On October 30, 2004, the President signed into law the Justice for All Act of 2004 (the “Act”). Title I of the Act both establishes the rights of crime victims in federal criminal proceedings and provides mechanisms to enforce those rights.
Federal Crime Victims have statutory rights. The Justice For All Act 2004 (18 U.S.C. §3771) created the following Crime Victims’ Rights:
1. The right to be reasonably protected from the accused.
Victims and Witnesses have a right to receive reasonable protection from a suspected offender and person acting in concert with or at the behest of the suspected offender. During court proceedings, victims and witnesses are provided a waiting area removed from and out of sight and hearing of the defendant and defense witnesses. The Victim Witness Specialist will offer assistance with safety planning and referrals to local social service programs when needed. When appropriate, the trial team will assess a case and give careful consideration to the Emergency Witness Assistance Program and the U.S. Marshal’s Witness Security Program.
2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or any release or escape of the accused.
A public court proceeding is a proceeding held in open court. Public court proceedings may include, but are not limited to: arraignments, bail hearings, hearings on pretrial motions, plea proceedings, motions to quash subpoenas, trials, sentencing hearings, appellate arguments and post-judgment hearings such as hearings on motions for return of property and restitution enforcement. Victims have some obligation to aid notification by, for instance, providing accurate contact information.
The Department of Justice Victim Notification System is a service provided by the Federal Bureau of Investigation, The United States Attorneys’ Offices, The Federal Bureau of Prisons and the Office for Victims of Crime in cooperation with the United States Postal Inspection Service. This free, computer-based system provides important information to victims. In many cases you will receive letters generated through VNS containing information abut the events pertaining to your case and/or any defendants in the case as well as a victim identification number (VIN) and personal identification number (PIN). The VNS system can be accessed through the internet or the VNS Call Center (1-866-365-4968). Your VIN and PIN numbers are both required any time you contact the Call Center or when accessing VNS on the Internet.
3. The right not 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.
Under the JFA, a victim is now a “person authorized by statute to be present” except where the court has made a finding the victim should be excluded. It is not the Government’s responsibility to pay for victims’ transportation and lodging to attend a court hearing, however, the Victim Witness Specialist may consider application to the Federal Crime Victims Assistance Fund for assistance in limited circumstances when a victim would otherwise be unable to attend.
4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing or any parole proceeding.
The JFA does not state whether the victim’s right to be heard should be exercised in writing or orally. Senator Kyl, a sponsor of the JFA stated: “The very purpose of this section is to allow the victim to appear personally and directly address the court. This section would fail in its intent if the court determined that written, rather than oral communication, could generally satisfy this right”.
5. The reasonable right to confer with the attorney for the Government in the case.
Although prosecutors may not be able to share non-public information, they should be reasonably available to consult with victims about major case decisions.
6. The right to full and timely restitution as provided in law.
The Mandatory Victims Restitution Act of 1996 (MVRA) states that “the court shall order restitution to each victim in the full amount of each victim’s losses....with no consideration of the defendant’s resources.” The U.S. Clerk of Court is charged with the collection and distribution of restitution as any payment becomes available. The U.S. Attorney’s Office, Financial Litigation Unit, enforces orders of restitution as the judgment and its resources permit on behalf of identified victims for 20 years from the filing date of the judgment (plus the time period of actual incarceration) or until the death of the defendant.
Unfortunately, as a practical matter, a defendant who has no money or potential to make money may be unlikely to ever make meaningful restitution to the victims of crime.
7. The right to proceedings free from unreasonable delay.
This right may be used to oppose continuances filed on behalf of the defendant, however, realistically, some delays just cannot be avoided. Discuss your concerns with the prosecutor or the victim witness specialist.
8. The right to be treated with fairness and with respect for the victim’s dignity and privacy.
On May 6, 2005, Attorney General Alberto R. Gonzales announced strengthened Victim & Witness Assistance Guidelines and said, “Among the Justice Department’s central missions are aiding the victims of federal crimes, protecting them from further harm and working with them in bringing criminal offenders to justice.” “The Department must strive tirelessly to minimize the inconveniences and frustration that the victims of crime suffer in its wake.”
Crime victims have a right to consult with an attorney with respect to the rights listed above and may assert those rights in the district court in which a defendant is being prosecuted for the crime, or if no prosecution is underway, in the district court in the district in which the crime occurred.
In addition to those rights the Violent Crime Control and Law Enforcement Act of 1994 established the following rights:
1. The right of sexual assault victims to notice and payment for testing and counseling for sexually transmitted diseases. 42 U.S.C. §10607(C)(7)
2. The right of domestic violence victims to be heard at the bail/bond hearing of a defendant. 48 U.S.C. § 2263
3. The right of victims of a crime of violence or sexual abuse to speak at sentencing. Fed. R. Crim. P. 32
4. The right to mandatory restitution where practicable for victims of federal domestic violence crimes, sexual abuse, sexual exploitation and other abuse of children offenses, and telemarketing fraud. 18 U.S.C. §3663A
We will make our best efforts to ensure you are provided the rights described. If you believe that an employee of the United States Attorney’s Office failed to provide you with one or more of these rights, you may file an administrative complaint, as provided under 28 CFR §45.10. Please contact the United States Attorney’s Office to obtain information about these procedures.