WikiLeaks Document Release
http://wikileaks.org/wiki/CRS-RS22518
February 2, 2009
Congressional Research Service
Report RS22518
Crime Victims' Rights Act: A Sketch of 18 U.S.C. 3771
Charles Doyle, American Law Division
September 29, 2006
Abstract. Section 3771 is the product of a decades-long effort to afford greater deference to victims in the
criminal justice process. It is akin to the victims' bill of rights provisions found in the laws of the various states
and augments a fairly wide variety of pre-existing federal victims' rights legislation. Its enactment followed
closely on the heels of discontinued efforts to pass a victims' rights amendment to the United States Constitution.
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Prepared for Members and Committees of Congress
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The victims of federal crimes enjoy certain rights to notice, attendance and participation in the
federal criminal justice process by virtue of 18 U.S.C. 3771. More specifically, the section assures
victims that they have:
(1) The right to be reasonably protected from the accused. (2) 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. (3) 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. (4) The right to be reasonably heard at
any public proceeding in the district court involving release, plea, sentencing, or any parole
proceeding. (5) The reasonable right to confer with the attorney for the Government in the
case. (6) The right to full and timely restitution as provided in law. (7) The right to
proceedings free from unreasonable delay. (8) The right to be treated with fairness and with
respect for the victim's dignity and privacy.
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This is an abridgement of a report, which with quotation marks, citations, and footnotes, appears
as CRS Report RL33679, Crime Victims' Rights Act: A Summary and Legal Analysis of 18 U.S.C.
3771.
Background ..................................................................................................................................... 1
Who Is a Victim............................................................................................................................... 1
The Right to Be Reasonably Protected From the Accused.............................................................. 2
Notice .............................................................................................................................................. 2
Attendance....................................................................................................................................... 2
Participation..................................................................................................................................... 2
Confer.............................................................................................................................................. 3
Restitution ....................................................................................................................................... 3
Reasonable Freedom From Delay ................................................................................................... 3
Fairness, Dignity and Privacy.......................................................................................................... 4
Responsibilities of the Courts.......................................................................................................... 4
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Responsibilities of Other Authorities .............................................................................................. 4
Enforcement .................................................................................................................................... 4
No New Rights for the Accused ...................................................................................................... 4
Many Victims--One Accused ......................................................................................................... 4
No Damages .................................................................................................................................... 5
Justice Department Regulations ...................................................................................................... 5
Author Contact Information ............................................................................................................ 5
Section 3771 is the product of a decades-long effort to afford greater deference to victims in the
criminal justice process. It is akin to the victims' bill of rights provisions found in the laws of the
various states and augments a fairly wide variety of pre-existing federal victims' rights
legislation. Its enactment followed closely on the heels of discontinued efforts to pass a victims'
rights amendment to the United States Constitution.
The definition of "victim," the question of deciding who should be afforded rights and who
should not be, was one of the difficulties that surfaced during the course of debates over the
proposals to amend the United States Constitution. Section 3771 provides an explicit definition:
For the purposes of this chapter, the term "crime victim" means a person directly and
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proximately harmed as a result of the commission of a Federal offense or an offense in the
District of Columbia. In the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the
representatives of the crime victim's estate, family members, or any other persons appointed
as suitable by the court, may assume the crime victim's rights under this chapter, but in no
event shall the defendant be named as such guardian or representative. 18 U.S.C. 3771(e).
Other than the coverage of victims of crime under the laws of the District of Columbia, the
definition is by and large the same definition found in the general federal restitution statutes, 18
U.S.C. 3663, 3663A. Commentators have suggested that courts will be able to draw upon the case
law developed under the two restitution statutes to determine who qualifies as a victim under
section 3771. Recourse may be somewhat complicated, however, by the presence of additional
language in the restitution definitions, or by the references in the restitution statutes to specific
persons and the types of harm that qualify for restitution. Nevertheless, the courts do seem likely
to consult their experience under the restitution statutes when construing section 3771's definition
of victim. Section 3771 and the restitution statutes speak of victims who are "persons" ("`crime
victim'" means a person . . ."). Although in common parlance, this might be thought to restrict the
class of victims to human beings, general usage within the United States Code is to the contrary.
