRA, including issuing memoranda on the law, revising the
Benchbook for U.S. District Court Judges, discussing the CVRA in
judicial workshops and orientations, developing a CVRA guidance
document, producing a training video, and proposing amendments to the
Federal Rules of Criminal Procedure. Although judges had varying
opinions on which of the training and education efforts would be most
effective in increasing CVRA awareness, 10 of the 26 district judges
with whom we spoke stated that amendments to the Federal Rules of
Criminal Procedure would be most helpful in increasing awareness of
CVRA rights because, according to some judges, they will be mandatory
for use and judges expect to refer to them on a regular basis. The
amendments took effect on December 1, 2008.
Perceptions Generally Indicate That the Treatment of Federal Crime
Victims Has Improved, but Some Believe It Has Not Changed Very Much
because Victims Have Always Been Treated Well:
Although 69 percent of USAO victim-witness professionals who responded
to our survey reported, based on their perceptions, that victims were
treated reasonably or very well prior to the CVRA, 67 percent of them
also reported that the treatment of crime victims has at least
moderately improved as a result of the CVRA. On the other hand,
officials at 4 of the 9 USAOs and 4 of the 18 investigative agency
field offices we visited, and 7 of the 26 judges with whom we spoke
stated that CVRA has not had an impact on the treatment of crime
victims. Some said that this was because they, and their respective
offices, had been treating victims well prior to the enactment of CVRA,
and others noted that they worked in states that had victims' rights
laws that were similar to the act.
Perceptions Differ Regarding Victim Participation in Court Proceedings:
One hundred forty-one of the 167 victims who responded to our survey
question regarding participation in court proceedings reported that
they did not attend any of the proceedings related to their cases for
which they received notice. The most common reason respondents gave for
not attending hearings was that the location of the court was too far
for them to travel. The second most common reason was that they were
not interested in attending. In addition, 167 of the 180 victims who
responded to questions regarding speaking at proceedings reported that
they did not speak at detention or plea hearings, and 168 of the 182
victims who responded to a related question about speaking at
proceedings reported that they did not speak at sentencing hearings.
The most common reason for this was their lack of interest in doing so.
From the USAO victim-witness professional perspective, 72 percent of
those who responded to our survey believed that the CVRA has resulted
in at least some increase in victim attendance at public court
proceedings related to their cases, with 27 percent reporting that
attendance among victims greatly or very greatly increased. Similarly,
77 percent of victim-witness professionals reported, based on their
perceptions, at least some increase in victims submitting written
statements or speaking at court proceedings, with 37 percent reporting
a great or very great increase.
Defendants' Interests Are Perceived to Potentially Be in Conflict with
Victims' Rights to Participate and to Be Treated Fairly:
The CVRA provides victims, including those who are witnesses, with the
right not to be excluded from public court proceedings, unless the
court, after receiving clear and convincing evidence, determines that
testimony by the victim would be materially altered if the victim heard
other testimony at that proceeding. Federal defenders with whom we
spoke stated that if victim-witnesses are able to observe the entire
trial, their testimony may be influenced by the testimony of other
witnesses, which may increase the likelihood that the defendant will be
found guilty. They expressed concerns that this could potentially
violate the defendant's right to a fair trial. In addition, 5 of the 9
federal defenders as well as 6 of the 19 district judges we met with
said that it would be very difficult, if not impossible, to provide
clear and convincing evidence--in advance of victims delivering their
testimony--that the victims' testimony would be materially altered if
they heard the testimony of others. For instance, one federal defender
stated that such evidence could only be provided after the victim
testified, by comparing statements the victim made during the
investigation to those made during his or her testimony and identifying
inconsistencies related to testimony that the victim observed.
According to one judge, this issue is a clear example of where the CVRA
and traditional criminal law, which is mainly concerned with the rights
of the defendant, may come into conflict. In the two federal cases we
reviewed that addressed this issue, the courts ruled that the defense
did not provide clear and convincing evidence that the victims'
testimony would be materially altered and allowed the victims to
observe trial proceedings.
Federal defenders also expressed concerns regarding victims making
false statements or introducing new evidence when speaking in court
proceedings. They stated that victims are not under oath or subject to
cross examination when speaking at detention, plea, or sentencing
hearings. As a result, any claims the victim makes regarding the
defendant may go unchallenged. In addition, according to one federal
defender, the defense is not notified in advance of victims speaking in
court proceedings and may be caught off guard by victims' statements,
without time to counter claims that may adversely affect the defendant.
Victims have requested access to presentence reports in order to be
treated fairly and fully exercise their right to be heard. However,
victims accessing presentence reports may conflict with defendant
interests because the report may contain confidential information about
the defendant. The Judicial Conference has a long-standing policy that
treats the presentence report as a confidential document. According to
officials, presentence reports routinely include confidential
information related to the defendant's substance abuse treatment,
medical condition, and financial status. While victim advocates have
suggested redacting--or removing--confidential information, both judges
and federal defenders have stated that this would be administratively
burdensome and cannot guarantee that all confidential information would
be omitted from the presentence report provided to the victim.
According to court officials, confidential information about the
defendant is dispersed throughout the presentence report, which is a
lengthy document, and redaction of the information is risky because it
could be inadvertently disclosed to the public. The courts denied
victims' requests for access to presentence reports in all three cases
we reviewed.
Finally, we reviewed three cases in which defendants appealed their
convictions or sentences, claiming that their due process rights were
violated because individuals identified as victims were afforded CVRA
rights in court proceedings. As shown in table 13, the courts denied
the defendants' appeals in all three cases.
Table 13: Cases in which Defendants Appealed Convictions or Sentences
Based on the CVRA:
Case: United States v. Poole, 241 F. App'x 153 (4th Cir. 2007);
Description: The defendant pleaded guilty to possession of a firearm by
a convicted felon after he had removed a police officer's gun from the
holster and struck her on the head. The defendant appealed his
sentence, claiming that the U.S. District Court for the Eastern
District of North Carolina violated the CVRA, as well as his due
process rights, by allowing the police officer, as well as another
involved police officer, to make victim impact statements at
sentencing;
Court ruling: The U.S. Court of Appeals for the Fourth Circuit affirmed
the decision of the U.S. District Court for the Eastern District of
North Carolina, stating that even if the police officers were not
victims under CVRA and the district court had erred in admitting their
statements, the error did not affect defendant's rights because it was
not so unduly prejudicial as to render the defendant's sentence unfair.
Case: United States v. Eberhard, 525 F.3d 175 (2d Cir. 2008);
Description: The defendant appealed his conviction, stating that he
received a longer sentence than he otherwise would have received
because victims spoke at his sentencing, as authorized by the CVRA,
which violated his due process and other rights;
Court ruling: The U.S. Court of Appeals for the Second Circuit affirmed
the decision of the U.S. District Court for the Southern District of
New York, finding that nothing in the plea agreement prevented the
government from presenting victim information at sentencing.
Case: United States v. Edwards, 526 F.3d 747 (11th Cir. 2008);
Description: The defendant appealed his sentence, stating, among other
things, that his due process rights were violated when the U.S.
District Court for the Northern District of Georgia, relying on CVRA,
denied his motion to sequester all witnesses during the case;
Court ruling: The U.S. Court of Appeals for the Eleventh Circuit
affirmed the district court decision, holding that the U.S, District
Court for the Northern District of Georgia had not abused its
discretion and stating that defendants have no constitutional right to
exclude witnesses from courtrooms.
Source: GAO analysis of court cases in which the CVRA was raised.
[End of table]
Conclusions:
DOJ as well as the cosponsors of the act have suggested that the
purpose of the CVRA is to increase victim participation in the criminal
justice process. DOJ and the courts have made multiple efforts to
implement the provisions of the CVRA. In addition, DOJ has taken
actions to overcome challenges that have impeded the provision of
victims' rights. However, our work has shown that if crime victims
believe that their CVRA rights have been violated, they may not be
aware of the mechanisms available for them to enforce their rights--the
complaint process and victims' ability to file motions in court. To
ensure that the victim complaint process and victims' ability to assert
their rights in federal court are effective methods for enforcing
victims' rights, as Congress intended, victims must be made aware of
these mechanisms, particularly considering victims are generally the
initiators of these processes. To maintain victims' confidence in the
complaint investigation process, it is also important that the process
is structured in such a way that ensures that complaint investigators
are independent so that they may remain impartial and does not give the
appearance that the complaint investigation is biased.
DOJ also has opportunities to improve its efforts to monitor progress
toward achieving the objective of upholding the rights of crime victims
as well as components' and the department's adherence to victims'
rights. Without victim-related performance measures, DOJ and its
components with victim-related responsibilities may not be able to
monitor their progress towards the departmental objective of upholding
the rights of crime victims. Also, without requiring DOJ components
that have similar victim-related responsibilities to report the same
type of information regarding compliance with these responsibilities,
it will be difficult to determine how well the department is performing
overall regarding CVRA implementation. In addition, by not
incorporating adherence to victims' rights provisions in the work plans
and performance plans of all DOJ investigative agents and victim
specialists, as required by the Attorney General Guidelines, it will be
difficult for DOJ to hold these employees accountable for their
responsibilities regarding the provision of victims' rights.
While DOJ has several opportunities to strengthen the provision and
enforcement of crime victims' rights, one aspect of CVRA implementation
is challenging for DOJ and the federal judiciary to resolve, and may
best be addressed by Congress. Specifically, this involves removing the
uncertainty as to whether the CVRA applies to victims of local offenses
charged in the District of Columbia Superior Court. If uncertainty
remains, victims will continue to be treated inconsistently within this
court, which could result in confusion and loss of confidence in the
criminal justice system.
Recommendations for Executive Action:
To help ensure that the victim complaint process and victims' ability
to file motions and petitions for writs of mandamus regarding their
rights are effective methods for ensuring adherence with the provisions
of the CVRA, we recommend that the Attorney General direct all
component agencies with victim-related responsibilities to take the
following 2 actions:
* explore opportunities to enhance publicity of the victim complaint
process, such as by requiring all relevant components to incorporate
this information on their Web sites, to help ensure that all victims
are made aware of it; and:
* establish a mechanism for informing all victims of their ability to
assert their CVRA rights by filing motions and petitions for writs of
mandamus, such as by incorporating this information in brochures and
letters sent to victims and on agency Web sites.
To further ensure that the victim complaint process is an effective
method for DOJ to ensure that its employees are adhering to the
provisions of the CVRA, we recommend that the Attorney General take the
following action:
* restructure the process for investigating federal crime victim
complaints in a way that ensures independence and impartiality, for
example, by not allowing individuals who are located in the same office
with the subject of the complaint to conduct the investigation.
To help strengthen DOJ's ability to assess the performance of the
department regarding the provision of victims' rights, we recommend
that the Attorney General take the following action:
* identify performance measures regarding victims' rights that are
aligned with the department's objective to "uphold the rights and
improve services to America's crime victims" and the department's
strategy of increasing victim participation in the criminal justice
process.
To further strengthen DOJ's ability to evaluate the performance of its
component agencies, and that of the department overall, regarding the
provision of victims' rights, we recommend that the Director for the
Office for Victims of Crime take the following action:
* require component agencies with similar victim-related functions to
report the same type of CVRA compliance information, as a means of
monitoring overall department performance.
In addition, as a means of monitoring employee compliance with victims'
rights requirements, we recommend that the Director of the Federal
Bureau of Investigation take the following action:
* incorporate references to adherence to victims' rights provisions in
the work plans and performance appraisals of its investigative agents
and victim specialists, as required by the Attorney General Guidelines
for Victim and Witness Assistance.
Matter for Congressional Consideration:
Due to the differing interpretations among DOJ and some D.C. Superior
Court judges as to whether the CVRA applies to victims whose cases are
prosecuted in D.C. Superior Court, Congress should consider revising
the language of the CVRA to clarify this issue.
Agency Comments and Our Evaluation:
On November 26, 2008, we received written comments on the draft report,
which are reproduced in full in appendix VI. DOJ generally concurred
with our recommendations and stated that the department intends to
convene a working group to consider the extent and manner in which they
are implemented. In addition, both DOJ and AOUSC provided technical
comments, which we incorporated as appropriate.
With regard to our recommendations to explore opportunities to enhance
publicity of the victim complaint process and establish a mechanism for
informing all victims of their ability to assert CVRA in court, DOJ
stated that it agrees that victims should be well-informed of these
mechanisms and intends to take steps to enhance victim awareness of
them. DOJ stated the working group will consider a number of options in
determining which steps are most appropriate, including those mentioned
in the report.
Regarding our recommendation to restructure the process for
investigating federal crime victim complaints in a way that ensures
independence and impartiality, DOJ stated that it recognizes the
benefits of such an investigation process and that the working group,
in consultation with the VRO, will explore several options that will
minimize the risk of actual bias and ameliorate the perception of
partiality, but also raised several points. First, DOJ believes it is
important to design an impartial process without sacrificing speedy
resolution of the complaint. DOJ stressed the importance of addressing
a complaint quickly enough so that a victim whose rights have been
violated may still have time to exercise them. While we acknowledge
that it is reasonable to seek the victim's satisfaction when addressing
a complaint, it is also important for the structure of the complaint
process to ensure the independence of complaint investigators in order
to maintain impartial investigations and uphold the credibility of the
complaint process. Second, DOJ expressed concerns regarding our use of
ombudsman standards as guidelines for improving the VRO's complaint
process. First, they stated that the VRO, despite its name, is not an
ombudsman because its defined functions do not match those of a classic
ombudsman, in that, for example, the VRO does not have authority to
mediate complaints between victims and DOJ employees. However, the
United States Ombudsman Association defines a Governmental Ombudsman as
"an independent, impartial public official with authority and
responsibility to receive, investigate or informally address complaints
about government actions, and, when appropriate, make findings and
recommendations, and publish reports." Likewise, the VRO's role as
defined in the CVRA is to "receive and investigate complaints relating
to the provision or violation of the rights of a crime victim." It has
the authority to address complaints by requiring training or
recommending disciplinary sanctions in some cases for employees who
have failed to comply with the CVRA. GAO continues to maintain,
therefore, that the role of the VRO is largely consistent with the role
of an ombudsman. Nonetheless, because DOJ officials expressed concerns
about using ombudsman standards to assess the VRO's processes, we also
compared the VRO's practices to those of state victims' rights
enforcement offices, which similarly investigate and address victim
complaints, to determine the extent to which they structured their
processes in ways to ensure independence and impartiality. We found
that those we reviewed have generally structured their investigative
processes to help ensure these two standards are met. Third, DOJ stated
that the VRO faces unique resource constraints, such as lack of a staff
of full-time investigators and a budget for investigation-related
travel, when addressing complaints. However, DOJ also stated that the
working group will consider whether initial complaint investigations
can be done effectively using telecommunications technology rather than
in-person interviews. We agree that this could be an efficient
alternative.
DOJ also concurred with our three recommendations relating to assessing
and evaluating the performance of the department and its components.
DOJ stated that department-wide performance measures are important,
despite the difficulty in establishing objective measures. The
department added that the working group will consider a variety of
possibilities for strengthening its department-wide performance
measures, which it also believes will assist OVC in assessing component
compliance with the Attorney General Guidelines. Finally, regarding
incorporating references to adherence to victims' rights into the work
plans of department employees, DOJ stated that the guidelines only
require that such references be included in the workplans of
"appropriate" employees in components with victim-related
responsibilities. GAO considers investigative agents, victim
specialists, and others with victim-related responsibilities
"appropriate" employees and revised the report to further clarify our
position. DOJ stated that after reviewing the draft report, the FBI has
agreed to revisit its position regarding the requirement.
We are sending copies of this report to the appropriate congressional
committees, U.S. Attorney General, Director of the FBI, Director of the
OVC, Director of the AOUSC, Director of the FJC, and Chief Judge of the
D.C. Superior Court. The report also is available at no charge on the
GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-6510 or larencee@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made major contributions
to this report are listed in appendix VII.
Signed by:
Eileen R. Larence:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Sec. 104(b) of the Justice for All Act directs GAO to evaluate the
"effect and efficacy" of the implementation of the Crime Victims'
Rights Act (CVRA) on the treatment of crime victims in the federal
system. The Department of Justice (DOJ), the federal judiciary, and
other federal agencies that handle cases that involve crime victims are
responsible for implementing the CVRA. To address this mandate, we
sought answers to the following questions:
1. What efforts have been made to implement the CVRA, what factors have
affected these implementation efforts, and how have these factors been
addressed?
2. What mechanisms are in place to ensure adherence to the CVRA, and
how well are these mechanisms working?
3. To what extent does DOJ monitor its performance and the performance
of its employees regarding the provision of CVRA rights?
4. What are the key issues that have arisen as courts interpret and
apply the CVRA in cases?
5. What are the perspectives of various participants in the federal
criminal justice system regarding the effect and efficacy of CVRA
implementation?
Scope:
Given the scope of the mandate directed to GAO, our report focuses on
the provision of the eight CVRA rights, mechanisms used to enforce
these rights, and the procedures used by the Department of Justice to
promote compliance of the act. Our report does not review the efforts
taken by the Department of Justice and other agencies to provide
victims with services or the department's use of the Crime Victims
Fund.
