Victim and Witness Protection Act of 1982

The VWPA was enacted to: (1) enhance and protect the necessary role of crime victims and witnesses in the criminal justice process, (2) ensure that the federal government does all that is possible within limits of available resources to assist victims and witnesses of crime without infringing on the constitutional rights of defendants, and (3) provide a model for legislation for state and local governments.

Victims of Crime Act of 1984, the Victims Compensation and Assistance Act, and Services to Victims

The Victims of Crime Act of 1984 (VOCA), established the Crime Victims Fund (Fund). The Fund consists of: (1) most fines collected from persons convicted of offenses against the United States; (2) penalty assessments collected under section 3013 of Title 18; (3) proceeds of forfeitures (appearance bonds, bail bonds, and collateral) under section 3146 of Title 18; (4) any money ordered to be paid into the Fund under section 3671 (c)(2) of Title 18; and (5) authorized gifts, bequests, or donations to the Fund from private entities or individuals. The money from this fund was initially to be used for state and local programs for victims of crime. Amended in 1988, the VOCA also legislatively created the Office for Victims of Crime (OVC) within the Office of Justice Programs (OJP). The VOCA was reauthorized and amended in 2005.

In the first session of the 105th Congress, the Fund received a $21 million repayment. Congress authorized these dollars for hiring victim/witness coordinators in the U.S. Attorney’s offices; establishing an automated victim information and notification system for federal cases; and collecting, enforcing, and processing restitution orders.

The VOCA also requires responsible officials to identify victims.⁵³ At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation, a responsible official shall: (1) identify the victim or victims of a crime; (2) inform the victims of their right to receive services (described below) on request; and (3) inform each victim of the name, title, and business address and telephone number of the responsible official to whom the victim should address a request for each of the services. Description of services provided under the VOCA are:

1. A responsible official shall inform a victim: (A) of the place where the victim may receive emergency medical and social services; (B) of any restitution or other relief to which the victim may be entitled under this or any other law and in a manner in which such relief may be obtained; (C) of public and private programs that are available to provide counseling, treatment, and other support to the victim; and (D) of assistance in contacting the persons who are responsible for providing the services and relief.

2. A responsible official shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender.

3. During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of: (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; (B) the arrest of a suspected offender; (C) the filing of charges against a suspected offender; (D) the scheduling of each court proceeding that the witness is either required to attend or, under section 10606 (b)(4) of this title, is entitled to attend; (E) the release or detention status of an offender or suspected offender; (F) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial; and (G) the sentence imposed on an offender, including the date on which the offender will be eligible for parole.

4. During court proceedings, a responsible official shall ensure that a victim is provided a waiting area removed from and out of the sight and hearing of the defendant and defense witnesses.

5. After trial, a responsible official shall provide a victim the earliest possible notice of: (A) the scheduling of a parole hearing for the offender; (B) the escape, work release, furlough, or any other form of release from custody of the offender; and (C) the death of the offender, if the offender dies while in custody.

6. At all times, a responsible official shall ensure that any property of a victim that is being held for evidentiary purposes be maintained in good condition and returned to the victim as soon as it is no longer needed for evidentiary purposes.

7. The Attorney General or the head of another department or agency that conducts an investigation of a sexual assault shall pay, either directly or by reimbursement of payment by the victim, the cost of a physical examination of the victim, which an investigating officer determines was necessary or useful for evidentiary purposes.

8. A responsible official shall provide the victim with general information regarding the corrections process, including information about work release, furlough, probation, and eligibility for each.

Victims’ Rights and Restitution Act of 1990

The Crime Control Act of 1990 further directed responsible government officials to provide victims with general information regarding the corrections process, including information about work release, furlough, and probation. Title IV of the Victims Rights and Restitution Act of 1990 requires all federal law enforcement agencies to make their best efforts to accord victims of crime with the right to: (1) be treated with fairness and respect for the victim's dignity and privacy; (2) be protected against their accused offenders; (3) be notified of court proceedings; (4) attend public court proceedings related to the offense under certain conditions; (5) confer with the government attorney assigned to the case; (6) receive restitution; and (7) receive information about the conviction, sentencing, imprisonment, and release of the offender. The Act also directs federal law enforcement agency heads to designate the persons required by this Act to identify and provide certain services to the victims of a crime, such as informing victims about where to receive medical care, counseling, and police protection, and about developments during the investigation and prosecution of the crime and after the trial (such as the arrest of a suspected offender or an escape of a convicted offender). It also directs that a responsible official provide the victim with general information regarding the corrections process, including information about work release, furlough, and probation. This Act was repealed in 2004 and replaced with the Justice for All Act of 2004.

