A. Statement of Purpose

The purpose of this document is to establish guidelines to be followed by officers and employees of Department of Justice investigative, prosecutorial, and correctional agencies in the treatment of victims of and witnesses to crime.

These guidelines supersede the 1995 Attorney General Guidelines for Victim and Witness Assistance.

B. Background

The first Federal victims' rights legislation was the Victim and Witness Protection Act of 1982 (VWPA). Congress amended and expanded upon the provisions of the 1982 Act in subsequent legislation, primarily the Victims of Crime Act of 1984, the Victims Rights and Restitution Act of 1990, the Violent Crime Control and Law Enforcement Act of 1994, the Antiterrorism and Effective Death Penalty Act of 1996, and the Victim Rights Clarification Act of 1997.

In the VWPA, Congress made findings about the criminal justice system's treatment of crime victims. Congress recognized that without the cooperation of victims and witnesses, the criminal justice system would cease to function. Yet, often those individuals were either ignored by the system or simply used as "tools" to identify and punish offenders. Congress found that all too often a victim suffers additional hardship as a result of contact with the system. The VWPA was enacted "to enhance and protect the necessary role of crime victims and witnesses in the criminal justice process; to 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, to provide a model for legislation for State and local governments."

Also, in the VWPA Congress instructed the Attorney General to develop and implement guidelines for the Department of Justice 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 the Department of Justice adopt guidelines consistent with the purposes of the VWPA. (see 18 U.S.C. § 1512, Historical and Statutory Notes, Federal Guidelines for Treatment of Crime Victims and Witnesses in the Criminal Justice System). In conformance with the Congressional directive, the Attorney General promulgated the Attorney General Guidelines for Victim and Witness Assistance (AG Guidelines). Periodically, the AG Guidelines have been revised to incorporate new legislative provisions.

Starting with the VWPA and continuing through the later legislation, Congress established a list of victims' rights and directed the Justice Department and other departments and agencies of the Federal Government engaged in the detection, investigation, or prosecution of crime to make their "best efforts" to see that crime victims are accorded the rights. The list of rights, commonly referred to as the "victims' bill of rights," appears in 42 U.S.C. § 10606. Congress also defined a group of services that Federal agencies have the responsibility to provide to crime victims. The basic list of responsibilities appears in 42 U.S.C. § 10607. The VWPA provided that services be accorded only "where possible"; however, the Crime Control Act of 1990 stated that those services "shall" be provided. Thus, the statute, as modified, mandates that Federal personnel provide victims with the described services, although it appears to allow for individual judgment in determining how, when, and in some cases, whether to provide the services. Specialized provisions dealing with certain types of victims and crimes appear elsewhere in Titles 42 and 18. For example, provisions specifically dealing with child victims and witnesses appear in 18 U.S.C. § 3509.

More recent legislative provisions continue to expand victims' rights in a variety of ways. The Violent Crime Control and Law Enforcement Act of 1994 established mandatory restitution for four categories of crime victims: (1) domestic violence; (2) sexual assault; (3) sexually exploited children and other abused children; and (4) telemarketing fraud victims. 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. The Clarification Act of 1997 gives victims the right to attend a trial even though they may testify during the sentencing portion of the trial. (18 U.S.C. § 3510)

C. Construction of These AG Guidelines

The foundation for the AG Guidelines is the Federal victims' rights laws. The core statute is 42 U.S.C. § 10607, but additional rights and requirements exist in other statutes and rules of criminal procedure. In the text of the guidelines, all statutory requirements or rules of criminal procedure are followed by a direct citation to the applicable statute or rule. Guidelines that are purely Justice Department policy, as opposed to statutory law, will not be followed by a citation. Guidelines that are policy intended to implement a statutory right, provision, or procedural rule will be followed by a citation referring to the statute or rule, as in "see statute." Some guidelines are followed by a Commentary that is intended to provide additional clarification, guidance, and suggestions on how to implement the law and policy that appear in the AG Guidelines.

D. Reliance on the Sound Judgment of DOJ Officers and Employees

The Attorney General and the Department of Justice are firmly committed to providing crime victims the rights and services required under Federal law. The Department recognizes, however, that it is extremely difficult to anticipate and provide direction for the myriad of situations that may arise in the course of the investigation and prosecution of crime and in the incarceration of offenders. DOJ employees are consequently expected to use their sound judgment and discretion in deciding how best to accord victims and witnesses the rights and services required under Federal law and these AG Guidelines. Thus, decisions about such matters as when, where, and how to provide services must be addressed by the responsible officials, keeping in mind the overall spirit and intent of the laws and guidelines.