We focused our review primarily on CVRA implementation efforts underway
by federal judges and federal prosecutors and victim-witness
professionals within DOJ because these individuals assume most of the
responsibility for ensuring that crime victims are afforded their
rights. We also evaluated the efforts underway by various DOJ
components, particularly the Executive Office for U.S. Attorneys
(EOUSA) and the Office for Victims of Crime (OVC), to ensure that crime
victims are afforded their CVRA rights. Similarly, we assessed efforts
underway by the federal judiciary, specifically the Administrative
Office of the United States Courts (AOUSC), the Federal Judicial Center
(FJC), and the Judicial Conference, to help federal courts ensure that
crime victims are afforded their rights. In addition, we surveyed a
stratified random probability sample from a select population of
federal crime victims to obtain their perspectives on whether they were
aware of and afforded their rights under CVRA. More details on this
survey are provided below. We also obtained perspectives on the impact
of the CVRA from crime victim advocacy groups, federal defenders, and
defendant advocacy groups.
The federal prosecutors included in our review worked primarily in U.S.
Attorneys Offices. Although there are additional criminal litigation
divisions within DOJ (i.e., Civil Rights, Criminal, Tax, Natural
Resources and Environment, and Anti-Trust), the vast majority of
federal criminal cases are prosecuted either jointly or solely by
Assistant U.S. Attorneys. We obtained the perspectives of Assistant
U.S. Attorneys during site visits to select federal judicial districts.
(The districts we visited and the criteria we used to select these
districts are discussed in detail below.)
The victim-witness professionals involved in our review work primarily
in U.S. Attorneys Offices as well as federal investigative agencies.
Even though some of the other DOJ litigation divisions have personnel
assigned to provide assistance to crime victims, our preliminary audit
work revealed that once prosecution is underway, most federal crime
victims are assisted by victim-witness professionals in the U.S.
Attorneys Offices. We obtained perspectives of victim-witness
professionals during site visits to select judicial districts and
additional perspectives of U.S. Attorneys Office victim-witness
professionals through a Web-based survey. Details of this survey are
provided below.
Our review focused only minimally on federal investigative agencies'
efforts to implement the CVRA. Based on our preliminary audit work,
federal investigative agencies have limited responsibilities related to
affording and enforcing CVRA rights. Rather, most of the
responsibilities investigative agencies have related to crime victims
are outlined in other federal statutes.[Footnote 88] We did find that
investigative agencies have assumed primary responsibility for
identifying crime victims and obtaining victim contact information, as
well as some responsibility for informing federal crime victims about
their CVRA rights. Also, DOJ investigative agencies are involved in
investigating victim complaints related to DOJ employee compliance with
CVRA obligations. Our evaluation of the investigative agencies' efforts
was limited to these areas. We included the following federal
investigative agencies in our study: Federal Bureau of Investigation
(FBI), Drug Enforcement Agency (DEA), and the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) within DOJ and the U.S. Postal
Inspection Service (USPIS) within the U.S. Postal Service. We selected
these agencies either because they were within DOJ, which has primary
responsibility for implementing the CVRA, or because, according to the
DOJ Inspector General, as of October 2007, they investigated cases that
involved the greatest number of victims listed in DOJ's Victim
Notification System (VNS). We excluded one DOJ investigative agency--
the U.S. Marshals Service--because, based on our preliminary audit
work, this agency generally does not interact with, or have any direct
responsibilities related to, crime victims. According to the DOJ
Inspector General, as of October 2007 the U.S. Secret Service had
investigated cases that involved the third largest number of victims
listed in VNS. However, we excluded this agency from our review because
Secret Service officials informed us that it would be difficult to
arrange meetings with their agents given that their agents were often
deployed to provide security for events associated with the 2008
presidential election.
DOJ's corrections agency--Bureau of Prisons (BOP)--also had limited
involvement in our study. We obtained information on BOP's CVRA efforts
related to notifying crime victims of public court proceedings during
the post-sentencing phase of a case, as well as notifying victims of
the escape or release of the incarcerated offender.
Finally, the U.S. Parole Commission had limited involvement in our
review. Parole was abolished for federal crimes committed on or after
November 1, 1987, and for crimes committed in violation of the D.C.
Code on or after August 5, 2000. However, the Parole Commission is
still responsible for granting or denying parole to federal and D.C.
code offenders who committed crimes before these respective dates. The
CVRA grants crime victims the right to be notified of and to be heard
at parole proceedings. We obtained information on the Parole
Commission's efforts to afford these rights in the limited number of
parole proceedings that take place. The commission also determines the
conditions of supervised release for D.C. Code offenders, as opposed to
federal judges who make this determination for federal offenders. We
also obtained information on the Parole Commission's efforts to notify
victims of proceedings regarding the violation or revocation of the
terms of supervised release for a D.C. Code Offender.
Methodology:
Our approach for evaluating the effect and efficacy of the
implementation of the Crime Victims' Rights Act on the treatment of
crime victims was comprised of various evaluation methods. Three of
these methods--survey of federal crime victims, survey of U.S.
Attorneys Office victim-witness professionals, and site visits--are
extensive and warrant more detailed discussion than the others. We
conducted this performance audit from May 2007 to December 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Survey of Federal Crime Victims:
To evaluate the effect and efficacy of CVRA implementation efforts, we
determined that it was important to obtain the perspectives of federal
crime victims. We reached an agreement with EOUSA officials on a
systematic method for obtaining federal crime victims' perspectives
without compromising victims' privacy and anonymity. We conducted a
mail survey of a stratified random probability sample of federal crime
victims, including individuals as well as businesses, who were listed
in DOJ's Victim Notification System (VNS) and whose cases became active
(i.e., charges were filed) on or after January 1, 2006, and closed
(i.e., there was an acquittal or the sentencing decision was made) no
later than November 30, 2007. We selected this time frame because the
DOJ guidance and regulations for implementing the CVRA--the Attorney
General Guidelines for Victim and Witness Assistance and procedures for
addressing victim complaints against DOJ employees--were effective as
of December 19, 2005. The case-closed date was selected because we drew
our sample of crime victims in February 2008 and wanted to offer DOJ
officials sufficient time to update the Victim Notification System
database (from which we drew our sample) for cases closed by the end of
November 2007.
We decided to survey only those victims whose cases were closed in
order to obtain victims' perspectives over the duration of the criminal
justice process, though perhaps excluding the post-sentencing phase. In
addition, we decided to exclude certain crime victims from our survey
(i.e. minors and victims who requested not to be contacted by DOJ about
their cases). We excluded minors due to the sensitivities surrounding
the types of crimes for which they were most likely victims--child
pornography and human trafficking.
We selected our sample of federal crime victims from information DOJ
provided to us from its Victim Notification System, which is used to
notify crime victims of proceedings related to their cases. DOJ agreed
to provide us with an extract of VNS data so that we could draw our own
survey sample. However, given DOJ's concerns about maintaining the
privacy and anonymity of the crime victims, with the exception of a
unique identifying number for each victim and the classification of the
type of crime involved, the data we received were devoid of any
information that would identify individual victims. The universe of
federal crime victims listed in VNS whose cases were open on or after
January 1, 2006, and closed on or before November 30, 2007, and from
which we drew our sample, was 118,013. Twenty-two different types of
crime were associated with these victims. To assure that victims of all
crime types were included in our sample, we selected a stratified
random probability sample, where the strata--or groups--were based on
the type of crime. The number of victims in our sample, by type of
crime, is provided in table 14.
Table 14: Number of Crime Victims Listed in VNS Whose Cases Were Opened
and Closed between January 1, 2006, and November 30, 2007, by Type of
Crime:
Type of crime: Antitrust violations;
Total number of victims listed in VNS: 1;
Number of victims in GAO sample: 1.
Type of crime: Assimilated crimes[A];
Total number of victims listed in VNS: 158;
Number of victims in GAO sample: 5.
Type of crime: Bank robbery;
Total number of victims listed in VNS: 4,186;
Number of victims in GAO sample: 42.
Type of crime: Civil rights prosecution;
Total number of victims listed in VNS: 170;
Number of victims in GAO sample: 5.
Type of crime: Crimes against government property;
Total number of victims listed in VNS: 34;
Number of victims in GAO sample: 5.
Type of crime: Domestic violence;
Total number of victims listed in VNS: 52;
Number of victims in GAO sample: 5.
Type of crime: Firearms/triggerlock;
Total number of victims listed in VNS: 1,183;
Number of victims in GAO sample: 5.
Type of crime: Fugitive crimes;
Total number of victims listed in VNS: 95;
Number of victims in GAO sample: 5.
Type of crime: Government regulatory offenses;
Total number of victims listed in VNS: 10,157;
Number of victims in GAO sample: 99.
Type of crime: Immigration;
Total number of victims listed in VNS: 980;
Number of victims in GAO sample: 5.
Type of crime: Indian offenses;
Total number of victims listed in VNS: 232;
Number of victims in GAO sample: 5.
Type of crime: Interstate theft;
Total number of victims listed in VNS: 328;
Number of victims in GAO sample: 5.
Type of crime: Labor management offense;
Total number of victims listed in VNS: 534;
Number of victims in GAO sample: 5.
Type of crime: Motor vehicle theft;
Total number of victims listed in VNS: 223;
Number of victims in GAO sample: 5.
Type of crime: Narcotics and dangerous drugs;
Total number of victims listed in VNS: 72;
Number of victims in GAO sample: 5.
Type of crime: Offenses involving the administration of justice;
Total number of victims listed in VNS: 36;
Number of victims in GAO sample: 5.
Type of crime: Pornography/obscenity;
Total number of victims listed in VNS: 153;
Number of victims in GAO sample: 5.
Type of crime: Postal service crimes;
Total number of victims listed in VNS: 20,230;
Number of victims in GAO sample: 198.
Type of crime: Theft of government property;
Total number of victims listed in VNS: 224;
Number of victims in GAO sample: 5.
Type of crime: White collar crime/fraud;
Total number of victims listed in VNS: 68,075;
Number of victims in GAO sample: 663.
Type of crime: Other criminal prosecutions;
Total number of victims listed in VNS: 9853;
Number of victims in GAO sample: 96.
Type of crime: Missing (type of crime not entered into VNS);
Total number of victims listed in VNS: 1037;
Number of victims in GAO sample: 5.
Type of crime: Total;
Total number of victims listed in VNS: 118,013;
Number of victims in GAO sample: 1,179.
Source: GAO analysis of VNS data.
[A] Assimilated crimes are violations of state laws adopted for an area
within special federal jurisdiction, such as some military posts.
[End of table]
Prior to selecting our sample, we assessed the reliability of VNS data
by reviewing DOJ's Office of the Inspector General Report on VNS,
[Footnote 89] which was issued in January 2008. We also interviewed DOJ
Office of the Inspector General officials who conducted the audit of
VNS, and questioned the VNS project manager about VNS data quality
procedures. According to the Office of the Inspector General report,
few internal controls are in place to ensure the accuracy and
completeness of VNS data, and given that there is no routine process to
ensure that data entry errors were not made, the quality of VNS data is
primarily dependent upon the agency official who initially entered the
information into the system. The Office of the Inspector General also
reported that the inaccuracy of VNS data was evident in its attempt to
conduct a mail survey of federal crime victims. Specifically, of the
2,762 crime victims included in this survey, questionnaires to 498 (18
percent) were returned as undeliverable due to incorrect or incomplete
addresses.
In addition to concerns regarding accuracy and completeness of VNS
data, we identified other limitations in using VNS to select our sample
for our survey.
* Federal investigative agents have acknowledged that they may not be
able to identify all crime victims for every case, particularly wide-
scale fraud cases where there could be thousands of victims. Therefore,
it is likely that not all crime victims whose cases were opened and
closed between January 1, 2006, and November 30, 2007, are listed in
VNS, and thus not all of these victims had the opportunity to be
included in our sample.
* Our sample only included federal crime victims whose cases were
prosecuted by an Assistant U.S. Attorney or Criminal Division attorney
because the other litigation units within DOJ do not use VNS. However,
as mentioned previously, the vast majority of federal criminal cases
are prosecuted either solely or jointly by Assistant U.S. Attorneys;
therefore, the vast majority of known federal crime victims would have
had an opportunity to be included in our sample.
Despite concerns regarding the reliability of VNS, we still chose to
select our sample of federal crime victims from VNS because it is the
only database that contains both contact information and case
information for the majority of known federal crime victims.
In addition to limitations specifically associated with VNS, we also
faced other limitations. Considering DOJ's concerns about the
sensitivities in surveying crime victims, we agreed to conduct a mail
survey as opposed to a phone survey, which usually generates higher
response rates, in order to honor the privacy and anonymity of the
crime victims. In other mail survey efforts, we typically follow up
multiple times with nonrespondents to encourage them to complete and
return the questionnaire, with these follow-ups sometimes being
conducted by telephone. However, considering the sensitivities in
surveying crime victims, we agreed with DOJ to only follow up once with
nonrespondent victims, and this follow-up was by mail. Since victims
are used to receiving notifications from DOJ and are probably not
familiar with GAO, the questionnaire was sent in a DOJ envelope and DOJ
included a cover letter explaining the purpose of the survey and
encouraging victims to participate. The completed questionnaires,
however, were returned directly to GAO.
Of the 1,179 federal crime victims to whom we mailed a questionnaire,
248 (21 percent) returned completed questionnaires, 36 (3 percent)
returned blank questionnaires which we excluded from our analysis, and
895 (76 percent) did not return questionnaires at all. In addition, 154
(13 percent) questionnaires were returned to DOJ as undeliverable.
EOUSA staff were able to obtain current mailing addresses for some of
the victims whose questionnaires were returned as undeliverable,
although the exact number of victims for which EOUSA found addresses is
unknown because EOUSA did not keep track of this information.
Therefore, there is some overlap between the number of victims whose
questionnaires were returned undeliverable and the number of victims
who returned completed or partially completed questionnaires or who did
not return their questionnaires at all.
Due to the low response rate to our survey, we cannot generalize the
survey results to federal crime victims in our study period, and
instead, limit our discussion of survey results to only those victims
who responded.
Survey of U.S. Attorneys Office Victim-Witness Professionals:
Victim-witness professionals, particularly those at U.S. Attorneys
Offices, have the most direct interaction with crime victims during and
following the prosecution phase of a case. We therefore decided to
obtain their perspectives on CVRA implementation. We conducted a Web-
based survey of all 201 victim-witness professionals who were located
in each of the 93 U.S. Attorneys Offices as of April 2008, which is
when we released the questionnaire. Each of the 201 victim-witness
professionals were sent an e-mail containing a unique user name and
password to ensure that only members of the target population could
respond to our survey. To encourage victim-witness professionals to
complete the questionnaire, we sent a number of follow-up e-mails to
those who had not yet completed their Web-based questionnaire over the
course of a 5-week period. We received responses from 174 (87 percent)
of the victim-witness professionals.
For the survey of federal crime victims as well as the survey of victim-
witness professionals, the practical difficulties of conducting such
surveys may introduce errors, commonly referred to as nonsampling
errors. For example, difficulties in how a particular question is
interpreted, in the sources of information available to respondents, or
in how data are entered into databases or analyzed, can introduce
unwanted variability into the survey results. We took steps in the
development of both questionnaires to minimize these nonsampling
errors. For example, a social science survey specialist designed both
questionnaires in collaboration with GAO staff with subject matter
expertise. Then, both draft questionnaires were pretested with a number
of federal crime victims and victim-witness professionals to ensure
that the questions were relevant, clearly stated, and easy to
comprehend. When data were analyzed for both surveys, a second
independent analyst checked all computer programs that assimilated and
summarized the results. In the case of the crime victim survey, data
were entered by staff at a professional data entry firm and a sample of
the data was verified by GAO staff. Since the victim-witness
professional survey was Web-based, respondents entered their answers
directly into the electronic questionnaire. This eliminated the need to
key the data into a database, thus removing an additional source of
error.
Site Visits to Select Federal Judicial Districts:
Considering that the enforcement mechanisms--victims' ability to file
motions and petition for writ of mandamus and DOJ's process for
investigating and taking disciplinary action in response to victim-
related complaints--are an expansion of other federal crime victim
statutes, we thought it was essential to visit locations where these
enforcement mechanisms had been employed. We selected a nonprobability
sample of 7 federal judicial districts for site visits because these
districts either had multiple instances in which individuals asserted
CVRA rights in court (filed a motion for relief in district court,
petitioned the court of appeals for writ of mandamus, or otherwise
asserted CVRA rights in court) or a judge, on his or her own
initiative, based a case-related decision on the CVRA.[Footnote 90] In
addition, in one of these districts, several victim complaints against
a DOJ employee were investigated. Also, these locations allowed us to
visit courts in various federal circuits. Specifically, these 7
districts are located in 6 different federal circuits. (There are a
total of 12 federal regional circuits.) The districts we visited were:
* Central District of California (Los Angeles):
* District of the District of Columbia (Washington, D.C.):
* District of Utah (Salt Lake City):
* Southern District of Texas (Houston):
* District of Hawaii (Honolulu):
* Eastern District of New York (Brooklyn):
* Northern District of Iowa (Cedar Rapids):
In each location, we met with district judges or magistrate judges,
Federal Public Defenders or Assistant Federal Public Defenders, and
USAO staff--including Criminal Division Chiefs, Assistant U.S.
Attorneys, and victim-witness professionals--who were involved in cases
where victims filed motions or petitioned for a writ of mandamus
regarding their CVRA rights. In addition, we met with investigators and
victim-witness professionals at FBI field offices in each location and
at U.S. Postal Inspection Service, ATF, and DEA field offices if
located in the jurisdictions we visited. We also spoke with appellate
judges in Houston, Texas and Los Angeles, California who presided over
cases in which victims petitioned for a writ of mandamus regarding
their CVRA rights. During the design phase of our review, we met with
similar officials in the District of Arizona and the District of
Maryland. We selected Arizona and Maryland because these states were
identified by the victim advocates we interviewed as having a long-
standing history of victims' rights enforcement. Table 15 identifies
the types of officials we met with or spoke to in each location.