Violent Crime Control and Law Enforcement Act of 1994

The Violent Crime Control and Law Enforcement Act of 1994 mandated that: (1) law should provide for a victim's right of allocation at a sentencing hearing and at any parole hearing if the offender has been convicted of a crime of violence or sexual abuse; (2) such a victim should have an opportunity equivalent to that accorded to the offender's counsel to address the sentencing court or parole board and to present information in relation to that sentence imposed or to the early release of the offender; and (3) if the victim is unable or chooses not to testify at a sentencing or parole hearing, the victim's parents, legal guardian, or family members should have the right to address the court or board. It also established mandatory restitution for victims of four categories of crime: (1) domestic violence, (2) sexual assault, (3) the exploitation and abuse of children, and (4) telemarketing fraud.

Antiterrorism and Effective Death Penalty Act of 1996

The Antiterrorism and Effective Death Penalty Act of 1996 expanded mandatory restitution to virtually all crimes committed in violation of Title 18 of the United States Code.

Victim Rights Clarification Act of 1997

The Victims Rights Clarification Act of 1997 gives victims the right to attend a trial even though they may testify during the sentencing portion of the trial.

The Victims of Trafficking and Violence Protection Act of 2000

The Victims of Trafficking and Violence Protection Act of 2000 protects immigrant victims of domestic violence, human trafficking, and other crimes from deportation in certain cases.

The Justice for All Act of 2004

The 2004 Justice for All Act expanded and recodified the victims’ bill of rights and gave victims standing to enforce those rights.⁵⁴ The JFAA updated victims' rights to include: (1) the right to be reasonably protected from the accused; (2) the right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused; (3) the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; (4) the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) the reasonable right to confer with the attorney for the government in the case; (6) the right to full and timely restitution as provided in law; (7) the right to proceedings free from unreasonable delay; and (8) the right to be treated with fairness and with respect for the victim's dignity and privacy.

The JFAA also created the following requirements for government agencies’ best efforts to accord victims' rights: (1) government officers and employees of DOJ and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights; (2) the prosecutor shall advise the crime victim that he or she can seek the advice of an attorney with respect to the rights; and (3) notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person.

The JFAA authorized appropriation funding through VOCA for enhancement of the VNS from 2006-2009.

The Attorney General Guidelines for Victim Witness Assistance (1995, 2000 and 2005)

The purpose of the AG Guidelines was to establish guidelines to be followed by officers and employees of DOJ investigative, prosecutorial, and correctional agencies in the treatment of victims and witnesses to crime.

In the VWPA, Congress instructed the Attorney General to develop and implement guidelines for DOJ consistent with the purposes of the Act. Congress set forth the objectives of the guidelines, which include the provision of services to victims; notification about protection, services, and major case events; consultation with the government attorney; a separate waiting area at court; the return of property; notification of employers; and training for law enforcement and others. Congress also instructed the Attorney General to assure that all federal law enforcement agencies outside of DOJ adopt guidelines consistent with the purposes of the VWPA.

In conformance with the congressional directive, the Attorney General promulgated the AG Guidelines, which have been revised to incorporate new legislative provisions. In 2000, the AG Guidelines were revised to include the Violent Crime Control and Law Enforcement Act of 1994; the Antiterrorism and Effective Death Penalty Act of 1996; and the Clarification Act of 1997. In 2005, the AG Guidelines were revised to include the Victims of Trafficking and Violence Protection Act of 2000 and the Justice for All Act of 2004.

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53. The term “victim” means a person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime. This includes an institutional entity where there is an authorized representative for the entity. And, in cases where a victim is under 18 years of age, incompetent, incapacitated or deceased, there is another preferred person designated on the victim’s behalf (e.g., spouse, legal guardian, parent, a child, a sibling, another family member or another person designated by the court). 42 U.S.C. § 10607 (2007).

54. The list of rights, commonly referred to as the “victims’ bill of rights” is now codified at 18 U.S.C. § 3771 (2004).