Attachment to Attorney General February 28, 2000 Memorandum on Victim and Witness Assistance
Attachment I. The Revised AG Guidelines
The Department of Justice policy on treating crime victims and witnesses is contained in the Attorney General Guidelines for Victim and Witness Assistance or AG Guidelines. A Department working group led by the Deputy Attorney General revised, simplified, and updated the AG Guidelines for this 2000 edition. Representatives of all components who come into contact with crime victims assisted in the process, and the final AG Guidelines were approved by all components. One of the more significant changes involved incorporating an Office of Legal Counsel (OLC) opinion on the mandatory nature of the victim services laws. The effective date for the new 2000 edition of the AG Guidelines is January 31, 2000.
There are ten significant changes in the 2000 edition of the AG Guidelines:
1. Format Changes
The new edition incorporates several format changes to make the document easier to use. In the 1995 edition, guidelines applicable to investigators, prosecutors and corrections personnel were commingled; this made it very difficult for an employee to determine which responsibilities applied to him or her. The 2000 edition is divided into separate sections for investigative, prosecutorial, and corrections personnel, so that employees can turn to the section for their job description to locate the applicable guidelines. It also includes statutory and rule citations to the corresponding guidelines so that employees can refer to the text of the statute or rule that relates to the guideline. Finally, the Guidelines include a brief "commentary" section which provides clarification, guidance and suggestions on how to implement the law and policy contained in the AG Guidelines.
2. The Mandatory Nature of the Guidelines and Employee Discretion
The 2000 edition of the AG Guidelines incorporates OLC's determination that the victim-services provisions under 42 U.S.C. § 10607 are mandatory. OLC's analysis of the basic Federal victims rights statutes, 42 U.S.C. §§ 10606 and 10607, explains the difference between the Department's obligations under § 10606 to make its "best efforts" to accord victims enumerated rights, and the Department's mandatory obligation under § 10607 to provide certain services to victims.
Section 10606, entitled "Victims' Rights," provides that crime victims have certain rights, and directs that Department officers and employees "shall make their best efforts to see that victims of crime are accorded [those] rights." These rights are stated in general terms, and include some matters over which a Department officer or employee has only limited, if any, control. In contrast, § 10607, entitled "Services to Victims," is much more specific, directing that Department employees "shall" take certain actions. It contains no "best efforts" language, and all of the services it describes are both specific and within the control of Department officers and employees. The services mandated by the statute fall into three general categories:
(1) identifying victims, 42 U.S.C. § 10607(b)(1);
(2) informing victims about how to obtain various forms of assistance (such as medical treatment, counseling and social services) and the corrections process in general, as well as providing notice at "the earliest possible" time of a variety of developments in the investigation, prosecution and punishment of the suspected or convicted offender, id. § 10607 (c)(1), (3), (5), (8); and
(3) arranging for reasonable protection for victims from the offenders and those acting on the offender's behalf, as well as providing separate waiting areas for victims during court proceedings, id. § 10607(c)(2), (4).
OLC has determined that the terms of § 10607 are mandatory, and therefore must be applied to victims. Indeed, it is worth noting that a recent Eleventh Circuit decision permitted the Government to be sued for civil damages based on the failure of an Assistant United States Attorney to provide mandatory information as required by the Guidelines. Ochran v. United States, 117 F.3d 495 (11th Cir. 1997).
The mandatory nature of the victim-services provisions, however, does not preclude the exercise of discretion by Department officials. Section 10607 includes language permitting Department officials to use discretion and judgment in satisfying these mandates. In some instances this discretion extends to whether providing the relevant services is reasonable in a given case, see § 10607(c)(2) ("[a] responsible official shall arrange for a victim to receive reasonable protection from a suspected offender . . ."), and in other circumstances, it concerns when, where, how, and to what extent to provide the service, see § 10607 (c)(3) & (5) (providing that responsible official "shall" provide notice of certain case events to victims at "the earliest possible opportunity").
The revised AG Guidelines incorporate the OLC opinion in two ways. First, Article I, Section B., "Background", states that "the statute [42 U.S.C. § 10607] as modified mandates that Federal personnel provide victims with the described services, although it appears to allow for individual judgment in determining how, when and in some cases, whether to provide the services". Second, Article I, Section D, entitled "Reliance on the Sound Judgment of DOJ Officers and Employees," explains that employees must use their discretion in deciding how best to accord victims the rights and services required under federal law. The section also explicitly explains that in the guidelines the word "shall" is used where "shall" appears in the statutory requirements, and is mandatory. The word "should" is used elsewhere and means that the employee is expected to take the action or provide the service described unless there is an appropriate articulable reason not to do so.