Table 15: Types of Federal Officials GAO Met with or Spoke with at Site
Visit Locations for the CVRA Review:
Site visit location: Central District of California;
Appellate judges: [Check];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Check];
USAO: [Check];
Federal public defender: [Empty];
FBI: [Check];
USPIS: [Check];
ATF: [Empty];
DEA: [Check].
Site visit location: District of the District of Columbia;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Check];
USAO: [Check];
Federal public defender: [Empty];
FBI: [Check];
USPIS: [Check];
ATF: [Check];
DEA: [Empty].
Site visit location: District of Utah;
Appellate judges: [Empty];
District judges: [Check][A];
Magistrate judges: [Empty];
Clerks of courts: [Empty];
USAO: [Check];
Federal public defender: [Check];
FBI: [Check];
USPIS: [Check];
ATF: [Empty];
DEA: [Empty].
Site visit location: Southern District of Texas;
Appellate judges: [Check];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Check];
USAO: [Check];
Federal public defender: [Empty];
FBI: [Check];
USPIS: [Check];
ATF: [Empty];
DEA: [Empty].
Site visit location: District of Hawaii;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Check];
USAO: [Check];
Federal public defender: [Check];
FBI: [Check];
USPIS: [Empty];
ATF: [Check];
DEA: [Empty].
Site visit location: Eastern District of New York;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Empty];
USAO: [Check];
Federal public defender: [Empty];
FBI: [Check];
USPIS: [Empty];
ATF: [Check];
DEA: [Check].
Site visit location: Northern District of Iowa;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Check];
Clerks of courts: [Empty];
USAO: [Check];
Federal public defender: [Empty];
FBI: [Check];
USPIS: [Check];
ATF: [Check];
DEA: [Empty].
Site visit location: District of Arizona;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Empty];
Clerks of courts: [Empty];
USAO: [Check];
Federal public defender: [Check];
FBI: [Empty];
USPIS: [Empty];
ATF: [Empty];
DEA: [Empty].
Site visit location: District of Maryland;
Appellate judges: [Empty];
District judges: [Check];
Magistrate judges: [Check];
Clerks of courts: [Empty];
USAO: X;
Federal public defender: [Check];
FBI: [Empty];
USPIS: [Empty];
ATF: [Empty];
DEA: [Empty].
Source: GAO summary of site visit locations and meetings.
[A] One of the individuals we included in our tally of district judges
with whom we met in Utah is a retired federal judge who has now assumed
a role as a crime victim advocate and attorney.
[End of table]
In total we met with or spoke to 3 appellate judges, 19 district
judges, 2 magistrate judges, 9 Federal Public Defenders or Assistant
Federal Public Defenders, and Criminal Division Chiefs, Assistant U.S.
Attorneys, and victim-witness professionals at 9 U.S. Attorneys
Offices. In addition, we met with federal agents and victim-witness
professionals at 7 FBI field offices, 5 U.S. Postal Inspection Service
field offices, 4 ATF field offices, and 3 DEA field offices. Because we
selected a nonprobability sample of districts to visit, the information
we obtained at these locations may not be generalized to all federal
judicial districts across the country. However, because we selected
these locations based on specific activity that had occurred concerning
the CVRA, the information we obtained at these locations provided us
with a good perspective on the actual use of CVRA enforcement
mechanisms.
Objective 1: Efforts to Implement the CVRA:
Department of Justice Efforts:
We used various methods to identify efforts made by DOJ to implement
the CVRA. First, we reviewed written guidance provided to DOJ employees
on actions that could and should be taken to afford crime victims their
CVRA rights. Guidance included the Attorney General Guidelines on
Victim and Witness Assistance and information generated by individual
U.S. Attorneys Offices.
Second, we interviewed DOJ headquarters officials--including Executive
Office of the United States Attorneys (EOUSA) staff who oversee the
victim-witness program for U.S. Attorneys Offices. During site visits,
we interviewed victim-witness personnel and Assistant U.S. Attorneys
and investigative agency field staff to determine efforts they have
made--above and beyond written guidance--to afford crime victims their
rights.
Third, given that the extent to which victims are afforded their right
to reasonable, accurate, and timely notice of public court proceedings
is measurable, we reviewed notification letters sent by select U.S.
Attorneys Offices to determine whether they were timely. We reviewed
notification letters sent by USAOs with large, medium, and small
caseloads. We used the number of all criminal cases that were filed in
judicial districts between March 2006 and March 2007, according to
Administrative Office of the U.S. Courts (AOUSC) data, as the caseload
measure. We reviewed notification letters sent out by: (1) the three
judicial districts with the most criminal cases, (2) three judicial
districts with cases close to the median number of criminal cases, and
(3) the three judicial districts with close to the least number of
criminal cases. Considering that VNS only maintains records of
notification letters for 30 days, we requested notification letters
sent out by these USAOs over a specific 30-day period. The judicial
districts from which we obtained notification letters are listed in
table 16, along with the total number of criminal cases filed in that
district between March 2006 and March 2007. Please note that in many of
these districts, the majority of criminal cases filed, such as
immigration cases, do not involve victims. However, our purpose was to
select districts based on overall workload as opposed to the workload
solely associated with victims. Because we selected nonprobability
samples of U.S. Attorney Offices and notification letters from these
offices, the results of our analysis cannot be generalized either to
all USAOs or to all notification letters sent by the offices we
selected. However, this analysis provided us with informative examples
of the timeliness of notification letters sent by USAOs.
Table 16: Number of Notification Letters Sent by Select Large, Medium,
and Small U.S. Attorneys Offices during One 30-day Period from February
2008 to April 2008:
U.S. Attorneys Office: District of Arizona;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 3,671;
Number of notification letters sent in February 2008: 208;
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: Western District of Texas;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 5,149;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: 51;
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: Southern District of Texas;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 5,011;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: 52.
U.S. Attorneys Office: Middle District of Pennsylvania;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 444;
Number of notification letters sent in February 2008: 68;
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: District of Colorado;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 574;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: 132;
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: Southern District of Mississippi;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 451;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: 116.
U.S. Attorneys Office: Eastern District of Oklahoma;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 69;
Number of notification letters sent in February 2008: 29;
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: District of Guam; Number of all criminal cases
filed between March 31, 2006, and March 31, 2007: 136;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: 1;
Number of notification letters sent in April 2008: [Empty].
U.S. Attorneys Office: District of the Virgin Islands;
Number of all criminal cases filed between March 31, 2006, and March
31, 2007: 117;
Number of notification letters sent in February 2008: [Empty];
Number of notification letters sent in March 2008: [Empty];
Number of notification letters sent in April 2008: 1.
Source: GAO analysis of notification letters sent to crime victims.
Note: If a cell in this table has been left blank, we did not request
notification letters from that particular USAO for that particular
month.
[End of table]
Fourth, through site visits and headquarters meetings, we obtained
perspectives from DOJ officials on any challenges they have experienced
in affording crime victims their rights and efforts they have made or
planned to make to address these challenges. We also solicited
perspectives from victim-witness personnel in affording crime victims
their rights--since they have the most direct interaction with victims
--through our Web-based survey. We also sought suggestions from these
officials on how the challenges of affording victims their rights could
be overcome.
Federal Judiciary Efforts:
We used various methods to identify and assess the efforts made by the
federal judiciary--including AOUSC, FJC, the Judicial Conference, and
select judges--to ensure that crime victims are afforded their rights
under the CVRA.
First, we reviewed CVRA-related training and guidance developed by
AOUSC, FJC, and the Judicial Conference for federal judges. The
guidance was in the form of memoranda, training materials, videos, as
well as revisions to the Federal Rules of Criminal Procedure and the
Benchbook for U.S. District Court Judges. Second, during our site
visits to federal judicial districts, we interviewed federal judges to
obtain their perspectives on the usefulness of the guidance and
training they received regarding the CVRA, and whether any additional
information would be useful to help them ensure that crime victims are
afforded their rights. We also interviewed AOUSC and FJC officials to
inquire about additional CVRA-related efforts they have planned.
Objective 2: Mechanisms to Ensure Adherence to the CVRA:
To help ensure that DOJ officials are complying with CVRA requirements,
the CVRA requires DOJ to designate an administrative authority to
receive and investigate complaints related to the provision or
violation of the rights of a crime victim. The CVRA also required DOJ
to train or impose disciplinary actions on employees who fail to comply
with the provisions of federal law pertaining to the treatment of crime
victims.
Complaint Process:
First, we evaluated the extent to which victims are aware of the
complaint process. In order for the complaint process to be an
effective method for ensuring that DOJ officials are compliant with
CVRA, victims need to be aware of the process and understand its
purpose. During our data collection phase, we interviewed DOJ
officials, such as victim-witness personnel and prosecutors, regarding
the methods used by DOJ to inform victims about the complaint process.
Also, we reviewed various DOJ components' brochures and Web sites to
determine what complaint process information was being provided to
crime victims. We used our Victim-Witness Personnel Survey to determine
whether staff inform any or all victims about the complaint process.
Additionally, we incorporated questions into our crime victim survey in
an attempt to determine whether they were aware of the victim complaint
process.
Second, we reviewed 141 of the 144 files related to victim complaints
received by DOJ's Victims' Rights Ombudsman (VRO) from December 2005 to
April 2008[Footnote 91] to obtain information on the nature of the
complaints and the VRO's decisions as to whether the DOJ office or
employees cited in the complaints had not afforded victims their CVRA
rights. We selected December 2005 as the start date for our review of
victim complaints because this was when the first person filed a
complaint with the VRO. While DOJ's regulations regarding the complaint
process did not take effect until December 19, 2005, While DOJ's
regulations regarding the complaint process did not take effect until
December 19, 2005, the VRO accepted a complaint filed before the
effective date and responded to it after the regulations took effect.
[Footnote 92] We chose April 2008 as the end date of our review to
allow us enough time to analyze the complaint information prior to
issuing our report. We summarized the complaint file information in a
data collection instrument. Information collected includes (a) a
summary of the concerns raised by the complainant, (b) CVRA rights the
complainant alleged were not afforded, (c) the title of the individual
whom the complainant claimed denied them their CVRA rights, and (d)
actions taken by DOJ officials to investigate and resolve the
complaint.
Third, we determined whether the VRO's protocol for investigating and
responding to victim-related complaints is consistent with professional
ombudsman standards[Footnote 93] and standards for internal control in
the federal government. For example, we determined whether the VRO is
recording the basis for its decisions and whether the selection of
individuals to investigate complaints allows for an independent and
impartial review. To make this determination, we conducted interviews
with the VRO and reviewed documentary evidence outlining VRO procedures
for addressing victim complaints. We also conducted in-person or phone
interviews with U.S. Attorney "points-of-contact" who investigated
complaints from federal crime victims. In this discussion, we inquired
about actions taken to conduct the investigation, and if relevant, why
these officials may have deviated from guidance. Further, we reviewed
two studies that assessed the practices of state victims' rights
enforcement offices--located in Alaska, Arizona, Connecticut, Colorado,
Maryland, Minnesota, South Carolina, and Wisconsin-- regarding their
efforts to address victim complaints against state officials. We also
interviewed representatives from each of these offices to obtain
additional information on their process for investigating victim
complaints.
Filing Motions and Petitions for Writ of Mandamus:
We also obtained information on instances in which crime victims
asserted their CVRA rights in court by filing a motion for relief in
the district court, petitioning the appellate court for a writ of
mandamus, or otherwise asserting CVRA rights in court. Specifically, we
described instances in which federal crime victims asserted their
rights in court, the specific rights they were asserting, and the
courts' decisions on these assertions. We also identified any
differences in judges' interpretations of CVRA provisions when deciding
these cases. However, we are not in a position to make an evaluative
judgment on the courts' decisions. We coordinated with the National
Crime Victims' Law Institute (NCVLI), which maintains a database of
instances in which the CVRA is cited in court decisions, to help ensure
that we captured as many cases in which federal victims file CVRA
motions and petitions as possible. (We were not able to identify all
instances in which victims may have asserted their rights, particularly
instances in which the victims' motions or courts' orders were made
verbally or not published in a searchable database.) In addition, we
incorporated questions into our crime victim survey in an attempt to
determine the extent to which victims were aware of their rights and
aware that they could assert their rights in federal court.
During site visits, we obtained perspectives from various participants
in the federal criminal justice process on how victims asserting their
rights affected court proceedings and whether they had any concerns or
would like additional clarification or guidance to help the victim
assertion process run more smoothly. Specifically, we interviewed
select appellate, district, and magistrate judges, prosecutors, victim-
witness personnel, and federal defenders who have experienced a
situation where a crime victim filed a motion for relief, petitioned
for a writ of mandamus, or otherwise asserted CVRA rights.
We also assessed whether AOUSC had met the CVRA requirement to report
to Congress annually the number of times that a CVRA right is asserted
in a criminal case and the relief requested is denied, the reason for
the denial, as well as the number of times a mandamus action is brought
pursuant to the CVRA. We reviewed AOUSC memoranda regarding the CVRA
reporting requirement that was distributed to the courts and
interviewed clerks in the district courts about how they identified
cases to submit to AOUSC. We also interviewed AOUSC officials about the
process used for preparing the annual reports and the steps taken to
ensure that the reports are complete. In addition, we obtained AOUSC's
annual reports for fiscal years 2005 to 2007--that is, each report that
had been issued since the enactment of the CVRA--and compared AOUSC's
list of denied motions and victim petitions to the list we generated
through our own searches. We discussed any discrepancies between the
two lists with the AOUSC officials responsible for preparing the annual
report, district judges who ruled on the motions over which there was a
discrepancy, and the clerks of the courts where the judges are located.
Objective 3: DOJ Performance Regarding Provision of CVRA Rights:
To address this objective, we first reviewed DOJ's 2007-2012 Strategic
Plan to identify any department-wide performance measures regarding the
provision of victims' rights. We determined the extent to which these
measures were consistent with Government Performance and Results Act of
1993 (GPRA) requirements.[Footnote 94]
Second, we reviewed the strategic plans and other performance
measurement materials of all DOJ component agencies identified by the
Attorney General Guidelines as having responsibilities regarding the
provision of crime victims' rights to determine whether the components
had performance goals and measures that were aligned with the
department's objective regarding the provision of crime victims'
rights.
Third, we assessed DOJ's efforts to ensure agency compliance with
victims' rights provisions by requesting and reviewing the annual
compliance reports each DOJ agency with victim-related responsibilities
is supposed to prepare in accordance with the Attorney General
Guidelines. We also interviewed OVC officials about the process they
used to analyze and summarize each of the component compliance reports
to determine overall departmental compliance with victims' rights
provisions and how OVC uses the results to help component agencies
improve their victims' rights efforts. We used the internal control
standards for the federal government as the basis for evaluating the
effectiveness of DOJ's victims' rights compliance monitoring efforts.
Finally, we reviewed DOJ's performance appraisal process to determine
whether it is an effective measure for evaluating DOJ employees'
compliance with CVRA, as intended. The Attorney General Guidelines
require DOJ agencies to incorporate--in their annual work plans and
performance appraisals--the implementation of and evaluation of
employee adherence or non-adherence to victims' rights standards set
forth in the Attorney General Guidelines. To determine if agencies are
complying with Attorney General Guidelines, we obtained and reviewed
the performance expectations for investigative agents, prosecutors,
victim-witness personnel, corrections officers, and parole officers,
and determined how well these performance expectations aligned with the
standards set forth in the Attorney General Guidelines.
Objective 4: Federal Courts' Interpretation of the CVRA:
We employed various methods to identify and analyze the key issues that
have arisen in the interpretation of the CVRA by the federal courts.
First, we reviewed and analyzed motions and petitions for writs of
mandamus under the CVRA, as well as cases in which the courts based a
decision on the CVRA on its own initiative, without either the victim
or the prosecutor asserting CVRA rights. We obtained these cases
through legal search engines, court dockets, interviews, and case
compilations by the FJC and the National Crime Victims Law Institute to
help ensure that we performed as comprehensive a review as possible. We
searched for all cases in which CVRA had been discussed. We conducted
our final electronic search on June 30, 2008. The cases included in
this report are those that were available in legal databases as of that
date.[Footnote 95] We chose this date to allow us enough time to review
and summarize the cases prior to issuing this report. However, we may
not have identified all instances in which victims asserted CVRA
rights, particularly if the motion and court ruling were made verbally,
or not published within a searchable database. We analyzed the cases to
identify key CVRA provisions that are being interpreted by the courts
and any differences in the way in which the courts have interpreted
them. However, we are not in a position to make an evaluative judgment
on the courts' decisions.
Second, during our site visits, we interviewed judges, prosecutors,
defense attorneys, and victim attorneys who were involved in CVRA-
related cases to discuss the interpretation issues that arose in their
cases and how court decisions have contributed to the development of
case law. We also conducted phone interviews and in-person meetings
with representatives of crime victim advocacy associations to obtain
their perspectives on what they considered to be the key CVRA
provisions that are being interpreted by the courts. These associations
included the National Crime Victims Law Institute, Arizona Voice for
Victims of Crime, and Maryland Crime Victims' Resource Center. We chose
these organizations because they have assisted victims in filing
motions and petitions for writs of mandamus to assert their CVRA rights
in court.