The AG Guidelines use the word "shall" where "shall" appears in a statute. Employees are reminded that the statutory provisions are mandatory as explained in section B, "Background." When the AG Guidelines use the word "should," the employee is expected to take the action or provide the service described unless there is an appropriate, articulable reason not to do so. In all matters there is a presumption in favor of providing rather than withholding assistance and services to victims and witnesses of crime.

E. Application

1. Providers of Rights and Services. These AG Guidelines apply only to those components of the Department of Justice engaged in criminal investigative, prosecutorial, or correctional functions. The AG Guidelines are intended to serve as a model for guidelines on the fair treatment of crime victims and witnesses for other State and Federal law enforcement agencies.

   Justice Department components should encourage non-Department personnel specially assigned or deputized to work with Department components to become aware of and comply with the victims' rights laws and these guidelines.

2. Recipients of Rights and Services. The majority of the rights and services in these AG Guidelines are applicable to victims of crime. Some provisions apply to witnesses to crime.

   For purposes of these AG Guidelines, the term "victim" means a person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime, including

   1. In the case of a victim that is an institutional entity, an authorized representative of the entity; and

   2. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order of preference):
      1. A spouse;

      2. A legal guardian;

      3. A parent;

      4. A child;

      5. A sibling;

      6. Another family member; or

      7. Another person designated by the court.

      (42 U.S.C. § 10607(e)(2))

      Further, a person who is culpable for the crime being investigated or prosecuted should not be considered a victim for purposes of the rights and services provided under the AG Guidelines. A person who may be culpable for violations or crimes other than the crime being investigated or prosecuted may be considered a victim under this policy.

This definition of victim comes from the statutory definition found in 42 U.S.C. § 10607(e)(2). The statute neither explicitly covers nor explicitly excludes culpable persons in its definition. The Justice Department believes that there is a basis to infer from the statute a tacit congressional intent to distinguish between persons who are culpable in some way for the crime and those who are not. First, a literal application of the words of the statute to include injured participants in a crime would in some cases lead to absurd results, which we seek to avoid. Moreover, legislative silence on the issue, in light of the Department's practices prior to the passage of the statute, may be indicative of an intent to protect only those who did not participate in committing a crime.

Accordingly, as a policy matter, the Department excludes from the definition of "victim" any person who is culpable for the crime being investigated or prosecuted. This exclusion does not encompass persons who may be culpable for some other crime, even if the crimes may be related. Thus, a victim who may have committed some crime other than the one under investigation or prosecution is considered a victim for purposes of the AG Guidelines rights and services. A person's status as an inmate, an illegal alien, etc., does not disqualify that person from being considered a victim. Examples of such persons include, but are not limited to, the following:

1. Illegal aliens who are involuntary servitude victims. The illegal aliens may have some civil deportation exposure for voluntarily agreeing to be smuggled into the United States. Once in the country, however, the aliens are held against their will in conditions of involuntary servitude. The illegal aliens qualify as victims under this definition because they are not culpable for the involuntary servitude crime.

2. Transportation and trafficking victims. In some cases, a person may engage in prostitution as part of an interstate transportation for illegal sexual activity or in aid of racketeering or other trafficking crime. That person should not be disqualified from being considered a victim if the person otherwise fits the definition of victim and is not culpable for the trafficking offense.

3. Inmates victimized in prison. Inmates who are assaulted in prison should be considered victims of an assault crime being investigated or prosecuted even though they may be culpable for some other crime that resulted in their incarceration. (Note: Even where a detainee (for example, an inmate or illegal alien) is considered a victim under this definition, the detainee may not be able to take advantage of some victims' rights and services because of the detention. For example, while Department employees must use their "best efforts" to see that victims are accorded their qualified right to be present at public court proceedings related to the offense, an inmate's detention may prevent the inmate from taking advantage of the right. Department employees are not required to transport the inmate to court for hearings as part of their "best efforts.")

