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104 J. Crim. L. & Criminology 59, *82

Senator Kyl further commented that he had discussed the CVRA's potential application in grand jury proceedings, an application that required the Act [*83] to extend rights before indictment. 134 Thus, if anything, the legislative history does not support OLC's conclusion - it contradicts it. 135

OLC should have had no doubt as to the intent of Senator Kyl and his cosponsors at the time of the Act's passage. Shortly after shepherding the CVRA through the Congress, Senator Kyl cowrote a law review article about the Act. 136 In that article, he directly indicated that the CVRA applies before charges are filed. Senator Kyl and his coauthors wrote:

While most of the rights guaranteed by the CVRA apply in the context of legal proceedings following arrest and charging, other important rights are triggered by the harm inflicted by the crime itself. For example, the right to be treated with fairness, the right to be reasonably protected from the accused (who may qualify as the accused before his arrest), and the right to be treated with respect for the victim's dignity and privacy each may arise without regard to the existence of legal proceedings. 137

Remarkably, OLC cited Senator Kyl's law review article (in a footnote), but then concluded without explanation that the CVRA cosponsor's views were for some reason different than Congress's. 138

OLC also appears to acknowledge that its interpretation of the CVRA could well contradict what it describes as prosecutorial "good practice." 139 OLC noted that some Justice Department components (for example, the Environmental and Natural Resources Division) had advocated that the right to confer should apply during pre-charging plea discussions. 140 OLC then acknowledged that limiting the right to confer until after formal charging could "reduce the impact of a victim's participation in subsequent court proceedings." 141 OLC attempted to dodge this problem by explaining: "The question before us, though, is not whether it would be advisable as a matter of good practice ... for Government attorneys to confer with victims pre-charge when appropriate ... ." 142 OLC then explained that even under its narrow interpretation of the statute, "the CVRA would still ensure that [*84] the victim has an opportunity to be heard by the court, and by the Government, before the court accepts the plea." 143

But OLC failed to recognize that its interpretation of the CVRA rendered the right to be heard a nullity in many important cases - including, notably, the Epstein case. 144 Where prosecutors and defense attorneys work out a nonprosecution agreement that agreement will never be presented to a court for review. Thus, in cases where the need for victim participation may be the greatest - that is, in cases where the Government is considering never filing any charges - OLC's interpretation would bar victims from having any rights at all.

Even in situations where a prosecutor works out a plea agreement, OLC's interpretation is problematic. As OLC recognizes, prosecutors and defense counsel commonly work out pre-indictment plea agreements (particularly in white-collar cases), under

134 Id.

135 Attorney General Holder never sent a response to Senator Kyl's letter. But Assistant Attorney General Ronald Weich sent a belated response. Letter from Ronald Weich, Assistant Att'y Gen., to Jon Kyl, U.S. Sen. (Nov. 3, 2011) (on file with authors). That response did not address Senator Kyl's concern that his remarks were being quoted out of context.

136 See generally Kyl et al., supra note 19.

137 Id. at 594.

138 OLC CVRA Rights Memo, supra note 2, at 8 n.7.

139 Id. at 10.

140 Id. at 9 (citations omitted) (discussing an interdepartmental memorandum addressing this question).

141 Id. at 10.

142 Id.

143 Id.

144 The OLC opinion was publicly released on May 20, 2011. Perhaps not coincidentally, this release date was shortly before the Government filed its response in the Epstein case.

DAVID SCHOEN

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