Third, we analyzed DOJ policies, in the Attorney General Guidelines and
other guidance, that address key CVRA provisions and obtained
perspectives from DOJ officials regarding why these policies were
enacted. We also reviewed FJC guidance on the CVRA to capture issues
that were discussed and interviewed FJC and AOUSC officials to obtain
their perspectives on these issues.
Finally, we reviewed files for victim complaints that were submitted to
the VRO to identify concerns raised related to the interpretation of
CVRA provisions.
Objective 5: Perspectives on CVRA Implementation:
In order to understand the impact that the CVRA has had on participants
in the federal justice system, we asked a range of federal participants
about outcomes associated with implementing this act.
First, we incorporated questions into our crime victim survey in an
attempt to determine the extent to which DOJ and federal courts'
efforts to afford victims CVRA rights are effective. Specifically, the
survey results, though not generalizable, helped to provide some
indication about victims' awareness of their rights and their reported
satisfaction with the extent to which they were afforded those rights.
The survey results also provided an indication about the extent to
which victims reportedly exercised their rights by attending, speaking,
or submitting written statements at court proceedings. However, we did
not use victims' level of participation in court proceedings to provide
an indication of the effectiveness of DOJ and the courts' efforts to
afford crime victims' their rights, since victims may choose not to
participate in court proceedings for a variety of reasons (e.g.,
wanting to put the case behind them and move on).
Second, during site visits, we obtained the perspectives of federal
judges, Assistant U.S. Attorneys, victim-witness personnel, and federal
defenders regarding the impact the CVRA has had on the treatment of
crime victims as well as defendants, and the impact the CVRA has had on
court proceedings. Perspectives of victim-witness personnel were also
obtained through the Web-based survey.
Third, we conducted phone interviews and in-person meetings to obtain
the perspectives of representatives of major national crime victim
advocacy associations regarding the impact the CVRA has had on the
treatment of crime victims. These associations include the: National
Center for Victims of Crime; Justice Solutions; National Organization
for Victim Assistance; National Criminal Justice Association; Joint
Center on Violence and Victim Studies; Parents of Murdered Children;
and the National Crime Victim Law Institute and its three federal
clinics located in Arizona, Maryland, and South Carolina.
Fourth, we conducted phone interviews and in-person meetings to obtain
the perspectives of defendant advocate associations regarding the
impact of the CVRA on the treatment of defendants. These associations
include the American Civil Liberties Union and the National Association
of Criminal Defense Lawyers.
We identified these organizations based on publications they issued
regarding crime victims' rights.
The information obtained to answer this objective is limited to the
opinions we collected from federal employees and others, and cannot be
generalized to the attitudes of all participants in the federal
criminal justice system regarding the impact of the act.
[End of section]
Appendix II: Federal Statutes Enacted between 1982 and 2004 that
Address Similar Issues as the CVRA:
Table 17: Federal Statutes Enacted from 1982 to 2004 that Address
Similar Issues as the CVRA:
Crime Victims' Rights Act of 2004: The right to be reasonably protected
from the accused;
Victim and Witness Protection Act of 1982: [Empty];
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to be reasonably protected from the
accused offender;
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right to reasonable, accurate,
and timely notice of any public court proceeding, or any parole
proceeding, involving the crime or of any release or escape of the
accused;
Victim and Witness Protection Act of 1982: Required the Attorney
General, when developing DOJ guidelines, to consider that victims of
major serious crimes should receive prompt advance notification, if
possible, of judicial proceedings related to their cases, including
arrest, initial appearance, release, and proceedings of prosecution;
Victims of Crime Act of 1984: Amended the 1982 law to require the
Attorney General to consider that victims of serious crimes, rather
than victims of major serious crimes, should receive prompt advance
notification, if possible, of arrest, initial appearance, release, and
proceedings in the prosecution and punishment of the accused;
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to be notified of court proceedings and
the right to information about the conviction, sentencing,
imprisonment, and release of the offender; also requires responsible
officials to provide victims with the earliest possible notice of
investigation, arrest, filing of charges, certain court proceedings,
release or detention status, acceptance of plea of guilty or rendering
of verdict, sentencing, scheduling of parole hearing, and any form of
release of the offender;
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right not to be excluded from
any such public court proceeding, unless the court, after receiving
clear and convincing evidence, determines that testimony by the victim
would be materially altered if the victim heard other testimony at that
proceeding;
Victim and Witness Protection Act of 1982: [Empty];
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to be present at all public court
proceedings related to the offense, unless the court determines that
testimony by the victim would be materially affected if the victim
heard other testimony at trial;
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right to be reasonably heard at
any public proceeding in the district court involving release, plea,
sentencing, and any parole proceeding;
Victim and Witness Protection Act of 1982: [Empty];
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: [Empty];
Violent Crime Control and Law Enforcement Act of 1994: Amended Rule 32
of the Federal Rules of Criminal Procedure to require the judge, if a
sentence is to be imposed for a crime of violence or sexual abuse, to
address the victim personally if the victim is present at the
sentencing hearing and determine if the victim wishes to make a
statement or present any information in relation to the sentence;
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: Provided that federal crime
victims may not be excluded from the trial related to the offense
because the victim may, during a sentencing hearing, make a statement
or submit information related to the sentence.
Crime Victims' Rights Act of 2004: The reasonable right to confer with
the attorney for the Government in the case;
Victim and Witness Protection Act of 1982: Required the Attorney
General, when developing DOJ guidelines, to consider that victims of
serious crimes should be consulted by the attorney for the government
in order to obtain the the victim's views about the disposition of any
federal criminal case brought as a result of such crime, including the
views of the victim about dismissal, release of the accused pending
judicial proceedings, plea negotiations, and pretrial diversion
program;
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to confer with the attorney for the
government in the case;
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right to full and timely
restitution as provided in law;
Victim and Witness Protection Act of 1982: Provided for discretionary
restitution in cases arising out of Title 18 of the U.S. Code or in air
piracy cases;
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to restitution;
Violent Crime Control and Law Enforcement Act of 1994: Provided for
mandatory restitution in certain cases, including cases involving
sexual abuse, sexual exploitation of children, and domestic abuse;
Mandatory Victims Restitution Act of 1996: Provided for mandatory
restitution in certain cases involving violent crimes and property
crimes arising under Title 18 of the U.S. Code;
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right to proceedings free from
unreasonable delay;
Victim and Witness Protection Act of 1982: [Empty];
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: [Empty];
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Crime Victims' Rights Act of 2004: The right to be treated with
fairness and with respect for the victim's dignity and privacy;
Victim and Witness Protection Act of 1982: [Empty];
Victims of Crime Act of 1984: [Empty];
Victims' Rights and Restitution Act of 1990: Provided that federal
crime victims have the right to be treated with fairness and respect
for the victim's dignity and privacy;
Violent Crime Control and Law Enforcement Act of 1994: [Empty];
Mandatory Victims Restitution Act of 1996: [Empty];
Victim Rights Clarification Act of 1997: [Empty].
Source: GAO analysis of federal statutes.
[End of table]
[End of section]
Appendix III: Complaints Submitted to the Victims' Rights Ombudsman by
Individuals Determined to Be Federal Crime Victims:
Table 18 includes a summary of the 11 complaints submitted to the
Department of Justice (DOJ) Victims' Rights Ombudsman (VRO) from
December 2005 to April 2008 by individuals whom the VRO determined to
be federal crime victims.[Footnote 96] The VRO determined that in none
of these instances was a DOJ employee noncompliant with his or her
obligations regarding the provision of victims' rights. We are not in a
position to separately assess the validity of these complaints or the
truthfulness of any of the allegations therein because we did not
conduct an independent investigation of the complaints. We also did not
obtain additional information on the VRO's decisions related to these
complaints, other than the final determination. Therefore, the
information included in the table below only represents the victims'
perspectives regarding the complaints.
Table 18: Complaints Submitted to the Victims' Rights Ombudsman from
December 2005 to April 2008 by Individuals Determined to Be Federal
Crime Victims:
Number: 1;
Date received by the VRO: October 2006;
Complaint summary: The complainant, a victim-witness, did not feel she
was reasonably protected from the accused. She also claimed that she
did not receive timely notice of hearing dates or of plea negotiations
with some of the defendants. The complainant stated that the
prosecutors tried to exclude her from observing the trial, but the
judge permitted her to participate. Although the complainant stated
that she was able to meet with the prosecutor on several occasions, she
stated that the prosecutor eventually became nonresponsive and called
her derogatory names in court. She also claimed that the trial was
unreasonably delayed.
Number: 2;
Date received by the VRO: October 2006;
Complaint summary: The complainant did not feel like she was reasonably
protected from an inmate against whom she had testified, as she had
received letters from him. She also asserted that she was not notified
of instances in which the inmate was transferred to a different
facility.
Number: 3;
Date received by the VRO: December 2006;
Complaint summary: The complainant stated that she was dissatisfied
that there was no federal indictment, after the federal prosecutor told
her that he would bring the case to a federal grand jury. The
complainant also raised concerns that the federal prosecutor did not
respond to her attempts to contact him and claimed that the prosecutor
did not attend the hearing that had been scheduled.
Number: 4;
Date received by the VRO: March 2007;
Complaint summary: The complainant believed that one of the defendants
in a fraud case should have been charged for additional counts of fraud
and that the defendant's sentence was inadequate compared to the damage
caused by the crime. (Seven victims in this case submitted complaints.)
Number: 5;
Date received by the VRO: May 2007;
Complaint summary: No summary was provided by the complainant; however,
in the "Other Relevant Information" section of the complaint form, the
victim provided information on how being defrauded by the defendant led
to significant financial hardship and may have had a negative impact on
her health. (Seven victims in this case submitted complaints.)
Number: 6;
Date received by the VRO: May 2007;
Complaint summary: The complainant believed that the plea agreement
negotiated for the individual who defrauded him was too lenient, noting
that the defendant could have been charged with more counts. The
complainant wanted an explanation of the plea agreement and an
investigation of whether there was collusion between the parties that
negotiated the plea agreement. (Seven victims in this case submitted
complaints.)
Number: 7;
Date received by the VRO: May 2007;
Complaint summary: The complainant believed that the defendant in a
fraud case should have been subjected to greater punishment that
adequately reflected the damage caused by the crime. (Seven victims in
this case submitted complaints.)
Number: 8;
Date received by the VRO: May 2007;
Complaint summary: The complainant believed that the defendant in a
fraud case should have been subjected to greater punishment that
adequately reflected the damage caused by the crime. (Seven victims in
this case submitted complaints.)
Number: 9;
Date received by the VRO: June 2007;
Complaint summary: The complainant believed that the defendant in a
fraud case should have been subjected to greater punishment for his
crime, stating that he had suffered significant hardship as a result of
his victimization. (Seven victims in this case submitted complaints.)
Number: 10;
Date received by the VRO: June 2007;
Complaint summary: The complainant believed that the plea agreement for
one defendant did not match the crime or the hardship caused to the
victims, and that the defendant should have been charged with
additional counts of fraud. The complainant claimed that as a result of
the crime, her family's financial condition has been dramatically
changed. Although the complainant did not specify which CVRA right she
felt she had been denied, she underlined text for the right associated
with full and timely restitution. (Seven victims in this case submitted
complaints.)
Number: 11;
Date received by the VRO: January 2008;
Complaint summary: Complainant was the executor of the victim's estate
and had to pay the bank money because the deceased's account was
overdrawn.
Source: GAO analysis of federal crime victim complaint files.
[End of table]
[End of section]
Appendix IV: Summary of Cases in which a Court Issued a Decision Based
on the CVRA:
Table 19: Summary of Cases in which a Court Issued a Decision Based on
the CVRA that We Reviewed, as of June 30, 2008A:
First Circuit:
Case: United States v. Tobin, No. 04-cr-216-01, 2005 WL 1868682 (D.N.H.
July 22, 2005) (order granting motion);
Case summary: The crime victim objected to a joint motion to continue
the trial for 90 days, arguing, among other things, that a continuance
would violate the victim's right to proceedings free from unreasonable
delay. The U.S. District Court for the District of New Hampshire
granted the motion for a continuance, finding that the continuance was
reasonable, but the court noted that, based on its obligation to ensure
that crime victims are afforded their rights, no further continuance
would be granted absent extraordinary circumstances;
CVRA right asserted or discussed: The right to proceedings free from
unreasonable delay.
Second Circuit:
Case: United States v. Sacane, No. 3:05-cr-325, 2007 WL 951666 (D.
Conn. Mar. 28, 2007) (order denying motion);
Case summary: The crime victims moved for an order directing the
defendant to provide the victims with detailed financial information in
advance of a restitution hearing. The U.S. District Court for the
District of Connecticut denied the motion, stating that if the CVRA
does not provide victims with a right to disclosure of presentence
reports, then it would not provide victims with the right to obtain
such disclosures directly from the defendant; rather, if the victims
believe that disclosure of the information is necessary, they may seek
the assistance of the government;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: Rzayeva v. United States, 492 F. Supp. 2d 60 (D. Conn. 2007);
Case summary: The plaintiffs brought a civil suit alleging that certain
federal agencies had violated the CVRA by failing to investigate the
death of a medical patient. The U.S. District Court for the District of
Connecticut held that it did not have jurisdiction to order federal
officials to initiate a prosecution;
CVRA right asserted or discussed: None.
Case: United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005);
Case summary: After discovering that victims had not received adequate
notice of the initial appearance and detention hearing, the U.S.
District Court for the Eastern District of New York ordered the
government to provide victims with a summary of the earlier proceedings
and notice of future proceedings. The court also approved a joint
written request for a Speedy Trial Act waiver, stating that it would
not cause unreasonable delay and noting that a public hearing on the
matter would have required victim notification. The opinion also
discusses other CVRA provisions in general;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right to be reasonably protected from the
accused; The right not to be excluded from any public court proceeding;
The right to be reasonably heard; The right to proceedings free from
unreasonable delay; The right to be treated with fairness and with
respect for dignity and privacy.
Case: United States v. Guevara-Toloso, No. 04-1455, 2005 WL 1210982
(E.D.N.Y. May 23, 2005) (order sua sponte);
Case summary: In a case involving a defendant arrested for illegally
reentering the United States after being convicted of a felony and
subsequently being deported, the U.S. District Court for the Eastern
District of New York asked the prosecutor whether the victims of the
predicate offense, which was the initial felony, had been notified of
the proceedings. The prosecutor opined that he did not think that the
CVRA required such notification, and the court agreed, stating that
because the predicate conviction was for a state offense, the victims
of the predicate crime were not victims under the CVRA;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Case: United States v. Ingrassia, 392 F. Supp. 2d 493 (E.D.N.Y. 2005);
Case summary: In a securities fraud case involving at least 200
victims, the government provided notification to victims through a
publication and a mailed notification that informed victims that
further information would be provided through the VNS Web site. In the
report and recommendations, the magistrate judge found that reliance on
the VNS Web site in this case did not satisfy the CVRA notification
requirement. The magistrate judge recommended that the judge accept the
guilty pleas of the defendants once the government provided
notification to all identified victims by first-class mail of the
defendants' pleas, release status, sentencing date, and the victims'
right to be heard with regard to the plea and sentence. The district
judge accepted the magistrate judge's report and recommendation;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Case: United States v. Saltsman, No. 07-cr-641, 2007 WL 4232985
(E.D.N.Y. Nov. 27, 2007) (order granting motion);
Case summary: In a securities fraud case potentially involving tens of
thousands of victims, the government moved for an order authorizing it
to provide notice to victims through a publication that directs victims
to a Web site providing further information about the case. The U.S.
District Court for the Eastern District of New York granted the motion,
noting that the CVRA authorizes the court to fashion a reasonable
procedure to give effect to the CVRA when the number of victims makes
it impracticable to accord all of the victims all of the CVRA rights;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Case: United States v. Rubin, 558 F. Supp. 2d 411 (E.D.N.Y. 2008);
Case summary: In a case in which the defendant was indicted for
securities fraud first in 2004 and then by a superseding indictment in
2006, victims of the superseding indictment filed a motion asserting
that multiple CVRA rights had been violated. The U.S. District Court
for the Eastern District of New York held that although the government
did not meet its CVRA obligation to inform victims of their CVRA
rights, no substantive CVRA rights had been violated;
CVRA right asserted or discussed: All CVRA rights.
Case: United States v. Rigas, 371 F. Supp. 2d 474 (S.D.N.Y. 2005);
Case summary: In a securities fraud case potentially involving tens of
thousands of victims, the government proposed a settlement agreement in
which the defendants would forfeit certain assets and establish a
victim compensation fund, and in order to receive funds from the
forfeited assets and fund, victims would forgo most civil actions
against the defendants. Two sets of victims opposed the settlement
agreement, arguing that it violated their rights to full and timely
restitution and to be treated with fairness. The U.S. District Court
for the Southern District of New York accepted the settlement
agreement, finding that the agreement was fair and equitable and in the
best interest of all the parties;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law; The right to be treated with fairness
and with respect for dignity and privacy.
Case: In re W.R. Huff Asset Management Co., 409 F.3d 555 (2d Cir.
2005);
Case summary: Crime victims in United States v. Rigas filed a petition
for a writ of mandamus, seeking to vacate the settlement agreement
approved by the U.S. District Court for the Southern District of New
York on the basis that the government violated the victims' right to
full and timely restitution, right to fairness, right to notification,
and right to confer with the prosecutor. The U.S. Court of Appeals for
the Second Circuit held that the district court did not abuse its
discretion in approving the settlement agreement, as the settlement
agreement was in accordance with applicable restitution law and the
government's actions with respect to notice and conferral were
reasonable;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The reasonable right to confer with the prosecutor;
The right to full and timely restitution, as provided in law; The right
to be treated with fairness and with respect for dignity and privacy.