4. Victims of witness intimidation. A witness who is threatened or injured as the result of an attempt by another person to prevent the witness from testifying should be treated as a victim of the intimidation crime even though the witness may have some culpability in the matter about which he or she was testifying.

5. Victims of excessive force. A person may be the victim of excessive force by law enforcement authorities while the person is being lawfully arrested for some offense. The person is a victim of the excessive force charges even though the person may have committed some other criminal offense that predicated the arrest.

Department personnel should consider the types of services mandated by the AG Guidelines—referral, notice of case proceedings, opportunity to be heard at sentencing, etc.—and make reasonable decisions about who should be included as a direct victim. Department personnel are expected to use their sound judgment and discretion in applying the definition of victim, keeping in mind that there is a presumption in favor of providing rather than withholding services. Even if a particular person does not qualify as a victim under the AG Guidelines definition, in their discretion Department personnel can provide services, such as referrals, as they deem appropriate.

Federal departments and State and local agencies, as entities, should not be considered "victims" for purposes of Article IV of the AG Guidelines. Thus, in cases in which the United States, State or local agencies, or the public at large are harmed (for example: tax evasion, public corruption, and certain regulatory offenses), victim services generally will be inapplicable; but in virtually all cases, there will be witnesses who will be entitled to the witness services of employer or creditor intercession/notification and court attendance information like parking and transportation. The definition of "witness" appears in Appendix A, Definitions.

Commentary
Victims of Juvenile Offenders
Victims of juvenile offenders (being proceeded against as Federal juvenile delinquents) are not necessarily entitled to all of the rights specified by the victims' rights statutes. Because juvenile proceedings are not technically prosecutions of crimes, but rather civil adjudications of status, the provisions of the victims' rights statutes must be harmonized with the statutory restrictions that govern the juvenile proceedings. Prior to a finding of delinquency, the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031, et. seq. ("the Act"), curtails the type of information which may be publicly disclosed to victims regarding juvenile proceedings. The Act presumes that the proceedings will be closed, that the records will be sealed, and that no information about the proceedings and the accused will be publicly disclosed. During the investigative stage, a general statement about the progress of the investigation may be disclosed to the victim prior to the time that an information or complaint charging an act of juvenile delinquency is filed. Investigators are cautioned, however, that the name or other identifying data about a suspect who is known or believed by investigators to have been younger than 18 when the crime occurred should not be disclosed.

Prosecutors in juvenile cases can solicit and receive victims' views on appropriate disposition (not only whether the prosecutor should move to detain, dismiss, defer prosecution, or accept a plea, but also how severe a sentence is warranted), but the substantive communications must remain a one-way discussion. Prosecutors are not permitted to convey any prosecutorial information about the ongoing progress of the juvenile case to the victim.

After a finding of delinquency, an exception in 18 U.S.C. § 5038(a)(6) explicitly permits disclosure to the victims, or if they are deceased, their immediate family, "related to the final disposition of such juvenile." Federal prosecutors should be aware that they may make disclosures to victims about the case under this section. In particular, prosecutors should make reasonable efforts to provide victims with relevant information about the result of the juvenile adjudicatory hearing to assist the victim in preparing an accurate Victim Impact Statement for presentation to the court at the dispositional hearing. Prosecutors should tell victims that presentence reports and victim impact statements are not mandated at dispositional hearings, although a victim may prepare such a statement which the prosecutor can offer to the court. The prosecutor could also request the court to order the probation office to prepare a victim impact statement.

The exception in 18 U.S.C. § 5038(a)(6) also allows the corrections agency to respond to a victim's inquiry about the final judicial disposition and projected release date as computed on the date when the juvenile sentence is imposed. A victim should not be routinely notified when the juvenile offender in his or her case has actually been released from custody. (18 U.S.C. § 5038(c))

These privacy protections are not afforded to juveniles who are transferred to adult status.

F. Responsible Officials

Pursuant to 42 U.S.C. § 10607(a), the Attorney General is required to designate persons in each Justice Department component engaged in the detection, investigation, or prosecution of crime who will be responsible for identifying the victims of crime and performing the services described in that section. These persons are referred to as "responsible officials." (42 U.S.C. § 10607(a)) In these AG Guidelines, the designation of responsible officials for each component appear below and at the beginning of the sections indicating the stage in the process where the component operates.

The Attorney General designates the following responsible officials:

1. Investigators
   1. FBI—the Special Agent-in-Charge of the division having primary responsibility for conducting the investigation.

