Crime Victims' Rights Act
Increasing Victim Awareness and Clarifying Applicability to the District of Columbia Will Improve Implementation of the Act Gao ID: GAO-09-1024T September 29, 2009On 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, among other things: (1) efforts made to implement the CVRA, (2) mechanisms in place to ensure adherence to the CVRA, (3) key issues that have arisen in the interpretation of the CVRA by the federal courts, and (4) perspectives of criminal justice system participants on the CVRA. This testimony is based on GAO's December 2008 report on CVRA, where GAO reviewed guidance and conducted surveys and interviews with criminal justice system participants. GAO cannot generalize its crime victim survey results due to a low response rate. In September 2009, GAO obtained updated information on victim's efforts to enforce their rights.
To implement the CVRA, the Department of Justice (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. DOJ and the courts have also implemented two mechanisms to ensure adherence to the CVRA, including 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 said they were not aware of these mechanisms. If victims are not aware of these enforcement mechanisms, they will not be effective at helping to ensure victims are afforded their rights. GAO also found that DOJ's complaint investigation process lacked independence, impeding impartiality. In July 2009, in response to our recommendation, DOJ revised its victim complaint investigation process such that if investigators who are located in the same office with the subject of the investigation believe that their review of the complaint could bias the investigation or give the appearance of this, they are instructed to inform a designated official at DOJ headquarters. This official may suggest that the complaint be investigated by another DOJ office. Several key issues have arisen that require the courts to interpret various provisions of the law, 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 legal 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, DOJ and court officials believe that one CVRA issue may benefit from a change to the law itself. 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. As to the overall impacts of the CVRA, the victims as well as the DOJ and judicial officials GAO interviewed had mixed perceptions. Most maintained that CVRA has improved victim treatment. For example, 72 percent of the victim-witness professionals--individuals who are responsible for providing services to crime victims and witnesses--who responded to GAO's survey perceived that the CVRA has resulted in at least some increase in victim attendance at court proceedings. Other officials maintained that the federal government and the courts were already treating victims well prior to the act. Victims responding to GAO's survey also reported mixed views on their knowledge of, and satisfaction with, the provision of various rights. For example, 141 of the 167 victims who responded to GAO's survey question regarding participation in the judicial process 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.
GAO-09-1024T, Crime Victims' Rights Act: Increasing Victim Awareness and Clarifying Applicability to the District of Columbia Will Improve Implementation of the Act
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Testimony:
Before the Subcommittee on Crime, Terrorism, and Homeland Security,
Committee on the Judiciary, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 4:00 p.m. EDT:
Tuesday, September 29, 2009:
Crime Victims' Rights Act:
Increasing Victim Awareness and Clarifying Applicability to the
District of Columbia Will Improve Implementation of the Act:
Statement of Eileen R. Larence, Director: Homeland Security and
Justice:
GAO-09-1024T:
GAO Highlights:
Highlights of GAO-09-1024T, a testimony before the Subcommittee on
Crime, Terrorism, and Homeland Security, Committee on the Judiciary,
House of Representatives.
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,
among other things: (1) efforts made to implement the CVRA, (2)
mechanisms in place to ensure adherence to the CVRA, (3) key issues
that have arisen in the interpretation of the CVRA by the federal
courts, and (4) perspectives of criminal justice system participants on
the CVRA. This testimony is based on GAO‘s December 2008 report on
CVRA, where GAO reviewed guidance and conducted surveys and interviews
with criminal justice system participants. GAO cannot generalize its
crime victim survey results due to a low response rate. In September
2009, GAO obtained updated information on victim‘s efforts to enforce
their rights.
What GAO Found:
To implement the CVRA, the Department of Justice (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.
DOJ and the courts have also implemented two mechanisms to ensure
adherence to the CVRA, including 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 said
they were not aware of these mechanisms. If victims are not aware of
these enforcement mechanisms, they will not be effective at helping to
ensure victims are afforded their rights. GAO also found that DOJ‘s
complaint investigation process lacked independence, impeding
impartiality. In July 2009, in response to our recommendation, DOJ
revised its victim complaint investigation process such that if
investigators who are located in the same office with the subject of
the investigation believe that their review of the complaint could bias
the investigation or give the appearance of this, they are instructed
to inform a designated official at DOJ headquarters. This official may
suggest that the complaint be investigated by another DOJ office.