Case: United States v. Blumhagen, No. 03-cr-56s, 2006 U.S. Dist. LEXIS
15380 (W.D.N.Y. Apr. 3, 2006) (order sua sponte);
Case summary: The U.S. District Court for the Western District of New
York required the government to notify victims of an upcoming plea
hearing and include in its notice a statement of its reasons for
entering a plea agreement with one defendant and for moving to dismiss
the indictment against the other;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right to be reasonably heard; The right to be
treated with fairness and with respect for dignity and privacy.
Case: United States v. Kopp, No. 00-cr-189A, 2007 WL 1747165 (W.D.N.Y.
June 18, 2007) (order denying motion);
Case summary: The government opposed the defendant's motion for
assignment of new counsel, citing in part the victim's right to a
prompt disposition of the case. The U.S. District Court for the Western
District of New York, relying in part on the CVRA, denied the
defendant's motion for new counsel;
CVRA right asserted or discussed: The right to proceedings free from
unreasonable delay.
Third Circuit:
Case: In re Walsh, No. 06-4792, 2007 WL 1156999 (3d Cir. Apr. 19,
2007);
Case summary: After petitioner's civil case against the United States,
the Navy, and eight military officers was dismissed by the U.S.
District Court for the Middle District of Pennsylvania, the petitioner
filed a petition for a writ of mandamus requesting a broad range of
relief, including a restraining order and the arrest of specified
military officers. The U.S. Court of Appeals for the Third Circuit
denied the petition, stating that, even assuming that the petitioner
was a victim under the CVRA, the petitioner applied for relief in the
wrong court;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Fourth Circuit:
Case: United States v. Bermudez, No. 1:06-cr-00135 (D. Md. Jan. 17,
2008) (order denying motion);
Case summary: The crime victim filed a motion requesting to be granted
access to certain portions of the presentence report. The U.S. District
Court for the District of Maryland allowed the victim to speak at the
sentencing hearing but denied the motion, concluding that the victim
had enough information to make a victim impact statement, and did not
allow the victim to present information about the Federal Sentencing
Guidelines calculation;
CVRA right asserted or discussed: The right to be reasonably heard; The
right to full and timely restitution, as provided in law; The right to
be treated with fairness and with respect for dignity and privacy.
Case: In re Brock, No. 08-1086 (4th Cir. Jan. 31, 2008);
Case summary: The crime victim in United States v. Brock filed a
petition for a writ of mandamus, requesting the U.S. Court of Appeals
for the Fourth Circuit to order the U.S. District Court for the
District of Maryland to reopen the sentencing, grant the victim access
to the presentence report, and allow the victim to be heard regarding
the Federal Sentencing Guidelines calculation. The U.S. Court of
Appeals for the Fourth Circuit denied the petition, without deciding on
the standard of review, finding that the district court did not abuse
its discretion or violate the victim's CVRA rights because the district
court considered the victim's written statement and allowed the victim
to speak at the sentencing hearing;
CVRA right asserted or discussed: The right to be reasonably heard; The
right to be treated with fairness and with respect for dignity and
privacy.
Case: Searcy v. Skinner, No. 6:06-1418, 2006 WL 1677177 (D.S.C. June
16, 2006);
Case summary: Plaintiff, a federal inmate, filed a complaint against a
fellow inmate, arguing that the CVRA creates a right to petition the
court and that the CVRA entitles him to restitution. The U.S. District
Court for the District of South Carolina dismissed the complaint,
stating that the government declined to bring charges against the
defendant and that the plaintiff could not use the CVRA as a mechanism
to bring an action against the defendant directly;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: In re Searcy, No. 06-7703 (4th Cir. Oct. 6, 2006);
Case summary: After the U.S. District Court for the District of South
Carolina dismissed his civil complaint, petitioner filed a petition for
a writ of mandamus claiming that he was entitled to restitution under
the CVRA. The U.S. Court of Appeals for the Fourth Circuit denied the
petition, stating that the petitioner was not entitled to relief under
the CVRA in his civil case, and that if he were dissatisfied with the
district court's dismissal of his case, he could seek review through
appeal;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: Searcy v. Paletz, No. 6:07-1389, 2007 WL 1875802 (D.S.C. June 27,
2007);
Case summary: Plaintiff, a federal inmate, filed a complaint under the
CVRA against a fellow inmate and several federal agencies, alleging
that the inmate assaulted him and that the agencies failed to protect
him. The U.S. District Court for the District of South Carolina
dismissed the complaint for failure to state a claim upon which relief
can be granted, stating that the government declined to bring charges
against the defendant and that the plaintiff could not use the CVRA as
a mechanism to bring an action against the defendant directly;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law; The right to be treated with fairness
and with respect for dignity and privacy.
Case: United States v. Sharp, 463 F. Supp. 2d 556 (E.D. Va. 2006);
Case summary: The former domestic partner of a man to whom the
defendant distributed marijuana requested to give a victim impact
statement at the defendant's sentencing hearing, arguing that she
suffered abuse as a result of the marijuana use of her former domestic
partner. The U.S. District Court for the Eastern District of Virginia
denied the request, holding that she was not a victim of the defendant
because she was not directly and proximately harmed as a result of the
offense, as the harm to her was not foreseeable by the sale of the
marijuana and the sale of the marijuana was not a "but for" cause of
the abuse that she suffered;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: United States v. Moussaoui, No. 1:01-cr-00455 (E.D. Va. Apr. 7,
2006) (order granting motion);
Case summary: Crime victims, also plaintiffs in a related civil case,
requested access to nonpublic discovery information provided by the
government to the defendant. The U.S. District Court for the Eastern
District of Virginia granted the motion, based on the CVRA and the Air
Transportation Safety and System Stabilization Act. (The government
appealed the decision, and the U.S. Court of Appeals for the Fourth
Circuit reversed the district court decision, based on grounds other
than the CVRA, as the crime victims abandoned the CVRA argument at the
appellate level. United States v. Moussaoui, 483 F.3d 220 (4th Cir.
2007));
CVRA right asserted or discussed: The right to be treated with fairness
and with respect for dignity and privacy.
Case: United States v. Purdue Frederick Co., Inc., No. 1:07-cr-00029
(W.D. Va. July 23, 2007);
Case summary: Crime victims opposed a plea agreement, arguing that they
were not provided sufficient notice of proceedings and that restitution
provided for in the plea agreement was insufficient. The U.S. District
Court for the Western District of Virginia held that sufficient notice
was provided, as information was posted on the court's Web site, and
accepted the plea agreement, finding under relevant restitution law
that, due to the difficulty of establishing causation, the restitution
process would unduly complicate and prolong the sentencing process;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right to full and timely restitution, as
provided in law.
Case: In re Jane Doe, No. 07-1705 (4th Cir. Aug. 9, 2007);
Case summary: In United States v. Purdue Frederick Co., Inc., a case in
which the defendant pleaded guilty to misbranding Oxycontin with the
intent to defraud or mislead, petitioner, an Oxycontin addict, filed a
petition for a writ of mandamus requesting the U.S. Court of Appeals
for the Fourth Circuit to order the U.S. District Court for the Western
District of Virginia to reopen the sentencing and enforce the
petitioner's right to restitution under the CVRA. Without deciding on
the standard of review, the court of appeals held that the district
court did not abuse its discretion in denying the petitioner's motion
because the petitioner was not a victim under restitution law. The
court of appeals found that the petitioner was unable to demonstrate
that she was directly and proximately harmed as a result of the conduct
underlying one of the elements of the offense; that is, the chain of
causation between the defendant's actions and the petitioner's
addiction was too attenuated to support application of restitution law;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Fifth Circuit:
Case: United States v. Lay, 456 F. Supp. 2d 869 (S.D. Tex. 2006);
Case summary: When the defendant died before his sentencing hearing and
while his appeal was pending, the defendant's estate moved to dismiss
the indictment and vacate the conviction, and the crime victim opposed
the motion, requesting the U.S. District Court for the Southern
District of Texas to issue an order of restitution under the CVRA and
restitution law. The district court granted the estate's motion and
denied the victim's motion, stating that restitution only applies when
the defendant is convicted of an offense, and the abatement doctrine
provides that a conviction is to be vacated when a defendant dies while
an appeal is pending;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: In re Butler, No. 06-20848 (5th Cir. Nov. 1, 2006);
Case summary: A crime victim in United States v. Lay filed a petition
for a writ of mandamus requesting the U.S. Court of Appeals for the
Fifth Circuit to order the U.S. District Court for the Southern
District of Texas to reverse its decision to vacate the defendant's
conviction and dismiss the indictment. The court of appeals denied the
petition, finding that the district court correctly applied the
abatement doctrine and that the CVRA right to restitution is subject
to, and not exempt from, the abatement doctrine;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: United States v. Citgo Petroleum Corp., No. C-06-563 (S.D. Tex.
Aug. 8, 2007) (order denying motion); United States v. Citgo Petroleum
Corp., No. C-06-563 (S.D. Tex. May 12, 2008) (order granting motion);
Case summary: The government filed a motion requesting that the U.S.
District Court for the Southern District of Texas to unseal the
government's submission to the probation office in aid of sentencing,
arguing in part that the information may assist the government in
identifying victims and thereby assist the government in making its
best efforts to ensure that victims are notified of and afforded their
CVRA rights. The district court denied the motion, finding that the
submission is similar to a presentence report and that the government
did not overcome the presumption against disclosure of such information
by demonstrating a compelling, particularized need for disclosure.
Later in the same case, the government filed a motion requesting the
district court to reconsider its decision to exclude victim-witnesses
from the initial phase of the sentencing hearing after they have
testified, arguing that the court had received no evidence that the
testimony of the victim-witnesses would be materially altered if they
heard other testimony. The district court granted the motion without
opinion, allowing the victim-witnesses to attend the hearing;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: United States v. BP Products North America Inc., No. 4:07-cr-434,
2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008) (order denying
motion);
Case summary: Crime victims filed a motion requesting the U.S. District
Court for the Southern District of Texas to reject a plea agreement
because their CVRA rights had been violated. The district court found
proper the district court's prior ruling granting permission to the
government to delay notifying victims and conferring with victims about
plea negotiations until after the plea agreement had been reached,
under the CVRA provision that authorizes the court to fashion a
reasonable alternative to give effect to the CVRA when the number of
crime victims makes it impracticable to afford all of them the CVRA
rights;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The reasonable right to confer with the prosecutor;
The right to be treated with fairness and with respect for dignity and
privacy.
Case: In re Dean, No. 08-20125 (5th Cir. May 7, 2008);
Case summary: Crime victims in United States v. BP Products filed a
petition for a writ of mandamus, requesting that the U.S. Court of
Appeals for the Fifth Circuit order the U.S. District Court for the
Southern District of Texas to reject the plea agreement because of CVRA
violations. The court of appeals, applying the writ of mandamus
standard of review, found that the victims' rights had been violated,
as the court should have fashioned a reasonable way to inform victims
of the likelihood of criminal charges and to ascertain the victims'
views on the proposed plea agreement before the plea agreement was
reached. However, the court of appeals declined to issue a writ of
mandamus, finding that such a writ was not appropriate under the
circumstances because victims were able to participate in the
sentencing hearing and the district court would be able to consider
their objections before deciding whether to accept the plea agreement;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The reasonable right to confer with the prosecutor;
The right to be treated with fairness and with respect for dignity and
privacy.
Sixth Circuit:
Case: United States v. Gallion, No. 07-39 (E.D. Ky. Aug. 14, 2007)
(order denying motion); United States v. Gallion, No. 07-39 (E.D. Ky.
Aug. 20, 2007) (order sua sponte);
Case summary: In a case involving charges of conspiracy to commit wire
fraud with approximately 440 victims, the government filed a motion
requesting that the U.S. District Court for the Eastern District of
Kentucky authorize the government to provide notice to the victims by
an initial letter that informs victims about the VNS Web site and call
center, under the CVRA provision that authorizes the court to fashion a
reasonable alternative to give effect to the CVRA when the number of
crime victims makes it impracticable to afford all of them the CVRA
rights. The district court denied the motion, stating that the victims
are entitled to the full extent of notice provided by statute and that
the proposed alternatives may be inadequate to ensure complete and
timely notice. Later in the case, the district court, concerned about
the victims' right to proceedings free from unreasonable delay and
right to restitution, found that if the proceedings were to be
continued, as requested by the defendant and government, it would be
necessary for the court to revoke the defendant's bond. After appeals
had been filed, the district court set aside its revocation order and
deferred the hearing until the appeal had been decided;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right to full and timely restitution, as
provided in law; The right to proceedings free from unreasonable delay.
Case: United States v. Merkosky, 1:02-cr-0168, 2008 WL 1744762 (N.D.
Ohio Apr. 11, 2008) (order denying motion);
Case summary: A convicted defendant filed a motion asserting that he
was a victim of several federal offenses and requesting that he be
declared a crime victim under the CVRA. The U.S. District Court for the
Northern District of Ohio denied the motion, finding that the defendant
failed to establish that he had been denied any CVRA right and that the
law prevents a person accused of the crime from obtaining any relief
under the CVRA;
CVRA right asserted or discussed: None.
Case: United States v. Stokes, No. 3:06-00204, 2007 WL 1849846 (M.D.
Tenn. June 22, 2007) (order granting motion);
Case summary: In a case involving an alleged embezzlement scheme with
an estimated 35,000 victims, the government filed a motion requesting
that the U.S. District Court for the Middle District of Tennessee
authorize the government to provide notice to victims by proxy and by
publication, under the CVRA provision that authorizes the court to
fashion a reasonable alternative to give effect to the CVRA when the
number of crime victims makes it impracticable to afford all of them
their CVRA rights. The district court granted the motion, finding that
it would be impracticable to identify and notify all of the potential
victims and that the proposed means of notification were reasonable;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Seventh Circuit:
Case: United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005)
(order denying motion);
Case summary: The government requested that a crime victim be permitted
to offer an oral statement opposing the release of the defendants at a
detention hearing. The U.S. District Court for the Northern District of
Illinois denied the motion, finding that because the CVRA provision
providing that victims have the "right to be reasonably heard" includes
a reasonableness requirement and a legal term of art (to be heard), it
does not require courts to allow oral statements, particularly when the
victim's statement is not material to the decision at hand;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: United States v. Croteau, No. 05-cr-30104 (N.D. Ill. Mar. 16,
2006) (order granting motion); United States v. Croteau, No. 05-cr-
30104, 2006 U.S. Dist. LEXIS 23684 (N.D. Ill. Apr. 27, 2006) (order
granting motion);
Case summary: In a case involving thousands of victims, the government
filed a motion requesting permission to send a one-time individualized
mailing to all of the victims and establish a Web site with information
about the case, under the CVRA provision that authorizes the court to
fashion a reasonable alternative to give effect to the CVRA when the
number of crime victims makes it impracticable to afford all of them
their CVRA rights. The U.S. District Court for the Northern District of
Illinois granted the motion. Later in the case, the government filed a
motion requesting permission to publish a scheduled change of plea
hearing on the Web site, noting that such publication may conflict with
a local rule prohibiting public disclosure of the possibility of a plea
of guilty or not guilty. The district court granted the motion, finding
that disclosure would not cause the harm that the local rule was meant
to prevent and that there was a strong interest in fulfilling Congress'
mandate to notify victims of court proceedings;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Case: United States v. Ballinger, No. 3:04-cr-0141, 3:05-cr-0002 (N.D.
Ind. Jan. 13, 2005) (order granting motion);
Case summary: In a case with over 1,000 victims, the government filed a
motion requesting that the U.S. District Court for the Northern
District of Illinois find that due to the large number of victims, it
was impracticable to afford them all of their rights by notifying them
prior to a plea hearing. The district court granted the motion, finding
that the number of victims made it impracticable to afford the victims
their notification rights, but provided that the government may notify
the victims as soon as practicable but prior to sentencing;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice.
Case: United States v. Koetz, No. 05-cr-234 (E.D. Wis. Mar. 13, 2006)
(order denying motion);
Case summary: The government filed a motion to reopen the sentencing
after it discovered that one of the victims had not been notified of a
schedule change and was not able to speak at the hearing, noting that
it would not seek a change in the sentence and that the defendant had
no objection to the reopening. The U.S. District Court for the Eastern
District of Wisconsin denied the motion;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: In re Oak Brook Bank, No. 06-2331 (7th Cir. May 12, 2006);
Case summary: The crime victim filed a petition for a writ of mandamus,
requesting that the U.S. Court of Appeals for the Seventh Circuit order
the U.S. District Court for the Northern District of Illinois to vacate
its order denying the victim standing under relevant restitution law to
object to the magistrate judge's recommendations regarding restitution.
The court of appeals denied the petition, finding that the district
court had not yet denied the victim any CVRA rights, as the court had
not yet made a final determination about restitution and had invited
all interested parties, including the victim, to file arguments
regarding who should be considered a victim;
CVRA right asserted or discussed: The right to full and timely
restitution, as provided in law.
Case: In re Sabbia, No. 07-1368 (7th Cir. Feb. 21, 2007);
Case summary: Petitioner filed a petition for a writ of mandamus
asserting that the Department of Justice had denied him CVRA rights
because three individuals had committed fraud against him through state
court proceedings. The U.S. Court of Appeals for the Seventh Circuit
denied the petition, finding that the filing was frivolous and
forbidding the petitioner from filing any further legal papers in the
circuit;
CVRA right asserted or discussed: Not known.
