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January 11, 2008

Following up on CVRA statute and litigation

The Crime Victims' Rights Act, which is codified at  18 U.S.C. § 3771, is a fascinating and under-examined statute that I may end up coming back to repeatedly.  In the short term, for the next chapter in the litigation I was describing to you today, check out this new post, "Tenth Circuit rejects CVRA claim in shooting case," on my sentencing blog.

I would be very interested in any reactions/comments to the CVRA as a statute and to this litigation over its terms.  (And, of course, bonus points are awarded to anyone who can find and link a video that's relevant to the discussion.)

January 11, 2008 in Interesting statutes and cases | Permalink


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I'm just curious as to whether this statute has ever been challenged...

Posted by: S. Lee | Jan 12, 2008 6:41:40 PM

Challenged by whom and on what grounds?

Posted by: Doug B. | Jan 13, 2008 5:33:39 PM

This might be "Law and Order" influencing me too much, but I wonder if, after a crime's been committed, there could be a situation where the accused's rights come into conflict with the victim's rights, and the accused challenges this statute on the grounds of this statute violating Due Process.

Also, since this is a federal statute, could there possibly be a conflict of state law against federal?

Or do I watch too much L&O?

Posted by: S. Lee | Jan 13, 2008 9:50:24 PM

Upon first glance I have not noticed anything problematic about the statute. But I do believe the 72 hour requirement should not be applicable when the courts are faced to figure out if the victim applies to the act itself. That is too much pressure and will cause too many hasty decisions in my view. These hasty decisions can be subject to more influence by others' political agendas and pressures than well thought out decisions might be able to combat more efficiently. I think the families of the victim are in a bit of a rage asking for the seller of the gun to be jailed for 99 months. I also do not think it necessary to testify at the gun salesman's hearing either. Since this is an issue of causation, personally I believe that the guns salesman is one of the causes of the victim's death. But the supplier of the weapon should not be punished disproportionately to his crime either. Overall, I agree with the court for not allowing the parents to testify at the trial.

Posted by: J.Neal | Jan 14, 2008 7:13:13 PM

As an aside, S. Lee, please know that it is impossible to "watch too much L&O." And I think you are right that there might be potential due process issues lurking in the operation of the CVRA.

Posted by: Doug B. | Jan 15, 2008 7:18:41 AM

You make a lot of good points, J. Neal, but I want to offer a different take on a couple of them. It's understandable to think that these parents, or crime victims in general, react out of rage, and that their emotions will only get in the way of their judgment. And it's also reasonable to ask whether the testimony of the victims in this case will add anything of value, since, as the district judge acknowledged, he already knew what they would say. While emotions can undoubtedly skew our judgment, I think the opposite can be true as well: sometimes, it's only through a proper emotional response to a situation that we know how we ought to act. Even when a judge knows all the abstract principles two grieving parents might speak to, he might not *really* appreciate the consequences of a crime until he's actually confronted by those parents and has to see what that grief looks and sounds like.

In at least one area, modern sentencing procedure does recognize that the emotional communication to the judge of already-known information valuably serves the purposes of sentencing. Before being sentenced, a criminal defendant has what's called a "right to allocute," a right basically to state to the court whatever he wants to say before being sentenced. The reason for this is not that the defendant might reveal new evidence or convince the judge he's innocent; it's probably very rare that the defendant says anything new or unexpected. The reason, in the words of the Supreme Court, is that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. U.S., 365 U.S. 301, 304 (1961). Applying this principle, the 3rd Circuit explained that "denying [the defendant] his right of allocution was tantamount to denying him his most persuasive and eloquent advocate. And the district court was likewise denied the opportunity to take into consideration [the defendant's] unique perspective on the circumstances relevant to the sentence, delivered by his own voice." U.S. v. Adams, 252 F.3d 276, 288 (3d Cir. 2001). See also U.S. v. Prouty, 303 F.3d 1249 (11th Cir. 2002) and U.S. v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994) for more on this.

So, what does this have to do with statutory interpretation? Well, some theorists believe that the interpretation of a statute should depend, at least in part, on the purposes the statute was created to serve. If you think that crime victims add little of value to the sentencing process, you might be inclined to interpret the statute narrowly. But if you think they add something of value even when they say nothing new or unexpected, you might be inclined to interpret the caustion requirement more broadly. Your post hit on all the right things that need to be considered when interpreting the statute.

Posted by: Chris-the-sort-of-T.A. | Jan 15, 2008 12:32:15 PM

I think that my statement might have been a little misinterpreted, I do not believe that the testimony at the sentencing of the victim does not add value to the sentencing process. I believe it can make a difference depending on the particular judge and facts surrounding the case. I do not think it is necessary to add the testimony of victim's parents during the sentencing of the gun supplier in this particular case. From what I understand, the gun supplier did not have any knowledge of what the perpetrator was going to do and the tragic events occurred a relative period of time later. I I don't know if the perpetrator knew the kid was 17 and for that he was negligent. But when determining proximate causation in this case, the time period between when the gun was purchased and the knowledge of the perpetrators intentions shows less moral blameworthiness on the gun salesman. For that reason, I believe that the testimony of the parents will add little value in this case.

Posted by: J.Neal | Jan 16, 2008 12:24:26 PM

I worked in Victim Notification and as a Victim Assistant in the Franklin County Prosecutor's Office, so victim's rights are something I feel are vitally important, and often overlooked. As students of the law we often get wrapped up in the exact wording of statutes or the practical outcomes (what will this accomplish as far as affecting the defendant's sentence, affecting the process, etc.), and I feel it's important to keep a human face on the proceedings.

I agree with our sort-of-TA when he argues, "Even when a judge knows all the abstract principles two grieving parents might speak to, he might not *really* appreciate the consequences of a crime until he's actually confronted by those parents and has to see what that grief looks and sounds like," and I would like to add to that that the defendant is often in the same position. He often selfishly and unthinkingly committed a crime, with absolutely no regard for the impact on the victim, and I have seen defendants who sat passively through entire trials break down only when the victim or victim's family had their moment to speak. It's an extremely emotional moment, obviously for rape or murder cases, but even for cases that we might think of as unimportant or less traumatic. In theft or burglary cases with low-income victims, the crime might have had a huge impact on the person's life (car stolen - person loses job, things stolen - no money to replace the items) or sense of safety in his or her own home/neighborhood.

This leads to the other crucial part of this statute, which is giving the victim a chance to say what he or she wants to say. This is an opportunity for a victim, who often has very little voice throughout the process up until this point (the prosecutors follow the normal procedures, often needing minimal input from the victim), to personalize the crime and feel as if he has been heard. The victims often feel helpless throughout the crime and even the court proceedings; this statute, and similar statutes, allows the victim to vent and interject into the process. Even if what he says has no impact on the sentence, or the defendant, the victim often feels such a sense of relief and closure after being allowed to say his piece.

I only ramble about all of this to bring up the point that sometimes statutes have effects that go far beyond procedures or practical changes, and when evaluating the statute, it is important not to forget these other considerations.

Posted by: Kristen T. | Jan 16, 2008 4:03:27 PM

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