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2007 Utah L. Rev. 861, *874

to be given real world application. To be sure, it is a broad right - akin to the defendant's broad right to "due process of law." 81 But to implement that right in the criminal rules is not "creating new victims rights not based upon the statute," as the Advisory Committee puts it, but simply implementing a clearly articulated congressional command.

It is a "cardinal principle of statutory construction" that effect must be given to every word in a statute. 82 Under the Advisory Committee's approach, the congressional directive that crime victims be treated fairly will have no effect on [*875] any of the Rules. The fairness directive will, in other words, be rendered mere surplusage - something that the Supreme Court has repeatedly cautioned against. 83

The Advisory Committee also admits that it is interpreting the CVRA narrowly, contrary to the standard rule that remedial legislation is to be construed broadly. 84

In addition, the Advisory Committee's approach flouts the declared intentions of the Act's drafters. There is no need to guess about Congress's intent on the right of fairness. Senator Kyl, who cosponsored the CVRA with Senator Feinstein, explained quite directly that Congress meant for the right to have substantive content:

The broad rights articulated in this section [section 8, mandating victims be treated with fairness along with dignity and respect] are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. 85

Nor is there any doubt that Congress intended this command to reach the judiciary, including judicial branch components like the Advisory Committee. Again, Senator Kyl specifically addressed this point:

Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision [section 8] is intended to direct government agencies and employees, whether they are in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process. 86

The Advisory Committee's decision not to treat fairness as an enforceable right is so at odds with the CVRA's legislative history that one becomes curious as to why the Advisory Committee determined not to follow it. The Advisory Committee also diverged from the legislative history in several other areas. 87 In reviewing the Advisory Committee's records, however, notably absent is any mention of legislative intent. The Advisory Committee does not cite the statute's [*876] legislative

treated with fairness, compassion and respect by the criminal justice system"); N.M. Const. art. II, § 24(A)(1) (the "right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process"); Ohio Const. art. I, § 10a (victims "shall be accorded fairness, dignity, and respect in the criminal justice process"); Tex. Const. art. I, § 30(a)(1) ("right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process"); Utah Const. art. I, § 28(1)(a) (victim's right to be "treated with fairness, respect, and dignity"); Wisc. Const. art. I, § 9m (victim's right to be treated with "fairness, dignity and respect for their privacy"). See generally Cassell, Balancing the Scales, supra note 6, at 1387-88 (discussing victim's right to fairness in Utah).

80 18 U.S.C. § 3771(a) (emphasis added).

81 U.S. Const. amend. V; see also U.S. Const. amend. XIV (due process right in state proceedings).

82 See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)).

83 See, e.g., Babbit v. Sweet Home Chapter of Comtys. for a Great Or., 515 U.S. 687, 698 (1995).

84 See, e.g., Hughes v. Box, 814 F.2d 498, 501 (8th Cir. 1987); Gardner & N. Roofing & Siding Corp. v. Bd. of Governors of Fed. Reserve Sys., 464 F.2d 838, 841 (D.C. Cir. 1972).

85 150 Cong. Rec. 4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added); see also 150 Cong. Rec. S10,911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).

86 150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added); see also 150 Cong. Rec. 4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).

87 See, e.g., infra notes 437-443 (noting rejection of Senators Feinstein's and Kyl's views on the right to be heard on issues affecting victims' rights); infra note 488-493 (noting rejection of Senator Kyl's views on the right to be heard on speedy trial issues).

DAVID SCHOEN

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