April 18, 2023

 “Would you tell me, please, what that means?”

 By: Meg Garvin, NCVLI

On October 30, 2004, the Scott Campbell, Stephanie Roper, Wendy Preston, Lourarna Gillis, and Nila Lynn Crime Victims’ Rights Act (CVRA) was passed into law (later codified at 18 U.S.C. § 3771). This bi-partisan legislation affords victims explicit rights and the mechanisms by which victims can assert and seek enforcement of these rights in federal trial and appellate courts.

During the floor debate on the CVRA one of its primary sponsors made clear that it was designed to fix the “out of balance” criminal justice system, and to “correct, not continue, the legacy of the poor treatment of crime victims in the criminal process.” 150 Cong. Rec. S4262, S4269 (Apr. 22, 2004) (statement of Sen. Feinstein).

Now nearly 20 years after passage, what do we know about the meaning of the rights? Sadly, like Alice in her befuddling conversation with Humpty Dumpty in Through the Looking Glass, most of us are still asking, “Would you tell me, please, what that means?”

Why is this so?

In law, we come to know the scope and meaning of laws when courts issue decisions interpreting them. Doing a basic legal search of a common, national legal database reveals that as of May 2, 2024, 1,234 court decisions citing the CVRA since its passage. At first blush, this may seem like a lot of cases and therefore a lot of courts helping us to understand the meaning of the CVRA. Unfortunately, when one unpacks the numbers even a little different story is told.

Of these cases, only 327 have been issued from federal appellate courts, and of these only 190 are published federal appellate court cases. This means that at best there are 190 cases that may be precedential. So nearly 20 years after passage of a law designed to fundamentally alter the role of victims in criminal justice, we have an average of fewer than 10 cases per year helping us understand the rights.

[By way of an admittedly imperfect comparison, a search of the same database with the same court, date and publication filters, reveals that Miranda v. Arizona, a seminal case dealing with defendants’ rights, was discussed in at least 1,094 published decisions.]

What accounts for the relatively few cases on the CVRA?

Some may claim that the lack of court discussion is a positive indicator that the rights are readily understood, routinely afforded, and that there is no need for appellate clarification. However, a 2020 Eleventh Circuit decision, In re Courtney Wild, No. 19-13843, 2020 WL 1856393 (11th Cir. April 14, 2020), belies this claim. Its 120-page split panel decision (2-1) includes 60 pages of dissent and reveals contestation over some of the most fundamental aspects of the CVRA – e.g., when the rights attach.

A more likely answer is the lack of lawyers litigating the rights. The need for attorneys to secure meaningful rights has long been discussed. See, e.g., Powell v. State of Alabama, 287 U.S. 45, 69 (1932) (stating nearly 100 years ago in the context of defendants’ rights that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel”); Emily S. Taylor Poppe, Jeffrey J. Rachlinski, Do Lawyers Matter? The Effect of Legal Representation in Civil Disputes, 43 Pepp. L. Rev. 881 (2016) (reviewing empirical research indicating better outcomes for litigants with lawyers).

For victims’ rights to be filled with meaning they must be demanded in trial courts, appellate review must be sought, and published case law must issue. This is the role for victims’ rights attorneys; while prosecutors have standing to assert and seek enforcement of victims’ rights in many contexts, they are not and cannot be the victim’s attorney. Let’s stop wondering about the meaning of the CVRA rights and let’s start litigating!

To do this requires funding of lawyers. Sadly, while the CVRA included clear funding for lawyers when it first passed and for its first handful of years that funding has lapsed and few if any federal grants exist that help victims access no cost lawyers. If we are to make rights meaningful we need to step up and fund legal services!