3. Definition of Victim (Art. I, E)
The revised AG Guidelines provide guidance concerning the definition of a victim for purposes of statutory and guidelines rights and services. The Guidelines use the definition of victim contained in 42 U.S.C. § 10607 (e)(2). Specifically, the Guidelines clarify that the definition of victim excludes persons who are culpable of the crime being investigated or prosecuted. Notably, this policy does not exclude from victim status individuals who may be culpable of some other offense or crime. Examples of such individuals include illegal aliens who are involuntary servitude victims, incarcerated persons who are victimized in prison and victims of excessive force by law enforcement officers.
Another issue addressed in the commentary section is the distinction between direct and indirect victims. The commentary includes several hypotheticals to assist employees in making this distinction. The commentary also points out that in some cases employees may want to provide services even though not strictly mandated to do so by the statutes or guidelines.
4. Cases with Large Numbers of Victims (Art. I, G)
While the methods for implementing AG Guidelines provisions are relatively straightforward in cases where the number of victims is limited, they can present challenges as the number of victims grows into the hundreds and thousands. Thus, the Guidelines include a new section on "Victims' Rights and Services in Cases with Large Numbers of Victims." Employees are encouraged to have personal and individual contact with victims. The Guidelines also suggest numerous creative methods of notifying and assisting victims in large cases.
5. Mandatory Training Requirement (Art. II, C)
The 2000 edition of the AG Guidelines mandates their distribution and requires at least 1 hour of training on the victims' rights laws and AG Guidelines within 60 days of an employee's taking over responsibilities that will bring the employee into contact with crime victims. In addition, the Guidelines require additional training on new laws as needed.
6. Post-Sentencing Notification (Art. IV, B, 2.a(5))
The victims' rights statutes require Government employees to notify victims of a variety of case events (42 U.S.C. § 10607 (c)(3)(D)). Traditionally, the law has been interpreted to apply only to trial court proceedings, and has not been considered to cover appellate and other post-sentencing matters. Article IV, section B, 2.a (5) instructs employees to make reasonable efforts to notify identified victims about post-sentencing filings and court proceedings, including appeals and collateral attacks. The Guidelines contain a list of factors for the employee to consider in determining what is reasonable.
7. Consultation with a Government Attorney (Art. IV, B, 2.b)
The 2000 edition includes a new provision that gives specific guidance on consultation between victims and Government attorneys while maintaining a reasonableness standard. The new provision states that in general Federal prosecutors should make their best efforts to consult with victims about major case events. The commentary section notes Congress' specific suggestion that the Government attorney obtain the victims' views about case disposition including: dismissals, release of the accused pending judicial proceedings, plea negotiations, and pretrial diversion.
The AG Guidelines also contain specific instructions concerning consultation about plea bargains. The new guideline states that "responsible officials should make reasonable efforts to notify identified victims of, and consider victim views about, any proposed or contemplated plea negotiations. In determining what is reasonable, the responsible official should consider factors relevant to the wisdom and practicality of giving notice and considering views in the context of the particular case, including, but not limited to, [a list of factors including the safety implications, any confidentiality needs, and the number of victims]." Art. IV, B, 2.b.
8. Victim Privacy (Art. IV, B, 2.e)
The revised language of this section provides that the names and addresses of victims and witnesses should be disclosed to the defense only pursuant to proper discovery procedures under Federal Rule of Criminal Procedure 16, any local rules or customs, any court orders, or special prosecutorial need. The guideline also cautions staff of the prosecutor's office not to needlessly or carelessly reveal private victim information to any person.
9. Addition of new laws
The 2000 edition AG Guidelines also incorporates new laws passed since 1995. First, there is a provision allowing for closed circuit televising of the trial to victims if the court orders a change of venue more than 350 miles from the court where the case would normally be tried. The guidelines instruct employees to notify victims of this provision in applicable cases and to facilitate its implementation if the victim so requests (Art. IV, B, 2.i). The second provision gives victims who are not trial witnesses, but who may testify at sentencing, a right to attend the trial. The 2000 edition instructs employees to notify victims of this right (Art. IV, B, 2.a (2)).
10. Victims' Declination of Services (Art. I, H)
The 1995 edition of the AG Guidelines did not contain any guidance on situations where victims decline services. The 2000 edition recognizes that victims may decline to receive services and that Justice Department employees need not provide services that victims have made an informed decision to decline.