Several key issues have arisen that require the courts to interpret
various provisions of the law, 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 legal 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, DOJ and court officials believe that one CVRA
issue may benefit from a change to the law itself. 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.
As to the overall impacts of the CVRA, the victims as well as the DOJ
and judicial officials GAO interviewed had mixed perceptions. Most
maintained that CVRA has improved victim treatment. For example, 72
percent of the victim-witness professionals”individuals who are
responsible for providing services to crime victims and witnesses”who
responded to GAO‘s survey perceived that the CVRA has resulted in at
least some increase in victim attendance at court proceedings. Other
officials maintained that the federal government and the courts were
already treating victims well prior to the act. Victims responding to
GAO‘s survey also reported mixed views on their knowledge of, and
satisfaction with, the provision of various rights. For example, 141 of
the 167 victims who responded to GAO‘s survey question regarding
participation in the judicial process 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.
What GAO Recommends:
While this testimony contains no new recommendations, GAO previously
recommended that DOJ increase victims‘ awareness of CVRA enforcement
mechanisms, among other things. Also, GAO suggested that Congress
revise the CVRA to clarify applicability to the District of Columbia.
DOJ generally concurred with GAO‘s recommendations and convened a
working group to determine how to implement them.
View [hyperlink, http://www.gao.gov/products/GAO-09-1024T] or key
components. For more information, contact Eileen Larence at (202) 512-
8777 or larencee@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss our analysis of the efforts
made by the Department of Justice (DOJ) and the federal judiciary to
implement the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna
Gillis, and Nila Lynn Crime Victims' Rights Act (CVRA), which was
enacted on October 30, 2004.[Footnote 1] The CVRA defines a crime
victim as "a person directly and proximately harmed as a result of a
federal offense or an offense in the District of Columbia."[Footnote 2]
The Act established eight rights for such 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 of these public court proceedings related to the
crime.[Footnote 3] The law requires officers and employees of DOJ,
which includes, investigative agents, prosecutors, 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.[Footnote 4] Since most federal crimes--that is, crimes that
violate a federal statute--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.[Footnote 5] The CVRA also enables victims
to assert their rights in district court by filing a motion for relief
[Footnote 6]--a formal request made to a judge for an order or ruling--
with the district court regarding their rights.[Footnote 7] 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 8]
We have assessed implementation of the CVRA in response to sec. 104(b)
of the Act, which directed GAO to evaluate the "effect and efficacy of
the implementation of the [CVRA] on the treatment of crime victims in
the federal system." We issued a report on the results of that review
on December 15, 2008. [Footnote 9] My statement today summarizes most
of the findings in our report and addresses 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) What are the
key issues that have arisen as courts interpret and apply the CVRA in
cases? (4) What are the perspectives of various participants in the
federal criminal justice system regarding the effect and efficacy of
CVRA implementation? Our December 2008 report also includes a
discussion of the methods DOJ uses to monitor performance regarding the
provision of the CVRA.[Footnote 10]
To address these questions, we reviewed CVRA guidance issued by DOJ and
the federal judiciary, victim complaints submitted to DOJ, and federal
court rulings. We also conducted surveys and interviews of crime
victims and victim-witness professionals, and interviews with
investigative agents, prosecutors, defense attorneys, and federal
judges.[Footnote 11] We cannot generalize the results of the crime
victim survey due to a low response rate, nor can we generalize the
results of the interviews since we used a nonprobability sampling
method to select the locations we visited to conduct these interviews.
However, the survey results and interviews provided us with information
on the perspectives of various participants in the criminal justice
system about the CVRA. We conducted our audit work from May 2007 to
December 2008. In September 2009, for the purposes of this testimony,
we obtained updates to certain data we included in our report, such as
the number of victim complaints submitted to DOJ and the number of
times CVRA rights were asserted in federal court. We conducted our
audit work in accordance with generally accepted government auditing
standards. Appendix I of our December 2008 report contains a detailed
description of our scope and methodology.[Footnote 12]
Background:
The Evolution of Crime Victims' Rights:
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 13]
Victims of Crime Act of 1984,[Footnote 14] Victims' Rights and
Restitution Act of 1990,[Footnote 15] Violent Crime Control and Law
Enforcement Act of 1994,[Footnote 16] Mandatory Victims Restitution Act
of 1996,[Footnote 17] Victim Rights Clarification Act of 1997,[Footnote
18] and Crime Victims' Rights Act of 2004.[Footnote 19]
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 20] 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 21] For example, the law 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.