Eighth Circuit:
Case: United States v. Johnson, 362 F. Supp. 2d 1043 (N.D. Iowa 2005);
Case summary: The government filed a motion requesting that the U.S.
District Court for the Northern District of Iowa allow victims to
attend the trial. The district court granted the motion, citing the
CVRA provision that victims have a right not to be excluded from the
proceeding, unless the court finds that their testimony would be
materially altered by hearing the testimony of others, and finding that
the defendant had provided no evidence that the testimony of any of the
victims would be altered;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: United States v. L.M., 425 F. Supp. 2d 948 (N.D. Iowa 2006); Case
summary: In a juvenile case, the government filed a motion requesting
that the U.S. District Court for the Northern District of Iowa permit
the government to notify the victim of proceedings and to allow the
victim to attend any proceedings related to the case. The district
court granted the request to notify the victim of proceedings and
denied in part the request to attend proceedings, finding that the CVRA
provides the right to attend public court proceedings, that federal law
provides that district judges have discretion in determining whether
juvenile proceedings should be public, and that the upcoming transfer
hearing should be closed to the public;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right not to be excluded from public court
proceedings.
Ninth Circuit:
Case: United States v. Leichner, No. 2:03-cr-00568 (C.D. Cal. May 23,
2005); United States v. Leichner, No. 2:03-cr-00568 (C.D. Cal. June 19,
2006) (order denying motion);
Case summary: In a case with two defendants, victims spoke at the
sentencing hearing of the first defendant, and a victim requested to
speak at the sentencing of the second defendant. The U.S. District
Court for the Central District of California did not allow the victim
to speak, stating that the victim had spoken at the first sentencing
hearing and that nothing that the victim would say would have any
impact on the court's decision. Later in the case, the victim filed a
motion requesting access to the presentence report, and the district
court denied the motion;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006);
Case summary: The victim in United States v. Leichner filed a petition
for a writ of mandamus, requesting that the U.S. Court of Appeals for
the Ninth Circuit order the U.S. District Court for the Central
District of California to vacate the defendant's sentence and allow the
victim to speak at the defendant's resentencing. The court of appeals,
using the ordinary appellate standard of review, granted the petition,
finding that although the language of the CVRA providing the right to
be reasonably heard is ambiguous, an examination of the legislative
history supports an interpretation of the law that provides victims the
right to speak at sentencing hearings;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: In re Kenna, 453 F.3d 1136 (9th Cir. 2006);
Case summary: The victim in United States v. Leichner filed a petition
for a writ of mandamus, requesting that the U.S. Court of Appeals for
the Ninth Circuit order the U.S. District Court for the Central
District of California to release to the victim the presentence report.
The court of appeals denied the petition, holding that the district
court did not abuse its discretion or commit legal error when it found
that the CVRA did not confer a general right to disclosure of the
presentence report and that the victim did not show that his reasons
for disclosure outweighed the reasons for keeping the report
confidential;
CVRA right asserted or discussed: The right to be reasonably heard; The
right to full and timely restitution, as provided in law; The right to
fairness and to be treated with dignity and privacy.
Case: United States v. Mikhel, No. 02-cr-220 (C.D. Cal. June 13, 2006);
Case summary: The government requested that victims be allowed to
attend the trial, and the U.S. District Court for the Central District
of California denied the request, stating that victims who would be
testifying would not be allowed to attend the trial until after they
had testified;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: In re Mikhel, 453 F.3d 1137 (9th Cir. 2006);
Case summary: In response to the district court order in United States
v. Mikhel, the government filed a petition for a writ of mandamus,
requesting that the U.S. Court of Appeals for the Ninth Circuit order
the U.S. District Court for the Central District of California to
permit crime victims to attend the trial. The court of appeals granted
the petition in part and remanded to the district court to determine
whether clear and convincing evidence showed that the victims'
testimony would be materially altered by hearing the testimony of
others during the trial;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: United States v. Crompton Corp., 399 F. Supp. 2d 1047 (N.D. Cal.
2005);
Case summary: In response to a government motion to unseal a plea
agreement, the defendant filed a motion requesting that his name be
redacted from the plea agreement. The U.S. District Court for the
Northern District of California denied the defendant's motion, stating
that redacting the defendant's name would conceal information from the
victims and violate the CVRA;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: Williamson v. U.S. District Court for the Northern District of
California, No. 06-74584 (9th Cir. Sept. 29. 2006);
Case summary: Petitioner filed a petition for a writ of mandamus,
alleging crimes of multiple federal officials and seeking a broad range
of relief, including an injunction requiring respondents not to use
microwaves against him. The U.S. Court of Appeals for the Ninth Circuit
denied the petition, stating that the petitioner identified no order in
which a district court denied him rights under the CVRA;
CVRA right asserted or discussed: None.
Case: United States v. Lee, No. 01-cr-00132 (D. Haw. June 17, 2005)
(order denying motion);
Case summary: Crime victims, who were foreign nationals, filed a motion
requesting that the U.S. District Court for the District of Hawaii
order the government to authorize their entry to attend the sentencing
hearing. The district court denied the motion but provided that the
victims could submit their views to the court in writing and
participate in the hearing by telephone;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Case: United States v. Wood, No. 05-cr-00072 (D. Haw. July 17, 2006)
(order granting motion);
Case summary: The government filed a motion requesting to continue
sentencing so that the employees of a corporation that had been
defrauded by the defendant could attend and speak at the hearing. The
U.S. District Court for the District of Hawaii granted the motion,
finding that the employees were victims under the CVRA because although
the corporation was directly harmed, the individuals were proximately
harmed as a result of the fraud and that continuing the sentencing
would afford the victims their right to be reasonably heard and would
not unduly prolong the proceedings;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: United States v. Patkar, No. 06-cr-00250, 2008 WL 233062 (D. Haw.
Jan. 28, 2008) (order denying motion);
Case summary: The Associated Press, as intervenor, filed a motion
requesting to dissolve a stipulation and order between the government
and the defendant that sealed certain e-mails that formed the basis of
the extortion charge against the defendant. The U.S. District Court for
the District of Hawaii denied the motion, finding that the crime
victims' right to be treated with fairness and with respect for the
victim's privacy and dignity was sufficient good cause to limit
disclosure of the e-mails;
CVRA right asserted or discussed: The right to be treated with fairness
and with respect for dignity and privacy.
Case: United States v. W.R. Grace, 401 F. Supp. 2d 1057 (D. Mont.
2005); United States v. W.R. Grace, 408 F. Supp. 2d 998 (D. Mont.
2006);
Case summary: The defendant filed a motion to compel the government to
comply with rules regarding public statements, and the government
objected on the grounds that the statements were necessary to comply
with the CVRA. The U.S. District Court for the District of Montana
denied the motion, stating that the government was aware of the rules
regarding public statements and an order would be superfluous; the
court noted that although some of the government's statements were
arguably necessary to comply with the CVRA requirement to provide
timely notification of proceedings, others were not necessary under the
CVRA and subject to the rules governing such statements. Later in the
case, the defendant filed a motion for a change of venue, due to
pretrial publicity. The district court denied the motion, noting that
the CVRA provides victims with the right not to be excluded and
requires courts to make every effort to permit the fullest attendance
possible by the victims;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right not to be excluded from public court
proceedings.
Tenth Circuit:
Case: United States v. Degenhardt, 405 F. Supp. 2d 1341 (D. Utah 2005);
Case summary: The government notified the U.S. District Court for the
District of Utah that victims wanted to speak at the defendant's
sentencing hearing. The district court granted the request, finding
that the CVRA superseded the rule providing that only victims of crimes
of violence or sexual abuse may speak at sentencing. The district court
also stated that an examination of the legislative history of the act
supports a construction that requires courts to allow victims to
personally address the court during sentencing;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: United States v. Heaton, 458 F. Supp. 2d 1271 (D. Utah 2006);
Case summary: The government filed a motion to dismiss charges against
a defendant. The U.S. District Court for the District of Utah ordered
that the dismissal would not be approved by the court until the
government provided the court with the victim's views on the dismissal,
stating that the CVRA right to be treated with fairness and right to
confer with the prosecutor extended to the decision to dismiss;
CVRA right asserted or discussed: The reasonable right to confer with
the prosecutor; The right to be treated with fairness and with respect
for dignity and privacy.
Case: United States v. Wilson, 350 F. Supp. 2d 90 (D. Utah 2005);
Case summary: The U.S. District Court for the District of Utah declined
to delay sentencing to ponder a decision that the Supreme Court had
made the previous day on the Federal Sentencing Guidelines, finding
that the sentencing had already been delayed and crime victims have a
right to proceedings free from unreasonable delay;
CVRA right asserted or discussed: The right to proceedings free from
unreasonable delay.
Case: United States v. Hunter, No. 2:07-cr-307, 2008 WL 53125 (D. Utah
Jan. 3, 2008) (order denying motion); United States v. Hunter, No. 2:07-
cr-307, 2008 WL 110488 (D. Utah Jan. 8, 2008); United States v. Hunter,
No. 2:07-cr-307, 2008 WL 153785 (D. Utah Jan. 14, 2008);
Case summary: In a case in which the defendant pleaded guilty to
unlawfully selling a handgun to a juvenile, the family of the victim
who was shot and killed by the recipient of the handgun filed a motion
requesting that they be considered victims under the CVRA. The U.S.
District Court for the District of Utah denied the motion, finding that
the victim was not directly and proximately harmed as a result of the
offense, as the sale of the firearm to the juvenile and the shooting of
the victim 8 months later were "too factually and temporally
attenuated" and the shooter's conduct was an intervening factor that
broke the chain of causation. Later in the case, the victims filed a
motion requesting the district court to compel the government to
disclose information supporting their position that they were crime
victims under the CVRA or to release grand jury documents on the
subject. The district court denied the motion, stating that if Congress
had intended to afford members of the public access to prosecution
files to determine their victim status, it would have stated so clearly
in the law, and that the victims have not demonstrated that their need
for grand jury documents outweighs the interests in maintaining grand
jury secrecy. The victims filed a subsequent motion requesting the
district court to reconsider its decision on the prosecution
information and requesting a stay of the sentencing. The district court
denied the motion, relying on the CVRA provision providing that in no
event shall proceedings be stayed or subject to a continuance of more
than 5 days for the purposes of enforcing this chapter and stating that
the victims may be able to reopen the sentence if the court of appeals
determined that they were victims under the CVRA because they had
asserted their rights in the district court and had petitioned for a
writ of mandamus within 10 days;
CVRA right asserted or discussed: The right to be reasonably heard; The
right to full and timely restitution, as provided in law.
Case: In re Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008);
Case summary: The purported victims in United States v. Hunter filed a
petition for a writ of mandamus requesting that the U.S. Court of
Appeals for the Tenth Circuit direct the U.S. District Court for the
District of Utah to recognize them as victims under the CVRA. The court
of appeals denied the petition, under the writ of mandamus standard of
review, finding that the area of law regarding whether a sale of a gun
to a minor is a proximate cause of any injury to a third person is not
well-developed and that it could not say that the district court was
clearly wrong in its decision;
CVRA right asserted or discussed: The right to be reasonably heard; The
right to full and timely restitution, as provided in law.
Case: In re Antrobus, No. 08-4013 (10th Cir. Feb. 1, 2008);
Case summary: The purported victims in United States v. Hunter filed a
petition for a writ of mandamus requesting that the U.S. Court of
Appeals for the Tenth Circuit order the U.S. District Court for the
District of Utah to require the government to certify whether it had
information to support their position that they should be recognized as
victims under the CVRA and to release such information from the grand
jury transcript and government files. The court of appeals denied the
petition, under the writ of mandamus standard of review, finding that
the district court had not clearly abused its discretion in denying the
purported victims' motion;
CVRA right asserted or discussed: The right to be treated with fairness
and with respect for dignity and privacy.
Case: United States v. Kaufman, No. 04-40141, 2005 WL 2648070 (D. Kan.
2005);
Case summary: A television station filed a motion requesting that
sketch artists be allowed in the courtroom during a trial, and the
victims did not oppose the motion but requested that the sketch artists
not be allowed to sketch the faces of the victims. The U.S. District
Court for the District of Kansas granted the motion and ordered that
the sketch artists not be allowed to sketch the faces of the victims,
stating that the CVRA right to be treated with fairness and with
respect for the victims' dignity and privacy requires such
restrictions;
CVRA right asserted or discussed: The right to be treated with fairness
and with respect for dignity and privacy.
Eleventh Circuit:
Case: In re Jane Doe, No. 08-80736 (S.D. Fla. July 7, 2008) (victim
petition);
Case summary: In a case in which the defendant had pleaded guilty to
several charges in a state court and the federal government was engaged
in plea negotiations with the accused that may have deferred federal
prosecution, the victim filed a petition requesting that the U.S.
District Court for the Southern District of Florida ensure that the
government respect her CVRA rights, including the right to confer
regarding the plea agreement. The district court has not yet decided
this case;
CVRA right asserted or discussed: The reasonable right to confer with
the prosecutor.
Case: United States v. Williams, No. 1:06-cr-313 (N.D. Ga. Jan. 8,
2007);
Case summary: The corporate victim filed a motion requesting an
appearance to respond to the defendant's motion requesting to interview
the victim's employees, asserting the CVRA rights to be protected from
the accused and to be treated with fairness. The U.S. District Court
for the Northern District of Georgia denied the motion;
CVRA right asserted or discussed: The right to be reasonably protected
from the accused; The right to be treated with fairness and with
respect for dignity and privacy.
Case: In re Searcy, No. 06-14951 (11th Cir. Sept. 15, 2006);
Case summary: Petitioner filed a petition for a writ of mandamus
seeking an injunction against multiple companies and the Attorney
General to prohibit them from using certain software. The U.S. Court of
Appeals for the Eleventh Circuit dismissed the complaint, finding that
the U.S. District Court for the Middle District of Florida had not
abused its discretion in dismissing the petitioner's claim on the
grounds of res judicata;
CVRA right asserted or discussed: None.
Case: In re Miller, No. 06-15182 (11th Cir. Sept. 28, 2006);
Case summary: Petitioner filed a petition for a writ of mandamus
complaining of the actions of a communications company and requesting
restitution from the company. The U.S. Court of Appeals for the
Eleventh Circuit denied the petition, stating that it doubted that the
CVRA applied to the petitioner's claims, and even if the CVRA did
apply, relief such as directing an investigation and providing
restitution is not available via mandamus;
CVRA right asserted or discussed: None.
District of Columbia Circuit:
Case: United States v. Gooch, No. 04-128-23, 2006 WL 3780781 (D.D.C.
Dec. 20, 2006);
Case summary: The government requested that victims of the defendant's
noncapital offenses be able to speak at the penalty phase of the
defendant's capital trial. The U.S. District Court for the District of
Columbia denied the request, finding that the Federal Death Penalty Act
authorizes victim impact information only from victims of the capital
offenses and that the victims of the noncapital offense did not have an
independent right under the CVRA to be heard at the penalty phase for
the capital offenses because the right to be heard only includes
proceedings involving offenses against the crime victim;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: In re Jacobsen, No. 05-7086, 2005 U.S. App. LEXIS 13990 (D.C.
Cir. July 8, 2005);
Case summary: The victim in United States v. Hall, a case in the D.C.
Superior Court, filed a petition for a writ of mandamus requesting that
the U.S. Court of Appeals for the District of Columbia Circuit direct
the D.C. Superior Court to reopen the plea and provide victims with
reasonable notice and opportunity to be heard before accepting the
plea. The court of appeals denied the petition as moot, stating that
the D.C. Superior Court had not yet accepted the plea agreement;
CVRA right asserted or discussed: The right to reasonable, accurate,
and timely notice; The right to be reasonably heard.
Case: Sieverding v. American Bar Assoc., No. 07-5126, 2007 U.S. App.
LEXIS 13756 (D.C. Cir. June 8, 2007);
Case summary: Petitioners filed a petition for a writ of mandamus,
requesting to be declared victims of extortion, witness intimidation,
and related federal crimes. The U.S. Court of Appeals for the District
of Columbia Circuit denied the petition, stating that the individuals
failed to first file a motion with the district court and that the
petitioners' allegations do not show that they qualify as crime victims
under the CVRA;
CVRA right asserted or discussed: The right to be reasonably protected
from the accused; The right to be treated with fairness and with
respect for dignity and privacy.
D.C. Superior Court:
Case: Transcript of Record, United States v. Mack, No. 2004-FEL-6798
(D.C. Super. Ct. Aug. 30, 2006);
Case summary: During a plea hearing, the government informed the D.C.
Superior Court that the victim's family wanted to address the court
regarding the plea agreement. The D.C. Superior Court denied the
request, stating that it was not bound by the CVRA, but noted that the
victims would be allowed to speak at the sentencing hearing;
CVRA right asserted or discussed: The right to be reasonably heard.
Case: Transcript of Record, United States v. Blades, No. 2006CF114741
(D.C. Super. Ct. Mar. 26, 2008);
Case summary: The victim-witness filed a motion requesting to be
allowed to attend the trial of the defendant. The D.C. Superior Court
granted the motion, finding that there was no evidence that suggested
that the victim-witness' testimony would be materially altered after
hearing other testimony;
CVRA right asserted or discussed: The right not to be excluded from
public court proceedings.
Source: GAO analysis of court cases in which the CVRA was raised.
[A] Cases in which the court did not base its decision on the CVRA were
not included. We conducted our final electronic search on June 30,
2008. The cases included are those that were available in legal
databases as of that date.
