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2014] CRIME VICTIMS' RIGHTS 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

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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.

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