Chapter 3 Supplement Specific Justice Systems

and Victims' Rights

• During 1998, U.S. Attorneys initiated investigations involving 115,692 suspects for possible violations of federal law. Almost a third (32%) of those investigated were suspected of a drug violation (BJS September 1999).

• Between 1994 and 1998, investigations initiated by U.S. Attorneys have increased by 16.5%--from 99,251 to 115,692. Investigations for immigration violations increased from 5,526 to 14,114; investigations for drug offenses increased from 29,311 to 36,355 (Ibid.).

• Criminal charges were filed against 78,172 defendants in U.S. district courts during 1998--a 25% increase since 1994 (Ibid.).

• In 1998, 89.9% of defendants charged with felonies were convicted in cases terminating in U.S. district courts. This conviction rate was about the same for all major offense categories: 90.1% of violent offenses, 89.8% of property offenses, 89.1% of drug offenses, and 91.3% of public-order offenses (Ibid.).

• Of the 50,494 offenders convicted of felonies and sentenced in U.S. district courts during 1998, a total of 40,879 were sentenced to prison. Another 7,208 were sentenced to probation only (Ibid.).

• During 1998, 92,813 offenders were under federal community supervision. Supervised release has become the primary form of supervision in the federal system: 59.1% of offenders were on supervised release compared to 34.7% on probation, and 6.3% remaining on parole (Ibid.).

• On September 30, 1998, 107,912 offenders were serving prison sentences in federal prison; 58% were incarcerated for a drug offense; 11% for a violent offense; 8% for a weapons offense; 8% for a property offense; 7% for an immigration offense; and 8% for all other offenses (Ibid.).

A highly significant development in the federal criminal justice system pertaining to victims and witnesses of federal crime is the newly released revisions to the Attorney General Guidelines for Victim and Witness Assistance. In October 1996, the Attorney General created the Deputy Attorney General's (DAG) Victims' Rights Working Group, and assigned to it the task of revising the 1995 version of the AG Guidelines. Major goals of the revision were to: (1) update the document with new federal laws pertaining to victims; (2) provide more explicit guidance to the field on "difficult issues" that had never been fully resolved by the Department of Justice; and (3) change the format of the document to make it easier to use.

In accordance with these goals and objectives, the 2000 AG Guidelines incorporate a number of changes in both substance and format. These changes have made the AG Guidelines easier to use and more comprehensible. With respect to format, separate sections were created specifically for the use of the investigative, prosecutive, and correctional personnel to which they applied. Statutory and rule citations were attached to the corresponding guidelines so that the user could refer directly to their text. Finally, a commentary section was added at certain points throughout the document in order to provide additional clarification, guidance, and practical suggestions on how to implement the law and policy that the document contained.

With respect to the substance of victims' rights and services, the revised 2000 AG Guidelines provide the following clarification and guidance:

• Clarification regarding the mandatory nature of the Guidelines. Traditionally, the AG Guidelines incorporated the "best efforts" standard contained in 42 U.S.C. §10606 regarding the provision of services. Thus, Department of Justice (DOJ) employees were instructed to use their "best efforts" to provide victims with the services listed in the statute. A closer examination suggested, however, that the provision of victims' rights statutory services was instead mandatory in nature. At the request of the OVC Director, DOJ's Office of Legal Counsel (OLC) prepared and issued an Opinion that the victim service requirements of 42 U.S.C. §10607 are indeed mandatory.

• Clarification regarding employee discretion. OLC's legal opinion recognized that although 42 U.S.C. §10607 as modified mandated DOJ personnel to provide victims with the described services, it also appeared to allow for individual judgment in determining "how, when and in some cases, whether to provide the services." Accordingly, a new section was added to the 2000 AG Guidelines concerning "Reliance on the Sound Judgment of DOJ Officers and Employees." This section provides that employees must use their discretion in deciding how best to accord rights and services required under federal law.

• Clarification regarding the definition of "victim." In order to address the many issues that have arisen from the field concerning who qualifies as a victim for the purposes of statutory and guidelines rights and services, a lengthy commentary section was included after the statutory definition (42 U.S.C. §10607 (e)(2)). Several major areas of concern are addressed by the commentary, including:

- The "innocent victim" issue. OLC suggested, and all DOJ components participating on the DAG's Victims' Rights Working Group revisions agreed, that Departmental policy should exclude persons who are culpable for the crime being investigated or prosecuted from being considered victims. The policy does not exclude from victim status, however, persons who may be culpable for some other offense or crime. This example cites persons who may be illegal aliens who are victims of involuntary servitude, victims of witness intimidation, incarcerated persons who are victimized in prison, and persons who may be victims of the excessive use of force by law enforcement officers.