[End of table]
[End of section]
Appendix V: References to Adherence with Victims' Rights Requirements
in DOJ Work Plans and Performance Appraisals:
Table 20: Examples of References to Victim-Related Responsibilities in
Performance Appraisals and Work Plans of Investigators, Attorneys, and
Other DOJ Staff Positions:
DOJ component: Alcohol Tobacco and Firearms;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Agents;
According to the ATF, they are "...in the process of placing critical
elements into the Bureau's performance appraisals for special agents,
supervisors, and other appropriate personnel that will include the
evaluation of their adherence or non-adherence with the victims' rights
and witnesses' services provisions."
DOJ component: Federal Bureau of Investigation;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Special
Agents and Victim Specialists; Standard performance appraisal records
for special agents and victim specialists do not include references to
victims' rights.
DOJ component: Drug Enforcement Administration;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Agents;
According to the DOJ, the "DEA plans to incorporate the Victim Witness
reference in investigators' workplans by the end on the second quarter
of FY 09."
DOJ component: Executive Office of the U.S. Attorneys' Offices;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights:
Assistant United States Attorneys; From the performance work plan and
appraisal record:
* "As necessary, communicates pertinent information to and consults
with supervisors, agencies, victims, and others."
DOJ component: Antitrust Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights:
Attorneys; From the performance work plan:
* "Routinely identifies victims of crime in assigned matters and
provides them with appropriate victim services";
* "Notifies as appropriate both victims and witnesses of their rights
under federal law and Attorney General Guidelines for Victim and
Witness Assistance and provides such rights within one week as needed
or requested. Keeps victims/witnesses appropriately informed as to the
status of the investigation, litigation, and sentencing. Consults with
them as appropriate concerning charging and plea decisions, restitution
rights, and appropriate litigation decisions."
DOJ component: Tax Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Trial
Attorneys; From the performance appraisal record:
* "Handling of cases and other assignments including awareness of and
adherence to Department guidelines and policies with respect to victim
and witness protection, including the Attorney General's Guidelines on
Victim and Witness Assistance."
DOJ component: Environmental and Natural Resources Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights:
Attorneys; From the performance work plan:
* "Uses best efforts to afford victims their legal rights in compliance
with Department policy by identifying victims of crimes, in cooperation
with investigators; informing victims of case events, in cooperation
with victim/witness coordinators at U.S. Attorney's Offices; consulting
with victims if requested; seeking appropriate restitution; and
informing victims of victim impact statement options prior to
sentencing."
DOJ component: Civil Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Trial
Attorneys; From the performance work plan:
* "Communicates and coordinates with witnesses and victims of crime,
clients, Justice Department Personnel, and others";
* "Keeps witnesses and victims of crime, clients, and other appropriate
individuals informed of the status of litigation and relevant
developments in a timely manner."
DOJ component: Civil Rights Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Trial
Attorneys; From the performance plan agreement:
* "Complies fully with statutory and Departmental rules regarding
victims."
DOJ component: Criminal Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights:
Associate Deputy Chiefs; From the performance work plan and appraisal
record:
* "Complies with the Attorney General's guidelines on Victim Witness
issues";
* "Interacts with superiors, co-workers, support staff and members of
the public (victim and witnesses) in a constructive manner concerning
victim witness issues";
* "Ensures that the rights and needs of victims are appropriately
addressed by Fraud Section personnel by, among other things, supporting
the implementation of related policies";
* "Ensures that the rights and needs of crime victims and witnesses are
upheld. Provide necessary victim information to the coordinator/liaison
in a timely fashion";
* "Supervises and supports the Fraud Section's requirement in mentoring
and training new employees with information concerning Criminal
Division's obligation as to the rights of victims of crime as it
pertains to individual components."
DOJ component: National Security Division;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Trial
Attorney, Chief of the Counterterrorism Section; From the performance
work plan:
* Ensures that the rights and needs of victims are appropriately
addressed by Counterterrorism Section personnel;
* Goals include ensuring that victim-witness issues are addressed in
Counterterrorism Section cases. Measures include description of efforts
to (1) develop and expand training and educational opportunities in
order to improve emergency response procedures and systems and (2)
ensure that the rights and needs of victims are appropriately addressed
by CTS personnel;
According to an NSD official, victim-related responsibilities will be
incorporated into the performance work plans for trial attorneys in the
Counterterrorism Section and all Office of Justice for Victims of
Overseas Terrorism staff.
DOJ component: Bureau of Prisons;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Managers
and Department Heads; From the performance appraisal record, their
performance may be rated "outstanding" if the official:
* "Create(s) procedures to implement, monitor, and evaluate the
practices/procedures associated with the Attorney General's
victim/witness guidelines";
Office Support Staff; From the performance appraisal record, their
performance may be rated "outstanding" if the official:
* "Create(s) innovative forms of implementing, monitoring, and
evaluating the practices/procedures associated with the Attorney
General's victim/witness service guidelines in accordance with current
policies and procedures."
DOJ component: U.S. Marshal Service;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights:
According to the USMS, "USMS does not currently address victim-related
responsibilities in performance work plans. However, procedures are
being updated to include these responsibilities in performance work
plans where appropriate. It is anticipated that we will have this
accomplished, as directed by OPM, by June 2009."
DOJ component: U.S. Parole Commission;
Excerpts and descriptions of staff performance appraisals and work
plans related to providing federal crime victims their rights: Hearing
Examiners; From the performance plans - successful elements include:
* "Consistently works with the Victim/Witness Section to ensure that
victims/witnesses are provided with the right to participate in the
hearing process including the right to be reasonably heard at any
parole proceeding";
Post Release Analysts, Pre Release Analysts, Case Service Assistants,
and Victim-Witness Coordinators; From the performance plans -
successful elements include:
* "Consistently works to protect the privacy rights of victims/
witnesses including removing/redacting any personal information
regarding victims that is confidential and ensuring that any personal
information regarding a victim is not discussed with any parties that
do not have the need to know such information."
Source: GAO analysis performance appraisals and work plans for DOJ
staff positions.
[End of table]
[End of section]
Appendix VI: Comments from the Department of Justice:
U.S. Department of Justice:
Washington, D.C. 20530:
November 26, 2008:
Ms. Eileen R. Larence:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
Washington, DC 20510-1501:
Re: Government Accountability Office Draft Report GAO-09-54:
Dear Ms. Larence:
Thank you for the opportunity to review the Government Accountability
Office (GAO) draft report entitled Crime Victims ' Rights Act:
Increasing Awareness, Modifying the Complaint Process, and Enhancing
Compliance Monitoring Will Improve Implementation of the Act. The draft
report recognizes that since its enactment the Department of Justice
(Department) has taken a number of steps to implement and ensure
compliance with the Crime Victims' Rights Act (CVRA, or the Act),
codified at 18 U.S.C. §3771. The draft report acknowledges that, for
example, the Department has revised its internal guidelines on
providing victim assistance, conducted training for employees on both
the revised guidelines and the CVRA, and created a process to examine
victim complaints against its employees. The draft report also makes
several recommendations designed to improve compliance with the Act.
With respect to the Department, the draft report recommends that the
Attorney General take steps to ensure that victims are more aware of
the enforcement mechanisms available to them to assert their CVRA
rights in court, and the complaint process afforded to them if they
believe their rights have been violated by a Department employee. The
draft also recommends that the complaint process be restructured to
ensure independence and impartiality during the investigation phase.
The draft recommends that the Department identify suitable performance
measures to evaluate how fully and well victims are being accorded
their rights and services, and uniform information reporting
requirements focused on component compliance. Finally, the draft report
recommends that the Federal Bureau of Investigation (FBI) make
adherence to victims' rights a formal part of its agents' work plans
and performance appraisals.
The comments below address the draft report's recommendations as well
as language that should be clarified or modified to more accurately
reflect the Department's views. As an initial matter, however, we note
that the Department intends to convene a working group comprising
representatives from its components with victim-related
responsibilities for purposes of considering the recommendations
contained in the final GAO report. Those recommendations are likely to
have value but, for the reasons articulated below, the extent and
manner in which they are implemented requires input from the affected
components.
With respect to GAO's first recommendation, the draft report
acknowledges that neither the CVRA nor the existing Attorney General
Guidelines for Victim and Witness Assistance (the Guidelines) require
Department components to inform victims of their ability to file
motions or petitions for writs of mandamus to enforce their rights, and
their ability to submit complaints against Department employees for
alleged violations of the CVRA. Nevertheless, the draft report
recommends that Department components with victim-related
responsibilities be directed by the Attorney General to explore ways to
increase victim awareness of these potential remedies. We agree that
victims should be well informed about the various enforcement
mechanisms available to them under the CVRA, and about their right to
initiate complaints against Department employees. We intend to take
steps to enhance victim awareness of these rights. In deciding which
steps are most appropriate, the working group will consider a number of
options, including those mentioned in the report.
With regard to GAO's recommendation that the complaint process be
restructured, the working group will consider that as well. We
recognize the salutary benefits of an investigation process that avoids
both actual and apparent bias. Removing responsibility for conducting
initial complaint investigation from the local office, however, has
drawbacks. Principal among them is the additional delay it will almost
certainly impose upon the process. We continue to believe that
addressing a complaint at a point when a victim whose rights have been
violated may still have time to exercise them is at least as important
as punishing the violation.
As a result, in consultation with the Victim's Rights Ombudsman (VRO),
we intend to explore several options that will minimize the risk of
actual bias and ameliorate the perception of partiality, without
sacrificing speed. It may be inadvisable, moreover, to fashion a one-
size-fits-all remedy. What works in a large U.S. Attorney's Office
(USAO) may not work in a small one. What works in a litigation division
at Main Justice may not work in a USAO. What works best for complaints
against prosecutors may not work well for complaints against employees
of investigative or corrections components. In considering possible
options the working group will examine whether initial complaint
investigations can be done effectively by using telecommunications
technology rather than in-person interviews.
Although we are committed to re-examining this issue, we do disagree
with GAO's decision to evaluate the VRO-administered complaint
investigation process by referring to outside standards generally
applicable to Ombudsmen, or practices used by other investigative
bodies. First, unlike the Office of Professional Responsibility (OPR),
the VRO has no staff of full-time investigators at her disposal. She
must, by necessity, rely upon employees for whom the complaint
investigation process is a collateral duty. Also unlike OPR, the VRO
has no budget for investigation-related travel. Finally, and as we
described to the GAO auditors during the review, the VRO is not an
Ombudsman in the manner envisioned by either the Governmental Ombudsman
Standards or the American Bar Association's Standards for the
Establishment and Operation of Ombuds Offices. The VRO is a Department
employee appointed by the Attorney General, who also has operational
and administrative control over the programs that are subject to the
VRO's jurisdiction. The VRO's defined functions, moreover, do not match
those of a classic Ombudsman. The VRO does not have authority, for
example, to mediate complaints between victims and DOJ employees.
Instead, the VRO determines whether a victim's CVRA rights have been
violated by a Department employee, and if so recommends either training
or discipline for the employee. The responsibility to resolve victim
complaints and implement VRO recommendations remains with the
employee's local office.
The draft report discusses the use of employee work plans as a means of
evaluating whether individuals are complying with their obligations
under the CVRA. In so doing, the draft report should clarify both what
the Guidelines require and what responsible Department components have
done and are doing to comply with those requirements.
Employee work plans (a generic term used here to encompass all written
records of employee performance) are put in place each year for each
employee, and individual performance is evaluated at the end of the
rating period based upon how well an employee has performed the tasks
identified in his or her work plan. The Guidelines dictate, moreover,
that work plans for "each appropriate" Department employee include
reference to the employee's obligations under the CVRA and the
Guidelines, so that their performance in meeting those obligations will
be part of their annual review. At several places, however, the draft
report suggests that some reference to the CVRA is or soon will be part
of every work plan for every employee within all but one of the many
Department components with victim-related responsibilities. And, in
particular, the draft report indicates that the Executive Office for
United States Attorneys (EOUSA) has already incorporated references to
the Guidelines in all non-supervisory Assistant U.S. Attorney (AUSA)
work plans, and will incorporate such references into the 2009 work
plans for supervisory AUSAs.
In fact, the Department believes that work plan references to the CVRA
and the Guidelines are only required and desirable for "appropriate"
employees, that is, for employees whose job actually entails victim-
related responsibilities. The fact that a Department component has
victim-related responsibilities does not mean that all of its employees
have such responsibilities, and it is contrary to sound personnel
management principles to encumber an employee's work plan with tasks he
or she is not expected or likely to perform.
Similarly, EOUSA creates model work plans and makes them available to
the field, but EOUSA does not dictate their use. Within some broad
parameters, each USAO is free to put work plans in place for its
employees that most accurately describe an employee's actual duties. As
a result, it's likely that USAOs have employee work plans in place
(including for non-supervisory AUSAs) that appropriately make no
mention of the CVRA or the Guidelines. EOUSA will provide model work
plan language for 2009 for Supervisory AUSAs whose duties include
direct or supervisory victim-related responsibilities. However, as long
as it complies with the Guidelines requirement, each USAO will remain
free to use that language, some other language, or in appropriate
situations no language at all.
The draft report singles out the FBI as the lone Department component
that has yet to adequately commit to incorporating CVRA compliance in
the work plans of all employees with victim-related responsibilities.
After reviewing the draft report, however, the FBI has agreed to
revisit its position.
The draft report recommends that the Department establish performance
measures to gauge whether the Department, as a whole, is meeting its
stated goal of ensuring that victim participation in the criminal
justice system is consistent with the CVRA. At the same time, GAO
acknowledges that objective measurements are difficult to define. The
raw number of Victim Notification System (VNS) letters mailed each year
is a measure of effort, but may say little about effectiveness. In
fact, because VNS is not used by all Department components (e.g., ATF)
with victim-related responsibilities, it has significant limitations as
a Department-wide performance measure. So too, victim attendance at
public court proceedings is impossible to track with any degree of
accuracy.
Nevertheless, we agree that Department-wide performance measures are
important, and the working group will consider a variety of
possibilities in making recommendations to the Attorney General. We
believe this process will also assist the Office of Victims of Crime in
assessing component compliance with the Guidelines.
Our final comment focuses on GAO's recognition that there can be
tension between the interests of the victim and the interests of the
United States in a particular prosecution. The draft report describes,
for example, a situation where a victim's presence at a plea hearing
for a cooperating defendant could undermine what the report refers to
as a successful prosecution. There is no single test for what
constitutes a successful prosecution. We believe Congress appreciated
this tension, and addressed it by allowing victims to assert their
rights in court - with or without counsel of their choosing -
independent of the prosecutor. The appropriate balance between the
interests of the United States, the victim's rights under the CVRA, and
the defendant's rights must then be struck by the court.
We appreciate the substantial time and effort involved in GAO's
examination of the CVRA and the manner in which it has been implemented
by the Department and the courts. Thank you, again, for the opportunity
to provide comments on the report.
Sincerely,
Signed by:
Lee J. Lofthus:
Assistant Attorney General for Administration:
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgements:
GAO Contact:
Eileen Larence, (202) 512-6510 or larencee@gao.gov:
Acknowledgments:
In addition to the contact named above, Kristy Brown, Assistant
Director, managed this assignment.
Lisa Berardi Marflak, David Schneider, Matthew Shaffer, and Johanna
Wong made significant contributions to the work.
Tracey King provided significant legal support and analysis.
David Alexander, Stuart Kaufman, Carl Barden, and Minette Richardson
provided significant assistance with design and methodology, as well as
the analysis of survey results.
Adam Vogt provided assistance in report preparation.
Amber Edwards, Benjamin Jordan, and Jessica Wintfeld made contributions
to the work during the preliminary phase of the review.
[End of section]
Related GAO Products:
Human Trafficking: A Strategic Framework Could Help Enhance the
Interagency Collaboration Needed to Effectively Combat Trafficking
Crimes. [hyperlink, http://www.gao.gov/products/GAO-07-915].
Washington, D.C.: July 26, 2007.
Services Provided to Victims of Domestic Violence, Sexual Assault,
Dating Violence, and Stalking. [hyperlink,
http://www.gao.gov/products/GAO-07-846R]. Washington, D.C.: July 19,
2007.
Identity Theft: Some Outreach Efforts to Promote Awareness of New
Consumer Rights Are Under Way. [hyperlink,
http://www.gao.gov/products/GAO-05-710]. Washington, D.C.: June 30,
2005.
Criminal Debt: Court-Ordered Restitution Amounts Far Exceed Likely
Collections for the Crime Victims in Selected Financial Fraud Cases.
[hyperlink, http://www.gao.gov/products/GAO-05-80]. Washington, D.C.:
January 31, 2005.
[End of section]
Footnotes:
[1] Pub. L. No. 108-405, 118 Stat. 2260 (2004).
[2] Relief is a generic term for all types of benefits or redress that
a party asks of a court.
[3] Most motions must include a written statement of the relief sought
and the grounds for seeking the relief. The motion must be served on
all parties, and a judge may hold a hearing for oral arguments on the
motion. During a trial or a hearing, an oral motion may be permitted.
[4] A writ of mandamus is an order from a higher court directing a
lower court to perform a specified action.
[5] Nonprobability sampling is a method of sampling where observations
are selected in a manner that is not completely random, generally using
specific characteristics of the population as criteria. Results from a
nonprobability sample cannot be used to make inferences about an entire
population because some elements of the population being studied had no
chance or an unknown chance of being selected as part of the sample.
[6] VNS only maintains records of notification letters for 30 days.
[7] We did not review the three additional complaints received by the
VRO during this time period because the complaints were still under
investigation and the VRO had yet to make a determination regarding
them.
