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104 J. Crim. L. & Criminology 59, *68

developed considerable evidence that Jeffrey Epstein, a billionaire with extensive political and social connections, 41 had sexually molested more than thirty young girls between 2001 and 2007 at his West Palm Beach mansion. 42 The U.S. Attorney's Office entered into contentious plea negotiations with Epstein over how the case should be resolved. The prosecutors initially sought a resolution that would have required Epstein to plead guilty to at least a felony sex offense. After pressure from Epstein, for reasons that have never been clearly explained, 43 the U.S. Attorney's Office agreed to enter into a nonprosecution agreement. Under the agreement, the U.S. Attorney's Office agreed not to prosecute him and, in exchange, Epstein agreed to plead guilty to two state felonies for soliciting prostitution with a minor. After entering those guilty pleas, Epstein was sentenced to only eighteen months in state jail. 44 No federal charges were ever filed and [*69] Epstein spent much of the jail term on "work release" to his luxurious office. 45

The U.S. Attorney's Office did not tell Epstein's victims about the nonprosecution agreement until well after it had taken effect. To the contrary, even after the nonprosecution agreement had been signed, the Office continued to tell the victims that the case was still "under investigation" and that they should be "patient." 46 When the victims learned of the agreement, two of them (Jane Doe Number One and Jane Doe Number Two) filed suit in federal court under the Crime Victims' Rights Act, arguing that the prosecutors had violated their CVRA right to confer as well as their right to be treated fairly. 47 The victims contended that prosecutors should have conferred with them about the nonprosecution agreement before it became final.

In response, the U.S. Attorney's Office argued primarily that it was under no obligation to extend the victims any rights under the CVRA. It was the Government's blunt position that "CVRA rights do not attach in the absence of federal criminal charges filed by a federal prosecutor." 48 In short, the Government argued it was not required to confer in any way with the victims, or even treat them fairly, because the CVRA was not yet in play. The issue is thus squarely framed: Is the Government correct in its assertion that it has no CVRA obligations in cases like the Epstein case where federal prosecutors never lodged federal charges against a suspect? In view of the CVRA's prominence, resolution of this issue may shed important light on the nature of crime victims' enactments and the breadth of the role that crime victims should have in the criminal justice process.

II. The CVRA's Application Before Formal Charges are Filed

To analyze the issue of whether the CVRA extends rights to crime victims before prosecutors have formally filed charges, it is useful to look at the CVRA's purposes, language, and judicial interpretations. This Part looks at each of these three issues in turn.

41 See, e.g., Paul Harris, Prince Andrew's Link to Sex Offender Jeffrey Epstein Taints Royalty in US, Guardian (Mar. 12, 2011), http://goo.gl/0I4vAE; Landon Thomas Jr., Jeffrey Epstein: International Moneyman of Mystery, N.Y. Mag., http://goo.gl/11Cayc (last visited Nov. 26, 2013).

42 See Jane Doe Motion, supra note 40, at 3-4; Abby Goodnough, Questions of Preferential Treatment Are Raised in Florida Sex Case, N.Y. Times, Sept. 3, 2006, at A19.

43 The U.S. Attorney responsible for the plea deal later revealed that after negotiations started, "what followed was a year-long assault on the prosecution and the prosecutors" by Epstein. Letter from R. Alexander Acosta, former U.S. Att'y, to Whom It May Concern (Mar. 20, 2011), reprinted in Conchita Sarnoff, Behind Pedophile Jeffrey Epstein's Sweetheart Deal, Daily Beast (Mar. 25, 2011, 3:17 AM), http://goo.gl/kyveiF. Acosta, however, claimed that the pressure did not influence the ultimate disposition of the case. Id.

44 Landon Thomas Jr., From Paradise to County Jail: A Billionaire Financial Adviser Will Serve 18 Months in Sex Case, N.Y. Times, July 1, 2008, at C1.

45 See Michele Dargan, Feds Say They Treated Epstein Victims Fairly, Palm Beach Daily News (Apr. 8, 2011, 7:23 PM), http://goo.gl/rTGDed; Conchita Sarnoff, Billionaire Pedophile Goes Free, Daily Beast (July 20, 2010, 7:05 PM), http://goo.gl/MSTi17.

46 See Jane Doe Motion, supra note 40, at 14, 16 (internal quotation marks and citations omitted).

47 See Emergency Victim's Petition for Enforcement of Crime Victim's Rights Act, 18 U.S.C. Section 3771 at 2, Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011) (No. 9:08-cv-80736-KAM).

48 United States' Response, supra note 40, at 7.

DAVID SCHOEN

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