- "Direct" versus "indirect" victims. The commentary section also addresses the distinction between direct and indirect victims. Specifically, it states that only those persons suffering direct physical, emotional, or pecuniary harm are considered victims for purposes of AG Guidelines rights and services. DOJ personnel are not prohibited in their discretion, however, from assisting indirect victims to the extent deemed appropriate.

- Victims of juvenile offenders. The 2000 commentary section discusses at length legal distinctions concerning proceedings involving juvenile offenders, and limits on information that may be provided to or solicited from victims of juvenile offenders by investigators and prosecutors. One significant exception is cited that allows the corrections agency to respond to a victim's inquiry about the final judicial disposition and projected release date as computed on the date when the juvenile sentence is imposed.

• Clarification regarding consultation with a government attorney. A new provision in the 2000 AG Guidelines gives specific guidance on consultation between victims and government attorneys, and sets a standard of "reasonableness." The provision states that, in general, federal prosecutors should use their "best efforts" to consult with victims about major case events, and cites Congress' specific suggestion that victims' views be obtained about case disposition matters such as dismissals, release of the accused pending judicial proceedings, plea negotiations, and pretrial diversion. Specific instruction is then provided concerning consultation about plea bargains, indicating that "reasonable efforts" should be made to notify identified victims of, and consider their views about, any proposed or contemplated plea negotiations. In order to determine what is "reasonable," the official is instructed to "consider factors relevant to the wisdom and practicality of giving notice and considering views in the context of the particular case . . ." These factors may include the impact on public safety and risks to personal safety, number of victims, the need for confidentiality, and certain other considerations.

• Guidance for helping to protect victim privacy. The guideline pertaining to victim privacy cautions staff of the prosecutor's office not to needlessly or carelessly reveal private victim information to any person. Further, in order to ensure that the language used in the AG Guidelines pertaining to victim privacy is consistent with the DOJ's public position on discovery of witnesses' names and addresses, language contained in the 2000 edition was revised to provide that the names and addresses of victims and witnesses should be disclosed to the defense only pursuant to proper discovery procedures under Federal Rule of Criminal Procedure 16, any local rules or customs, any court orders, or special prosecutorial need.

• Guidance for providing rights and services in cases with large numbers of victims. Implementing AG Guidelines provisions presents serious challenges as the number of identified victims in a single case grows into the hundreds and thousands. A new guideline has been added that encourages DOJ employees to attempt to have "personal and individual contact" with victims. In so doing, responsible officials are instructed to "use the means, given the circumstances, most likely to achieve actual contact with and notice to victims." DOJ personnel are cautioned to "carefully evaluate the type of information relayed and the method of communicating the information" in order to ensure that neither the investigation nor the victims' privacy are compromised. A variety of methods for achieving this end are suggested in the commentary to the section.

• Guidance regarding post-sentencing notification responsibilities. Victims' rights statutes require DOJ employees to notify victims of a variety of case events. Traditionally, this has been interpreted to apply only to trial court proceedings and has not been considered to cover appellate and other post-sentencing matters. A newly-added guideline instructs employees to make "reasonable efforts" to notify identified victims about post-sentencing filings and court proceedings, including appeals and other post-conviction relief proceedings. As with the provision pertaining to consultation, certain factors are cited that help determine what is "reasonable," including the impact on public safety and personal safety, the nature of the relief sought, the number of victims, and certain other considerations.

• Establishment of mandatory training requirement. In order to ensure the highest level of compliance with mandated rights and services, the revised AG Guidelines make it mandatory for DOJ agencies to distribute the AG Guidelines to employees and provide at least one hour of training on the victims' rights laws and AG Guidelines within sixty days of an employee taking over responsibilities that will bring him or her into contact with victims of federal crime. Additional training on new laws is required as needed.

• Addition of new laws. Finally, the revised AG Guidelines incorporates new laws passed since 1995. Of particular significance are two new provisions that came out of the Oklahoma City bombing case. First, a provision allows for closed circuit televising of the trial to victims if the court orders a change of venue of more than 350 miles from the court where the case would normally be tried. A second provision gives victims who are not trial witnesses, but who may testify during the sentencing phase, the right to attend the trial.

In the foreword to the 2000 Attorney General Guidelines for Victim and Witness Assistance, Attorney General Janet Reno states that "The Guidelines reflect my strong belief that victims should play a central role in the criminal justice system and my commitment that all components of the United States Department of Justice respond to crime victims with compassion, fairness, and respect, in accordance with the letter and spirit of the law."

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