On October 30, 2004, the Crime Victims' Rights Act, as a component of
the Justice for All Act, was signed into law.[Footnote 22] 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 23]
Mechanisms for Crime Victims to Assert Their Rights:
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 24] To
comply with this provision in the statute, DOJ issued regulations
creating the Victims' Rights Ombudsman.[Footnote 25] 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, among 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 26] 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.
Authorization of Funding to Support CVRA Implementation:
The CVRA authorized appropriations for fiscal years 2005 through 2009.
However, it is unclear whether and exactly how much of this funding was
appropriated because 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. The authorized amounts, years, and
purposes are listed in table 1.
Table 1: 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[A];
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[B];
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.
[A] DOJ's Office for Victims of Crime (OVC), which provides leadership
and funding on behalf of crime victims, was established in federal law
in 1988 through an amendment to the 1984 Victims of Crime Act (VOCA).
OVC provides federal funds to support victim compensation and
assistance programs across the nation. OVC also provides training for
professionals who work with victims, develops and disseminates
publications, supports projects to enhance victims' rights and
services, and educates the public about victim issues. DOJ uses the
Victim Notification System to notify crime victims of proceedings
related to their cases.
[B] Organizations that provide legal counsel to federal crime victims
include the National Crime Victim Law Institute (NCVLI), which
established 12 clinics nationwide that provide pro bono legal services
to crime victims at the federal, state, and local levels.
[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 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. Additionally, DOJ and the federal judiciary have taken actions
to address four factors that have affected CVRA implementation,
including 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, a telephone, or the Internet.
To address this challenge, victim-witness personnel said 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. For example,
according to the investigative agents, USAO staff, and one magistrate
judge with whom we met, a detention hearing--which is a judicial
proceeding used to determine whether a defendant should remain in
custody before her or his trial--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. When faced
with this challenge, USAO victim-witness personnel said 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. The concern is that public knowledge of
the defendant's cooperation could compromise the investigation, as well
as bring harm to the defendant and others. 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. DOJ's
efforts to address this issue include requesting that the court close
plea agreement proceedings--which may prevent the victim from attending
such proceedings since victims' right not to be excluded only applies
to public court proceedings--and proposing legislation to revise the
CVRA to allow for an exception to victims' notification rights in these
instances.
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:
Many Victims Who Responded to Our Survey Reported Not Being Aware of
Their Ability to File Complaints Related to Their CVRA Rights, and the
Structure of the Complaint Process Could Impede Impartiality:
To enforce the provisions of the CVRA, the act established two
mechanisms to help victims ensure that their rights are granted. These
mechanisms include processes by which victims can submit complaints
against DOJ employees whom they believe violated their rights and file
motions in court related to their rights. However, many of the victims
who responded to our survey reported that they were not aware of these
enforcement mechanisms. Of the more than 1.1 million federal crime
victims who, as of September 4, 2009, 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 259 written complaints from December 2005 through August
2009. The VRO closed 235 complaints following a preliminary
investigation, primarily because the complaints were related to a state
or local matter as opposed to a federal matter or it was determined
that the individual was not a federal crime victim. Lastly, the VRO
determined that of the 19 complaints that warranted further
investigation,[Footnote 27] 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. We did not make 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.
Several contributing factors most likely explain 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 complaint with the VRO. Third, victims reported a lack of
awareness about the complaint process itself. 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. Therefore, in our December 2008
report,[Footnote 28] we recommended that DOJ explore opportunities to
enhance publicity of the victim complaint process to help ensure that
all victims are made aware of it. In commenting on a draft of our
report, DOJ stated that it agreed that victims should be well-informed
of the complaint process and intended to take steps to enhance victim
awareness. However, as of September 11, 2009, DOJ had not yet
determined what steps are most appropriate, but hopes to make this
decision by the end of the year.
Even if victims submit complaints to DOJ regarding their CVRA rights,
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. In our December 2008 report,
[Footnote 29] we recommended that DOJ 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. In commenting on a draft of our report, DOJ
stated that it recognized the benefits of having an investigation
process that ensures independence and impartiality and that the working
group, in consultation with the VRO, would explore several options that
will address this concern. Subsequently, DOJ reported that on July 31,
2009, the VRO issued guidance to ensure that complaint investigators
refer to the VRO any complaint where the investigator's review of the
complaint would raise an actual or apparent conflict of interest. If
the VRO determines that such a conflict exists, the VRO would consider
reassigning the complaint to someone in a different office for
investigation.