[8] 28 C.F.R. § 45.10.
[9] The ombudsman standards against which we compared DOJ's victim
complaint process include United States Ombudsman Association,
Governmental Ombudsman Standards, (Dayton, OH: October 2003) and
American Bar Association, Revised Standards for the Establishment and
Operation of Ombuds Offices (February 2004). The other offices that
conduct similar investigations as the VRO include DOJ's Office of
Professional Responsibility and state offices that review victim
complaints located in Alaska, Arizona, Connecticut, Colorado, Maryland,
Minnesota, South Carolina, and Wisconsin.
[10] In re Dean, No. 08-20125 (5th Cir. May 7, 2008).
[11] The District of Columbia Superior Court handles all local trial
matters in the District of Columbia.
[12] Pub. L. No. 97-291, 96 Stat. 1248 (1982).
[13] Pub. L. No. 98-473, ch. XIV, 98 Stat. 1837 (1984).
[14] Pub. L. No. 101-647, tit. V, 104 Stat. 4789 (1990).
[15] Pub. L. No. 103-322, 108 Stat. 1796 (1994).
[16] Pub. L. No. 104-132, tit. II, 110 Stat. 1214 (1996).
[17] Pub. L. No. 105-6, 111 Stat. 12 (1997).
[18] Pub. L. No. 108-405, tit. I, 118 Stat. 2260 (2004). The federal
government has passed other laws that provide benefits and services to
certain classes of crime victims including the Trafficking Victim
Protection Act (for victims of human trafficking crimes) and the
Justice for Victims of Terrorism Act (for victims of terrorism). Pub.
L. No. 106-386, 114 Stat. 1464 (2000); Pub. L. No. 104-132, 110 Stat.
1214 (1996).
[19] Pub. L. No. 101-647, § 502, 104 Stat. 4789, 4820 (1990), repealed
by Pub. L. No. 108-405, § 102(c), 118 Stat. 2260, 2264 (2004). The
rights listed in the 1990 law included: (1) the right to be treated
with fairness and with respect for the victim's dignity and privacy;
(2) the right to be reasonably protected from the accused offender; (3)
the right to be notified of court proceedings; (4) the right to be
present at all public court proceedings related to the offense, unless
the court determines that testimony by the victim would be materially
affected if the victim heard other testimony at trial; (5) the right to
confer with the attorney for the government in the case; (6) the right
to restitution; and (7) the right to information about the conviction,
sentencing, imprisonment, and release of the offender.
[20] Id. at § 503, 104 Stat. 4820-22 (codified at 42 U.S.C. § 10607).
[21] Pub. L. No. 108-405, 118 Stat. 2260 (2004).
[22] Id. at § 102(a) (codified at 18 U.S.C. § 3771(a)).
[23] 18 U.S.C. § 3771(f).
[24] 28 C.F.R. § 45.10.
[25] 18 U.S.C. § 3771(d)(3).
[26] 18 U.S.C. § 3771(d)(5).
[27] 18 U.S.C. § 3771(c)(1).
[28] 18 U.S.C. § 3771(c)(2).
[29] The NAC is operated by EOUSA and is used to train federal, state,
and local prosecutors and litigators in advocacy skills and management
of legal operations.
[30] Magistrate judges are judicial officers appointed by the district
court to serve for 8-year terms. Their duties include, among other
things, conducting most of the initial proceedings in criminal cases
(including search and arrest warrants and detention hearings), trying
most criminal misdemeanor cases, and conducting a wide variety of other
proceedings referred to them by district judges.
[31] National Sentencing Policy Institutes are biennial meetings of
federal judges, prosecutors, defense attorneys, and probation officers.
These meetings feature panel discussions and presentations on current
sentencing issues.
[32] The challenges we identify in this section are based on
information we obtained from our site visits to nine federal judicial
districts, where we met with a number of USAO and federal investigative
staff and court officials. Not all of the officials with whom we met
identified each of these factors as an impediment to CVRA
implementation, in part because some of the challenges, such as those
involving victims who live on Indian reservations are not relevant to
all offices. Therefore, our intent is not to focus on the pervasiveness
of these challenges; rather, as CVRA implementation continues, and as
other DOJ offices and federal courts may encounter these same
challenges, this section is intended to inform the reader of efforts
that have been made in the past to overcome them.
[33] Five of the nine USAOs we visited have Indian reservations within
their jurisdiction.
[34] FBI Legal Attaché offices work to combat crime, such as terrorism,
internationally by working with their foreign counterparts and by
covering international leads for domestic U.S. investigations.
[35] This average was based on responses from the 45 percent of USAO
victim-witness professionals who reported in our survey as working
additional hours as a result of CVRA requirements.
[36] CM/ECF is the federal courts' electronic case management and
filing system and, as such, contains the schedule of court proceedings,
as well as information about motions, court orders and parties.
[37] The system is currently configured such that USAO victim-witness
personnel have to manually transfer case scheduling information from
CM/ECF to the USAOs' case management system--the Legal Information
Office Network System (LIONS). Schedule information from LIONS is then
automatically uploaded to VNS daily.
[38] We calculated the ratio of cases per victim-witness personnel in
each USAO by dividing the total number of victim-related cases (sex
crimes, violent crimes, identity theft, etc.) filed by the USAO between
March 2006 and March 2007 by the total number of victim-witness
personnel in the USAO as of April 2008. We based our calculations on
victim-related cases because they are generally the cases with which
victim-witness personnel would be involved. In addition, we recognize
that the number of victim-witness personnel in each office as of April
2008 may differ from the number in each office as of March 2007;
however, at the time of our review, data on the number of victim-
related cases and the number of victim-witness personnel were not
available for the same periods of time. We categorized the USAOs whose
ratio fell within the top third (at least 101 cases per personnel) as
having the "highest" ratio; the USAOs whose ratio fell within the
middle third (between 57.5 and 101 cases per personnel) as having a
"middle range" ratio; and the USAOs whose ratio fell within the bottom
third (less than 57.5) as having the "lowest" ratio.
[39] An arraignment is a judicial proceeding where the defendant is
read the charges filed against her or him and then is asked to enter a
plea. A detention hearing is a judicial proceeding used to determine
whether a defendant should remain in custody before her or his trial,
and if released, what conditions, if any, will be in place, such as a
no-contact order with a victim or witness.
[40] GAO separated the USAOs into sizes based on their districts'
caseloads, which were measured using AOUSC data on the number of all
criminal cases that were filed in each judicial district between March
2006 and March 2007. See app. I for more details.
[41] DOJ suggested revising 18 U.S.C. § 3771(c)(3) to read, "notice
otherwise required pursuant to this chapter shall not be given if such
notice may endanger the safety of any person or compromise an ongoing
investigation."
[42] We were not able to review the files associated with 3 of these
144 complaints because the complaints were still under investigation
and a final determination had not been made at the time of our review.
Therefore, our analysis of victim complaints is based on our review of
141 complaint files.
[43] See 28 C.F.R. § 45.10(c)(3).
[44] See 18 U.S.C. § 3771(d)(1).
[45] See 28 C.F.R. § 45.10(a).
[46] See 28 C.F.R. § 45.10(a).
[47] See 28 C.F.R. § 45.10(c)(3).
[48] We mailed a questionnaire to 1,179 victims, and for the reasons we
mention in app. I, the response rate was low. As a result, we cannot
generalize the survey results to all federal crime victims in our study
period, and instead, limit the discussion of survey results to only
those victims who responded.
[49] These percentages do not add up to 100 due to rounding.
[50] VRO internal guidelines direct investigators to attempt to resolve
any complaint that can be done so reasonably and to the victims'
satisfaction, and notes that no further investigation need be conducted
if the victim is satisfied with the steps taken to resolve the
complaint.
[51] The Office of Professional Responsibility reviews allegations of
professional misconduct of DOJ employees when providing investigative,
litigative, or legal advice. The Office of Professional Responsibility
receives allegations of misconduct against department attorneys from a
variety of sources, including self-referrals and referrals of
complaints by officials in U.S. Attorneys' offices and litigating
divisions, private attorneys, defendants and civil litigants, other
federal agencies, state or local government officials, judicial and
congressional referrals, and media reports.
[52] One study was compiled by an Arizona State Victims' Rights
Enforcement Officer, and the second study was issued by the Institute
for Public Research, both in 2006.
[53] The eight state victims' rights enforcement offices included in
these two studies are located in Alaska, Arizona, Colorado,
Connecticut, Maryland, Minnesota, South Carolina, and Wisconsin. Two
other offices included in this study, located in Oregon and New Mexico,
were not included in our analysis given the offices' recent transition
into receiving and investigating victim complaints.
[54] We obtained CVRA-related cases through legal search engines, court
dockets, interviews, and case compilations by the Federal Judicial
Center and the National Crime Victims Law Institute. We conducted our
final electronic search on June 30, 2008. The cases included are those
that were available in legal databases as of that date.
[55] We mailed a questionnaire to 1,179 victims, and for the reasons we
mention in app. I, the response rate was low. As a result, we cannot
generalize the survey results to all federal crime victims in our study
period, and instead, limit the discussion of survey results to only
those victims who responded.
[56] The Judicial Conference Committee on Rules of Practice, Procedure,
and Evidence coordinates the work of the advisory committees, considers
proposals recommended by the advisory committees, and transmits such
proposals with its recommendation to the Judicial Conference.
[57] Judicial Conference Advisory Committees on Rules of Practice and
Procedure study the operation and effect of rules of practice and
procedure and suggest recommendations with respect to the rules. The
proposed amendment, which is expected to be effective in December 2009,
would provide that when computing deadlines framed in terms of hours,
the start time is at the occurrence of the event that triggers the
deadline--in this case, the filing of the petition for writ of
mandamus. The time period computation includes weekends and legal
holidays, except that if the deadline expires on one of these days, it
is extended to the same time on the next day that is not on a weekend
or legal holiday.
[58] We did not determine the extent to which the courts complied with
the 72-hour requirement for all petitions for writs of mandamus that
were filed. We did not have access to all the petitions and those that
we were able to obtain did not contain information on the exact time
they were filed with the court. In addition, we could not ascertain the
exact time that the petitions were decided from the published court
decisions and did not interview all the judges and clerks who were
involved with the petitions.
[59] Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006).
[60] United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005).
[61] United States v. Lee, No. 01-00132 (D. Haw. June 17, 2005) (order
denying motion).
[62] United States v. Williams, No. 1:06-cr-00313 (N.D. Ga. Jan. 08,
2007) (order denying motion).
[63] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[64] The Crime Victims Fund was established by the Victims of Crime Act
of 1984, as amended, and is comprised of fines collected from
individuals convicted of offenses against the United States and
donations from private entities.
[65] OJP's mission is to increase public safety and improve the fair
administration of justice across the United States through innovative
leadership and programs. According to OJP, it strives to achieve its
mission by providing and coordinating information, research and
development, statistics, training, and support to help the justice
community build the capacity it needs to meet its public safety goals.
[66] 42 U.S.C. § 10603(c)(3)(A).
[67] GAO, Executive Guide: Effectively Implementing the Government
Performance and Results Act, [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-118], (Washington, D.C.: June
1996).
[68] The Office of the Inspector General (OIG) was excluded from our
analysis because they determined that they did not need to submit an
annual compliance report to OVC. According to a memo from the Assistant
Inspector General for Investigations, DOJ, not an individual, is the
victim in most OIG investigations and, in those cases with individual
victims, the OIG is not the first responder.
[69] The 94 U.S. judicial districts are organized into 12 regional
circuits, each of which has a U.S. court of appeals.
[70] In re W.R. Huff Asset Management Co., 409 F.3d 555 (2d Cir. 2005)
[71] In re Dean, No. 08-20125 (5th Cir. May 7, 2008).
[72] DOJ officials stated that the department's Principles of Federal
Prosecution outlines some considerations when deciding not to file
charges or limit charges, which include the sufficiency of the
evidence, the strength of the federal interest that would be served by
the prosecution, and whether there are adequate non-criminal
alternatives to prosecution. In addition, they stated that department
policy also indicates that once a decision to prosecute has been made,
the prosecutor should charge, or recommend that the grand jury charge,
the most serious readily provable offense that is consistent with the
nature of the defendant's conduct, and that is likely to result in a
sustainable conviction.
[73] This complaint was filed after the April 2008 end date of GAO's
complaint file review but is included here as an example of a complaint
that addresses the issue of whether CVRA rights apply before charges
are eventually filed.
[74] In re Dean, No. 08-20125 (5th Cir. May 7, 2008).
[75] Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006); U.S. v. Degenhardt, 405 F.
Supp. 2d 1341 (D. Utah 2005).
[76] United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005).
[77] Presentence reports contain information to help the court
determine the appropriate amount of restitution under the law.
[78] In re Antrobus, No. 08-4002 (10th Cir. Jan. 11, 2008).
[79] Four of the 12 circuit courts have used one of the two standards
of review to decide petitions for mandamus. Other courts have discussed
the standard of review under the CVRA but did not apply either standard
in deciding the case at hand.
[80] In re Dean, No. 08-20125 (5th Cir. May 7, 2008); In re Antrobus,
No. 08-4002 (10th Cir. Jan. 11, 2008).
[81] Kenna v. U.S. District Court for the Central District of
California, 435 F.3d 1011 (9th Cir. 2006); In re W.R. Huff Asset
Management Co., 409 F.3d 555 (2d Cir. 2005).
[82] According to EOUSA officials, the D.C. USAO is responsible for
prosecuting almost all adult criminal offenses and certain juveniles
charged as adults in the D.C. Superior Court.
[83] In the District of Columbia, local law provides that the U.S.
District Court for the District of Columbia has jurisdiction over local
offenses if a federal offense and local offense are joined in the same
indictment. D.C. Code § 11-502.
[84] The D.C. crime victims' statute contains rights similar to those
in the CVRA. However, among other differences, the D.C. statute lacks
the clear and convincing evidence standard to exclude victims from
public proceedings and the right to be reasonably heard in public
proceedings involving release, plea, sentencing, or any parole
proceeding. D.C. Code § 23-1901. The statute instead gives victims the
right to submit a written impact statement at sentencing and release or
parole hearings. D.C. Code § 23-1904. The statute also does not
establish mechanisms to ensure adherence to and enforcement of victims'
rights.
[85] The Assistant General Counsel of the D.C. Superior Court stated
that victims would be confused about the appropriate court of appeals
in which to file petitions for writs of mandamus under the CVRA. The
D.C. Court of Appeals typically hears appeals of Superior Court
decisions, but the CVRA states that victims are to assert their rights
in the "district court," which in the District of Columbia is under the
jurisdiction of the U.S. Court of Appeals for the D.C. Circuit.
[86] DOJ proposed that 18 U.S.C. § 3771(e) be amended to add a new
sentence at the end to read as follows:
"For cases prosecuted by the United States in the Superior Court of the
District of Columbia, the terms 'court' and district court' mean the
Superior Court of the District of Columbia and the term 'court of
appeals' means the District of Columbia Court of Appeals for purposes
of this chapter."
[87] We mailed a questionnaire to 1,179 victims, and for the reasons we
mention in app. I, the response rate was low. As a result, we cannot
generalize the survey results to all federal crime victims in our study
period, and instead, limit the discussion of survey results to only
those victims who responded.
[88] See 42 U.S.C. § 10607.
[89] U.S. Department of Justice, Office of the Inspector General, Audit
Division, "The Department of Justice's Victim Notification System,"
Audit Report 08-04 (January 2008).
[90] Nonprobability sampling is a method of sampling where observations
are selected in a manner that is not completely random, generally using
specific characteristics of the population as criteria. Results from a
nonprobability sample cannot be used to make inferences about an entire
population because some elements of the population being studied had no
chance or an unknown chance of being selected as part of the sample.
[91] We did not review the three additional complaints received by the
VRO during this time period because the complaints were still under
investigation and the VRO had yet to make a determination regarding
them.
[92] 28 C.F.R. § 45.10.
[93] The ombudsman standards against which we compared DOJ's victim
complaint process include United States Ombudsman Association,
Governmental Ombudsman Standards (Dayton, OH: October 2003) and
American Bar Association, Revised Standards for the Establishment and
Operation of Ombuds Offices (February 2004).
[94] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999). These standards, issued pursuant to
the requirements of the Federal Managers' Financial Integrity Act of
1982 (FMFIA), provide the overall framework for establishing and
maintaining internal control in the federal government.
[95] A victim attorney informed us of an additional case that was filed
in the U.S. District Court for the Southern District of Florida in July
2008. We included that case in our analysis.
[96] During this time period, there were a total of 144 complaints
submitted to the VRO. We reviewed 141 of these complaints because at
the time of our review, 3 of the complaints were still under
investigation. However, following a preliminary investigation, the VRO
closed 130 of the 141 complaints we reviewed because she determined
that they were not within her jurisdiction, such as complaints that
were against state and local law enforcement officials who are not
responsible for enforcing the rights of federal crime victims.
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Phone:
The price of each GAO publication reflects GAO‘s actual cost of
production and distribution and depends on the number of pages in the
publication and whether the publication is printed in color or black and
white. Pricing and ordering information is posted on GAO‘s Web site,
[hyperlink, http://www.gao.gov/ordering.htm].
Place orders by calling (202) 512-6000, toll free (866) 801-7077, or
TDD (202) 512-2537.
Orders may be paid for using American Express, Discover Card,
MasterCard, Visa, check, or money order. Call for additional
information.
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Ralph Dawn, Managing Director, dawnr@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, D.C. 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