Unless the context suggests another intent, the word "person" as used in the United States Code is
understood to "include corporations, companies, associations, firms, partnerships, societies, and
joint stock companies as well as individuals," 1 U.S.C. 1. Some courts hold that restitution is only
available for harm directly related to the crime of conviction or provided for in some explicit
exception such as that available for conspiracies and plea bargains. Other courts will permit
restitution based on proximate harm if it is not too remote from the crime of conviction and if
there are no unrelated intervening causes or contributors to the harm. Thus for instance, a
defendant convicted of bank robbery may be ordered to pay restitution for the damage he caused
during his attempted getaway. Restitution is only available for harm related to the crime of
conviction. Victims of crimes, other than those for which the defendant is convicted, are not
entitled to restitution even if they were victims of offenses that were initially charged with the
crime of conviction or are undisputably related to the crime of conviction. The same may hold
true for victims under section 3771. Individuals may lose victim status under section 3771 during
the course the criminal proceedings if charges covering the crimes of which they are the victim
are dropped or dismissed even though related crimes continue to be prosecuted.
Like the restitution statutes, section 3771 states that in the case of a deceased victim, "the legal
guardians of the crime victim or the representatives of the crime victim's estate, family members,
or any other persons appointed as suitable by the court, may assume the crime victim's rights."
This suggests that family members of the deceased are not as such considered victims without
more. It implies that the parents and other relatives of an adult homicide victim may assume the
victim's rights under the appointment of the court, but otherwise are entitled to none of section
3771's victims' benefits. The restitution cases may lend some credence to this view. Early case
law construing section 3771 seems to leave the question unsettled.
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Section 3771 lists the right to be reasonably protected from the accused first among its victims
rights. It appears to have been the subject of little, if any, judicial attention. One commentator has
observed that "the legal significance, if any, of these general provisions is unclear." At the very
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least, the section provides an explicit justification for compatible judicial action taken in the
interest of victim safety.
Section 3771's notification rights are subject to several limitations, some explicit, some implicit.
The section explicitly excuses a failure to notify victims of the release of an accused when to do
so might be dangerous, and it permits the courts to seek reasonable accommodations when the
number of victims in a given case precludes strict compliance with the section's demands. The
notice clause has several distinctive features: (1) the notice rights apply only with respect to
public court proceedings and parole proceedings; (2) the rights attach to those proceedings
involving the crime but not necessarily to all those related to the crime; (3) victims are entitled to
reasonable, accurate and timely notice; and (4) victims are only entitled to notice of the release or
escape of the accused. With regard to this last feature, committee reports on the equivalent
language in the proposed constitutional amendment considered the terms "accused" and
"convicted" interchangeable. The sponsors of section 3771 were of the same view.
Section 3771 assures victims of the right not to be excluded from any public proceedings
involving the crime except where to attend would color their subsequent testimony. It is one area
where balancing the interests of victim, defendant, and government may be the most challenging.
Unlike the rights to notice and not to be excluded, the right to be heard is a right to participate.
The section limits application to reasonable participation in public court and parole proceedings.
It does not on its face give victims the right to be heard in closed proceedings or to be heard on
other pre-trial motions, at trial, perhaps on appeal, or with respect to related forfeiture or habeas
proceedings. Nor does it explicitly give he victim the right to be heard in any particular form.
Section 3771 assures crime victims of the right to reasonably be heard at proceedings where a
plea bargain is accepted. The right only attaches to the acceptance of plea bargains in open court
(i.e., at public proceedings). The right clearly does not vest a victim with the right to participate in
plea negotiations between the defendant and the prosecutor, which are neither public nor
proceedings. By the same token, the right to be heard is not the right to decide; victims must be
heard, but their views are not necessarily controlling. It remains to be seen whether the existence
of the right in open court will lead to more proceedings being closed to avoid the complications
of recognizing the right.
The sponsors of the legislation seem to have anticipated that the right to heard at sentencing
included the right to be heard orally and did not intend to permit the courts to require
participation in writing except when faced with an overwhelming number of victims at the
sentencing of single defendant. Thus far, the courts seem to concur.
