The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today in a divided 2-1 decision, the 11th Circuit rejected a petition for crime victims in the Jeffrey Epstein case, filed by Florida crime victims' attorney Brad Edwards and me. In a 120-page ruling (containing three separate opinions), the Circuit held that the Crime Victims' Rights Act (CVRA) does not apply until federal criminal charges are formally filed, and therefore Epstein's victims were not entitled to challenge a non-prosecution agreement reached between federal prosecutors and Epstein.
As I have blogged about before, the case involves more than eleven years of litigation by Epstein's victims, seeking to overturn a non-prosecution agreement entered into by the U.S. Attorney's Office for the Southern District of Florida with Epstein, blocking his prosecution (and that of his co-conspirators) for federal child sex abuse crimes in Florida.
In today's decision (written by Judge Newsom), the majority said that the facts tell "a tale of national disgrace," including "active misrepresentation" by federal prosecutors of Epstein's victims to conceal what they were doing to keep Epstein from being federally prosecuted. But today's ruling also says that, because no federal criminal charges were ever filed in Florida, Epstein's victims (girls whom he sexually abused) did not have any right to confer about the plea arrangements because the CVRA was never in effect. The majority lamented this conclusion, but said that the Congress had not written the Act broadly enough to protect Epstein's victims:
It isn't lost on us that our decision leaves petitioner and others like her largely empty handed, and we sincerely regret that. Under our reading, the CVRA will not prevent federal prosecutors from negotiating "secret" plea and nonprosecution agreements, without ever notifying or conferring with victims, provided that they do so before instituting criminal proceedings. We can only hope that in light of the protections provided by other statutes—and even more so in the wake of the public outcry over federal prosecutors' handling of the Epstein case—they will not do so.
The question before us, though, isn't whether prosecutors should have consulted with petitioner (and other victims) before negotiating and executing Epstein's NPA. It seems obvious to us—and, indeed, the government has expressly conceded—that they should have. Our sole charge is to determine, on the facts before us, whether the CVRA obligated prosecutors to do so. We simply cannot say that it did.
In reaching this conclusion, the majority noted that I had written a law review article (along with Brad Edwards and Nate Mitchell), in which I had explained why the CVRA can apply even before federal criminal charges are filed. But the majority found this article ultimately unpersuasive–even though my article took exactly the same position that as one of the CVRA's two co-sponsors, Senator Jon Kyl. As he explained in a letter to the Justice Department in 2011:
When Congress enacted the CVRA, it intended to protect crime victims throughout the criminal justice process–from the investigative phases to the final conclusion of a case. Congress could not have been clearer in its direction that using "best efforts" to enforce the CVRA was an obligation of "… [o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime …."18 U.S.C. §3771(c)(l) (emphasis added). Congress also permitted crime victims to assert their rights either in the court in which formal charges had already been filed "or, if no prosecution is underway, in the district court in the district in which the crime occurred." 18 U.S.C. §3771(d)(3) (emphases added).
In a sixty-page dissent, Judge Hull agreed with Senator Kyl and noted the importance of the ruling: "The Majority confesses that '[i]t isn't lost on us that our decision leaves petitioner and others like her largely emptyhanded' and 'we sincerely regret that.' In addition to ruminating in sincere regret and sympathy, we, as federal judges, should also enforce the plain text of the CVRA—which we are bound to do—and ensure that these crime victims have the CVRA rights that Congress has granted them."
My client—the courageous Courtney Wild—had this to say about today's decision:
This is impossible to understand – the government intentionally misled the victims but found a way to get away with it by working with a child molester to get around the law. And the Judges ruled in their favor. How?
That's a great question. And Mr. Edwards and I plan to file a petition for rehearing en banc with the full Eleventh Circuit. This holding that victims can be intentionally deceived by federal prosecutors until the prosecutors choose to file an indictment conflicts with an earlier ruling by the Fifth Circuit—and cries out for further review.