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104 J. Crim. L. & Criminology 59, *96

In view of the Department's existing notifications and provision of services before charges are filed under the VRRA, it is hard to conceive how any viable claim could be made that it would be difficult to provide similar rights under the CVRA. The four rights that would be potentially in play before charging would be the right to reasonable protection, the right to fair treatment, and the right to confer with prosecutors, along with the predicate right to notice of these rights. 212 The VRRA already requires the Department to provide reasonable protection, so this would not be an expanded obligation. 213 Similarly, the Guidelines already require prosecutors to confer with victims about plea agreements (the most common situation where victims want to confer), so it is hard to imagine how extending this right would create any undue burden. 214 Additionally, the right to "fair treatment" could only be a problem if the Department [*97] wanted to treat victims unfairly. Given its repeated and professed commitment to crime victims, here too this obligation should not be burdensome. And finally, with regard to providing notice of CVRA rights to victims, the fact that the Department currently provides notice of VRRA rights indicates that it should not be difficult to provide notice of CVRA rights as well.

Indeed, it is possible that the Department's notification letters under the VRRA already include this information. Interestingly, in the Epstein case, the FBI notified Jane Doe Number One and Jane Doe Number Two that they had rights in the criminal justice process. As early as June 7, 2007 - more than three months before it concluded a nonprosecution agreement with Epstein - the U.S. Attorney's Office sent a notice to Jane Doe Number One stating "your case is under investigation." 215 The notice also informed Jane Doe Number One that "as a victim and/or witness of a federal offense, you have a number of rights." 216 Among the rights that the U.S. Attorney's Office told Jane Doe that she possessed was "the reasonable right to confer with the attorney for the United States in the case." 217 Of course, she would not have had those rights if she was not covered by the CVRA. The FBI therefore apparently assumed that the CVRA already applied in the Epstein case. It was only later, when the matter went into litigation, that the Department of Justice reversed course. This change in course underscores the problems arising out of the OLC memorandum and the Department's current interpretation of the CVRA.

D. STATE LAW EXTENSION OF PRE-CHARGING RIGHTS

The focus of this Article so far has been crime victims' rights in the federal system. But in concluding, it is instructive to note how a number of states offer parallel rights for crime victims, including the right to confer with prosecutors. In fact, several states have extended such rights prior to formally filing of charges against defendants - without reported difficulty, so far as we are aware. This confirms our inference that extending CVRA rights to crime victims before the formal filing of criminal charges is both feasible and desirable.

A general overview of state laws illustrates the broad protections afforded to victims in state criminal justice systems. Nearly two-thirds of states have adopted constitutional provisions to protect victims throughout [*98] the criminal justice process. 218 Moreover, every state has adopted a statute that either enforces its constitutional amendment or creates independent statutory rights for crime victims. 219 As a result, state legislatures and state employees have attempted to give victims a voice in the criminal justice process across the country.

212 18 U.S.C. § 3771(a)(1), (5), (8), (c)(1) (2012).

213 See 42 U.S.C. § 10607(c)(2) (2006).

214 See Attorney General Guidelines, supra note 52, at 41-42.

215 Letter from A. Marie Villafana, Assistant U.S. Att'y, to Jane Doe #1 (June 7, 2007), reprinted in Jane Doe Motion, supra note 40, at ex. C.

216 Id.

217 Id.

218 See Victims' Rights Laws by State, Nat'l Crime Victim L. Inst. (Oct. 17, 2013), http://goo.gl/pdDx1w (listing and linking to state laws and constitutional amendments).

219 See LaFave et al., supra note 168, § 21.3(f), at 1041-42.

DAVID SCHOEN

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