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 cases filed in the U.S. district
courts in the nearly 5-year period since the CVRA was enacted, we found
49 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 30] We also
found 27 petitions for writs of mandamus that were filed with the
appellate courts,[Footnote 31] the majority of which were in response
to motions previously denied in the district court. Table 2 summarizes
the number of times CVRA rights were asserted in the district and
appellate courts and how the courts ruled in those instances.[Footnote
32]
Table 2: Number of Times CVRA Rights Were Asserted in District Courts
and Courts of Appeals and How the Courts Ruled in Those Instances, as
of September 3, 2009:
Number of motions (written and verbal) filed in district court[A];
Court ruling: Granted: 14[B];
Court ruling: Denied: 29;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 5;
Court ruling: Total: 49.
* Filed by victim or victim's attorney;
Court ruling: Granted: 4;
Court ruling: Denied: 22;
Court ruling: Granted in part: [Empty];
Court ruling: Decision not based on the CVRA: 2;
Court ruling: Total: 28.
* Filed by prosecutor on victim's behalf;
Court ruling: Granted: 10;
Court ruling: Denied: 7;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 3;
Court ruling: Total: 21.
Number of petitions for writs of mandamus filed in the court of
appeals[C];
Court ruling: Granted: 4;
Court ruling: Denied: 21;
Court ruling: Granted in part: 1;
Court ruling: Decision not based on the CVRA: 1;
Court ruling: Total: 27.
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 of our victim survey also suggest
that victims lack this awareness. Specifically, 134 of the 236 victims
who responded to our survey question regarding filing 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. Thus, DOJ
may be the most appropriate entity to inform victims of this provision
as well. 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. In our December 2008 report,[Footnote 33] we
recommended that DOJ 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 into brochures and letters sent to victims and on agency
Web sites. In commenting on a draft of our report, DOJ stated that it
agreed that victims should be well-informed of their ability to assert
their CVRA rights in district court and intended to take steps to
enhance victim awareness. However, as of September 11, 2009, DOJ had
not yet decided upon an approach for enhancing victim awareness, but
hopes to make this decision by the end of the year.
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:
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 DOJ has not charged in court,
stating that the law applies in some circumstances and not in others.
While some courts have stated that CVRA rights doe not apply unless
charges have been filed, other courts have stated that certain VCRA
rights, under particular circumstances, may apply to victims of
offenses that are investigated but have not been charged in court. In
implementing the CVRA, 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 34] On September
11, 2009, DOJ informed us that the department was initiating a review
of the Attorney General Guidelines for Victim and Witness Assistance--
which provides guidance to DOJ prosecutorial, investigative, and
correctional components related to the treatment of crime victims--and
any changes to the department's position on when CVRA rights apply
would be reflected in the revised guidance. DOJ is uncertain when the
revised guidelines will be issued.
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. 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, the court
of appeals reviews the district court decision for legal error or abuse
of discretion.[Footnote 35] 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 were split on which standard of review should be used
to review petitions for writs of mandamus under the CVRA.[Footnote 36]
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. The issues discussed
above 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. 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.
The CVRA defines a crime victim as "a person directly and proximately
harmed as a result of a federal offense or an offense in the District
of Columbia." At the same time, multiple provisions of the CVRA refer
to district courts, which do not include the D.C. Superior Court. While
it is apparent that the CVRA applies to victims whose federal offenses
are prosecuted in the U.S. district court in the District of Columbia,
the CVRA is not explicit about whether the law applies to victims of
local offenses prosecuted in the D.C. Superior Court. As a result, some
judges in the D.C. Superior Court are applying the CVRA, and others are
not. In implementing the CVRA, DOJ operates as if the CVRA applies to
victims of local offenses in the District of Columbia, and 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.
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. 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. In our December 2008 report, we suggested
that Congress consider revising the language of the CVRA to clarify
this issue. As of September 2009, no related legislation had been
introduced.
Perceptions Vary Regarding Awareness of and Satisfaction with Victims'
Rights as well as Participation and Treatment of Crime Victims, and the
Potential for Conflicting Interests between Victims and Defendants Is a
Concern:
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; and
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.
Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions you or other Members of the Subcommittee may
have at this time.
