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May 15, 2009

Scholarly concerns about the CVRA

Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act.  But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration.  Here is the abstract:

The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution.  Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants.  Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case.  Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion.  Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant.  An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.

May 15, 2009 at 07:53 AM | Permalink


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Gives more reason to like the CVRA, though, to those who aren't big fans of untrammelled prosecutorial discretion (see, e.g., http://ssrn.com/abstract=1100121 at 303-308).

Posted by: Chris | May 15, 2009 2:36:43 PM

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