The Volokh Conspiracy
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Last week I blogged about Courtney Wild, one of Jeffrey Epstein's sex abuse victims, who is seeking rehearing en banc before the Eleventh Circuit. Her petition asks the full Eleventh Circuit to rehear its earlier divided (2-1) ruling, rejecting Epstein's victims' appeal challenging a secret non-prosecution agreement giving immunity to Epstein and his coconspirators–a ruling I previously blogged about here.
The key issue at this point in this long-running litigation is whether the Crime Victims' Rights Act (CVRA) extends any protections to crime victims before the formal filing of federal criminal charges. Ms. Wild has argued that, for example, the CVRA's right to confer with prosecutors can apply before the filing of an indictment--a position supported by the Fifth Circuit and the district court in this case, as well as by a law review article I co-authored on the subject six years ago.
Today Ms. Wild received some significant amicus support for her petition for rehearing en banc. The congressional co-sponsors of the CVRA--Senator Dianne Feinstein and former Senator Jon Kyl, joined by former Senator Orrin Hatch--filed a brief stating directly that they had drafted the CVRA to provide rights to victims like Ms. Wild:
If anything, the Crime Victims' Rights Act is even more vitally important today than when it was first signed into law. But if permitted to stand, the panel decision will regrettably roll back the clock to the days before the Act, when "victims, and their families, were ignored, cast aside, and treated as non-participants in a critical event in their lives." 150 Cong. Rec. at 7296 (Sen. Feinstein). Rehearing en banc is needed to avoid that tragic result, restore nationwide uniformity on an exceedingly important issue of federal law, and vindicate the rights of crime victims across the Nation.
To its credit, the panel majority regrets that its decision does nothing to "prevent federal prosecutors from negotiating 'secret' plea and non-prosecution agreements, without ever notifying or conferring with victims." 955 F.3d 1196, 1221 (11th Cir. 2020). But respectfully, statutory text, legislative history, and judicial precedent all confirm that this miscarriage of justice is precisely what the Act prevents. See In re Dean, 527 F.3d 391, 395 (5th Cir. 2005) ("In passing the Act, Congress made the policy decision—which we are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached.").
In addition to the support from congressional leaders, Ms. Wild also received support from the National Crime Victims' Law Institute (NCVLI) and allied victims' organizations. The NCVLI brief explains:
This case involves a question of exceptional importance—whether the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, can attach before formal charges are filed. In the nearly 16 years since the CVRA's enactment, the panel decision is the first federal circuit to have held that the rights cannot attach. The panel decision is directly opposed to the only other federal circuit to have addressed this question. See In re Dean, 527 F.3d 391 (5th Cir. 2008) (per curiam).
The CVRA's plain language makes clear that it can attach pre-charging, a reading that aligns with Congress' intent to "correct, not continue, the legacy of poor treatment of crime victims in the criminal process." 150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). The panel's contrary decision rests on strained interpretation of the text and is premised on speculation that a contrary construction would produce impracticalities. Policy concerns are, however, best left to Congress. See Magwood v. Patterson, 561 U.S. 320, 334 (2010) (stating that the judiciary "cannot replace the actual text with speculation as to Congress' intent"). Further, the last twelve years belie the panel's fear of "risking a landslide". Op. 52. As the dissent correctly observed, "since the Fifth Circuit's 2008 decision and the District Court's 2011 decision, there has been no flood of civil suits by victims, no evidence of victims' abuse of their CVRA rights, and no prosecutors' complaints about impairment of their prosecutorial discretion." Op. 65 (Hull, J., dissenting).
Given the plain language, the panel's acknowledgment that it "is not implausible" that the CVRA attaches pre-charge, the clear legislative intent, and the undisputed reality that the victims endured "unspeakable horror" and were then "left in the dark—and, so it seems, affirmatively misled—by government lawyers," the panel's assessment that it was "constrained" to deny the petition strains credulity. Op. 2, 18. As the panel decision is in contradiction to both plain language and clear legislative intent—and creates a circuit split on an exceptional question of law—this Court should rehear this case en banc.
Of course, as Ms. Wild's attorney (along with my friend, Brad Edwards), I hope that these briefs attract the attention of the Eleventh Circuit and lead it to grant rehearing en banc in this very important crime victims' rights case.