GAO Contact and Staff Acknowledgments:
For questions about this statement, please contact Eileen R. Larence at
(202) 512-8777 or larencee@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. Individuals making key contributions to this
statement include Kristy N. Brown, Assistant Director; Tracey King; and
Susan Sachs. Additionally, key contributors to our December 2008 report
include Lisa Berardi Marflak, David Schneider, Matthew Shaffer and
Johanna Wong, as well as David Alexander, Stuart Kaufman, and Adam
Vogt.
[End of section]
Footnotes:
[1] Pub. L. No. 108-405, 118 Stat. 2260 (2004).
[2] 18 U.S.C. §3771(e).
[3] 18 U.S.C. §3771(a).
[4] 18 U.S.C. §3771(c)(1).
[5] 18 U.S.C. §3771(f).
[6] Relief is a generic term for all types of benefits or redress that
a party asks of a court.
[7] 18 U.S.C. §3771(d)(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.
[8] 18 U.S.C. §3771(d)(3). A writ of mandamus is an order from a higher
court directing a lower court to perform a specified action.
[9] GAO, Crime Victims' Rights Act: Increasing Awareness, Modifying the
Complaint Process, and Enhancing Compliance Monitoring Will Improve
Implementation of the Act, [hyperlink,
http://www.gao.gov/products/GAO-09-54] (Washington D.C.: Dec. 15,
2008).
[10] [hyperlink, http://www.gao.gov/products/GAO-09-54]. We made a
number of recommendations in the report to strengthen DOJ's ability to
assess how well the Department and its employees are meeting their CVRA
responsibilities. DOJ agreed with our recommendations and established a
working group to determine how best to implement them. As of September
2009, the working group had prepared a draft data collection instrument
which, when finalized, will be used to collect standardized information
from the various DOJ components regarding their compliance with the
CVRA. DOJ then plans to use this information to measure the
department's performance in meeting victims' needs.
[11] 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 included 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. Also 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 fielded the survey, to obtain their perspectives about
CVRA implementation. We received responses from 174 (87 percent) of
them. Additionally, we visited and interviewed criminal justice
participants in nine federal judicial districts. We also reviewed files
related to the 141 victim complaints that had been received by DOJ's
Victims' Rights Ombudsman (VRO) from December 2005 to April 2008 and in
which a determination had been made.
[12] [hyperlink, http://www.gao.gov/products/GAO-09-54].
[13] Pub. L. No. 97-291, 96 Stat. 1248 (1982).
[14] Pub. L. No. 98-473, ch. XIV, 98 Stat. 1837 (1984).
[15] Pub. L. No. 101-647, tit. V, 104 Stat. 4789 (1990).
[16] Pub. L. No. 103-322, 108 Stat. 1796 (1994).
[17] Pub. L. No. 104-132, tit. II, 110 Stat. 1214 (1996).
[18] Pub. L. No. 105-6, 111 Stat. 12 (1997).
[19] 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).
[20] 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.
[21] Id. at § 503, 104 Stat. 4820-22 (codified at 42 U.S.C. § 10607).
[22] Pub. L. No. 108-405, 118 Stat. 2260 (2004).
[23] Id. at § 102(a) (codified at 18 U.S.C. § 3771(a)).
[24] 18 U.S.C. § 3771(f).
[25] 28 C.F.R. § 45.10.
[26] 18 U.S.C. § 3771(d)(3).
[27] There are 5 complaints for which we do not have information
regarding the VRO's determination as to the merits of the complaint. As
of September 2009, the VRO had yet to make a final determination
regarding the merits of 2 complaints. Also, at the time we reviewed
complaints that were submitted to DOJ from December 2005 through April
2008, there were 3 complaints that were still under investigation and a
final determination had not been made. However, we did not follow up on
the status of those complaints for the purposes of this testimony.
[28] [hyperlink, http://www.gao.gov/products/GAO-09-54].
[29] [hyperlink, http://www.gao.gov/products/GAO-09-54].
[30] 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 September 3, 2009. The cases included are
those that were available in legal databases as of that date.
[31] A writ of mandamus is an order from a higher court directing a
lower court to perform a specified action.
[32] Prior to issuing our December 2008 report, we summarized all cases
we identified as of June 20, 2008, in which a court issued a decision
based on the CVRA. The summary of those cases can be found in appendix
IV of our December 2008 report. (GAO-09-54)
[33] [hyperlink, http://www.gao.gov/products/GAO-09-54].
[34] In re Dean, No. 08-20125 (5th Cir. May 7, 2008).
[35] 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.
[36] 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.
[End of section]
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