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The Senate sponsors said of the right to confer with the attorney for the government: This right is
intended to be expansive. For example, the victim has the right to confer with the Government
concerning any critical stage or disposition of the case. This right to confer does not give the
crime victim any right to direct the prosecution. Prosecutors should consider it part of their
profession to be available to consult with crime victims about the concerns the victims may have
which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are
able to confer with the Government's attorney about proceedings after charging. At least some
courts appear to believe that exercise of the right must be self-initiated.
The section affords the right to full and timely restitution as provided in law. It seems to confirm
rather than enlarge existing law in the area of restitution. Sponsors felt that the rest of section
would bolster the victim's restitution interest by ensuring the victim's rights to notice,
consultation and participation. One appellate court has pointed out that the promise of "full"
restitution extends only as far as the law provides, a fact that makes it clear that Congress
recognized that there would be numerous situations when it would be impossible for multiple
crime victims to the same set of crimes to be repaid every dollar they had lost.
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Section 3771 continues to describe the right to delay avoidance in limiting terms. Its sponsors
suggested than the right was aimed at scheduling delays. Early case law indicates that the courts
are sensitive to victims' interest in delay avoidance, but also that in some instances delay may be
in the interest of at least some victims.
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This right to be treated with fairness and respect for one's dignity and privacy rarely found
explicit expression in the proposed constitutional amendments, although it clearly lies at the heart
of all of them. The same language appears in the earlier federal "best efforts" statute, and a
similar right is featured in many of the state constitutional and statutory victims' rights
provisions.
At least one court has expressed the view that the provision in section 3771 designates the
judiciary as an insurer of the rights of victims requires at least some proactive procedure designed
to ensure victims' rights. The trial court's obligation to "ensure" victims' rights seems to set its
responsibilities a notch above the "best efforts" level of obligation imposed upon other officials.
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Section 3771 directs officers and employees of the Department of Justice and other departments
and agencies of the United States engaged in the detection, investigation, or prosecution of crime
to make their best efforts to see that crime victims are notified of, and accorded, the rights the
section confers. It specifically instructs prosecutors to advise crime victims that they can seek the
advice of an attorney with respect to those rights.
Section 3771 expressly authorizes the government to assert rights on behalf of the victim. The
government's prerogative to assert the rights of a victim apparently includes the right to petition
for mandamus when they are denied. Victims also enjoy a right to appeal denial of any their
statutory rights using a writ of mandamus. At least two federal appellate courts have concluded
that since Congress had designated mandamus as the principal avenue of review, it did not intend
to require victims to overcome the hurdles typically faced by petitioner seek review of a district
court determination through a writ of mandamus.
A person accused of the crime may not obtain any form of relief under section 3771, nor may
denial of a right under the section provide grounds for a new trial.
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In a case where the court finds that the number of crime victims makes it impracticable to accord
all of the crime victims the rights described in the section, the court shall fashion a reasonable
procedure to give effect to the section that does not unduly complicate or prolong the
proceedings.
The constitutional amendment proposals generally included a ban on damages. They were
thought to not only to bar a cause of action for damages on behalf of aggrieved victims but also to
preclude requests for the appointment of counsel to represent indigent victims or for payment of
attorneys fees for retained counsel. The sponsors of section 3771 made no similar statements
during the course of debate with respect to the damage ban found in section 3771, but did point
out that other sections of the legislation established a grant program to provide victims with legal
assistance. Other Members bemoaned the fact that the section makes no provision for the
appointment of counsel for indigent victims.
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The Attorney General's regulations required by section 3771 must include the designation of an
official to receive victim complaints concerning performance under the section, training for
Justice Department employees, and disciplinary sanctions for willful and wanton violations, 18
U.S.C. 3771(f)(2). The Department of Justice issued revised victim assistance guidelines in May
2005 that include section 3771 matters, United States Department of Justice, Office of Justice
Programs, Office of Victims of Crime, Attorney General Guidelines for Victim and Witness
Assistance (May 2005), available on September 27, 2006 at, http://www.usdoj.gov/olp/final.pdf.
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968