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September 1, 2021

Might SCOTUS be interested in taking up victim rights issues surrounding the Jeffrey Epstein case?

I find it somewhat surprising that the US Supreme Court has not yet ever taken up any cases dealing with the Crime Victims' Rights Act (CVRA), the 2004 legislation which significantly expanded the statutory rights of federal crime victims and creates duties on federal courts to ensure these rights are respected.  But, as highlighted by this new Politico article, headlined "Jeffrey Epstein accuser asks Supreme Court to uphold victims' rights," a high-profile case now provides them with a remarkable new opportunity to take up CVRA issues.  Here are the basics:

A woman who accused Jeffrey Epstein of sexually abusing her beginning when she was 14 is asking the Supreme Court to rule that federal prosecutors violated her rights by failing to consult her before cutting what critics have dubbed a sweetheart deal with the since-deceased financier and philanthropist.

The so-called nonprosecution agreement precluded U.S. authorities in south Florida from bringing federal charges against Epstein, despite similar allegations from dozens of women, if Epstein pleaded guilty to two state felonies related to soliciting a minor for sex.

Lawyers for Courtney Wild are asking the justices to overturn an appeals court ruling from June that held that Wild could not use a civil suit to enforce her rights under the Crime Victims’ Rights Act, a law Congress passed in 2004 to guarantee victims of crime certain protections in the federal criminal justice system.

The 7-4 ruling from the full bench of the 11th U.S. Circuit Court of Appeals called the government’s actions in the case “shameful,” but concluded that while the statute gives victims rights to jump into federal criminal proceedings, it doesn’t allow them to sue when no such case was ever filed.

“The en banc decision leaves the Government free to negotiate secret, pre-indictment non-prosecution agreements without informing crime victims,” attorneys Paul Cassell, Brad Edwards and Jay Howell wrote in the high court filing.

Over at The Volokh Conspiracy, Paul Cassell yesterday had this lengthy post about his new cert petition under this full headline: "Was it Lawful for the Justice Department to Reach a Secret Non-Prosecution Agreement with Jeffrey Epstein Without Telling His Victims?: My cert petition to the U.S. Supreme Court asks it review the Eleventh Circuit en banc's decision concluding that Epstein's victims cannot enforce their right to confer with prosecutors under the Crime Victims' Rights Act because the Department never formally filed charges against Epstein." Here is how his post gets started (with links from the original):

Today I filed a cert petition with the U.S. Supreme Court, asking it to review whether crime victims can enforce their rights under the Crime Victims' Rights Act (CVRA) before prosecutors file charges.  The petition, filed by one of the nation's leading crime victims' attorneys, Bradley J. Edwards, and me on behalf of one of Epstein's victims — Courtney Wild — seeks review of a 7-4 en banc decision from the Eleventh Circuit.  The Circuit held that the CVRA is only triggered when prosecutors file federal charges. Before then, according to the Eleventh Circuit, prosecutors are free to conceal from victims any deal that they may strike with the target of a federal investigation — as they did in the Epstein case.  This issue has sweeping implications for the proper enforcement of the CVRA, and we hope that the Court grants Ms. Wild's petition to review this very important legal question.

September 1, 2021 at 09:38 AM | Permalink


Even though Cassell is obnoxious as a person, I am sympathetic on this particular legal issue. And I say that as someone who usually dislikes these "victims' rights" initiatives because they prejudice defendants and undercut due process. But here specifically, I don't see a huge problem with the consultation right being sought.

Probably SCOTUS won't grant cert, but it would exciting if they do, especially in this climate. You have the Cosby decision, which implicates at least some related issues, if not the exact same ones. It's also interesting to think about the 1/6 insurrection and the victims of that. Given the nature of the crime, are the victims the entire U.S. public?

But even if SCOTUS does take the case, I don't really see enough votes to reverse CA11. As I understand it, DOJ has been fighting this across administrations of both parties and I think the desire to protect DOJ prerogatives is strong among SCOTUS Justices too. Plus, a ruling for DOJ here doesn't require approving of what Epstein did either, or even taking any position on his actions whatsoever. But, who knows really.

Posted by: kotodama | Sep 1, 2021 10:49:11 AM

I don't see the Court touching this case. Maybe if he were still alive but even that's a stretch.

Mostly, what relief would it give these particular women to say that the government should have consulted them before entering the NPA? Cases generally require redressability and I just don't see that being present here, a favorable ruling simply wouldn't give these particular petitioners anything they don't already have.

Posted by: Soronel Haetir | Sep 1, 2021 11:56:07 AM

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