   2. DEA—the Special Agent-in-Charge of the division having primary responsibility for conducting the investigation.

   3. INS—the District Director or Chief Patrol Agent of the office having primary responsibility for conducting the investigation.

   4. U.S. Marshals Service—the U.S. Marshal in whose district the case is being conducted.

   5. Office of the Inspector General—the Inspector General.

2. Prosecutors
   1. For cases in which charges have been filed—the U.S. Attorney in whose district the prosecution is pending.

   2. For cases in which a litigating division of the Justice Department is solely responsible—the chief of the section having responsibility for the case. The Department attorney handling the case is responsible for performing the same duties under these AG Guidelines as are required of an Assistant U.S. Attorney. By agreement between the Criminal Division and the Executive Office for United States Attorneys (EOUSA), the responsible official from the Criminal Division may delegate some responsibilities to the U.S. Attorney in whose district the prosecution is pending.

   3. For cases in which the U.S. Marshals Service is the custodial agency—the U.S. Attorney in whose district the prosecution is pending.

3. Corrections Officials
   1. For cases in which the U.S. Marshals Service is the custodial agency—the U.S. Attorney in whose district the prosecution is pending.

   2. For cases in which the Bureau of Prisons has become involved—the Director or Warden of each Bureau of Prisons (BOP) facility where the defendant is incarcerated.

   3. For cases in which the Immigration and Naturalization Service is the custodial agency—the Executive Associate Commissioner for Field Operations.

It is incumbent upon responsible officials to foster cooperation among all components of the Department of Justice to the maximum extent possible in providing victims the services defined under Federal law. In many instances where certain duties and responsibilities overlap, duplicative services are not required, although the responsible officials should promote coordination and interagency teamwork between State and local or Tribal officials and Federal officials. At each stage in the performance of services, the transition of responsibility from one component of the Department of Justice to the next must, of necessity, include a sharing of information (in many cases prior to the actual turning over of responsibility). In this way, gaps in notification and other services are eliminated and crime victims receive uniform rather than fragmented treatment, starting from the initial investigation and continuing throughout their entire involvement with the Federal criminal justice system.

All components should work with appropriate components of other Federal agencies that investigate and prosecute violations of Federal law to assist them in providing these services to victims. Justice Department components should also coordinate their victim-witness service efforts with State and local law enforcement officials who may be involved in the investigation, including Tribal police officials in Indian Country, and victim assistance and compensation service providers.

G. Victims' Rights and Services in Cases with Large Numbers of Victims

Individual and, whenever possible, personal contact with victims is recommended. While the methods for implementing AG Guidelines provisions are relatively straightforward in cases where the number of victims is limited, they can present challenges as the number of victims grows into the hundreds and thousands. In carrying out their obligations under the AG Guidelines in cases with large numbers of victims, responsible officials should use the means, given the circumstances, most likely to achieve actual contact with and notice to victims.

Commentary

What constitutes a sufficient effort to identify, notify, and assist crime victims will necessarily vary with the facts of a particular violation, and a variety of techniques are available to enable Department personnel to effectuate appropriate notice and assistance to victims in a wide range of circumstances. The determination of what comprises sufficient efforts and appropriate types of notice and assistance depends largely on the anticipated needs of the crime victims and the selection of techniques most likely to provide actual notice to these victims, and much less on the absolute amount of effort or level of resources needed to provide this notice and assistance by Department personnel. Moreover, Department personnel should carefully evaluate the type of information relayed and the method of communicating the information to see that investigations are not compromised and victims' privacy is not inadvertently invaded.

Identifying the nature of the harm suffered by crime victims is essential to determining the appropriate method of effectuating notice and providing assistance. Victims of violent crimes, for example, may have a high level of need for a wide range of victim services in almost every instance, and so in almost every instance a substantial effort to identify and personally contact victims of violent crime will be warranted, regardless of the number of victims involved. Indeed, FBI and United States Attorneys' Offices should consider assessing the possibility of a large scale violent crime occurring within their jurisdictions, identifying the resources currently available to provide victim assistance (DOJ resources, other Federal agencies such as the Federal Emergency Management Agency (FEMA), State and local agencies, volunteer groups such as the Red Cross) and those resources needed but not available, and developing contingency plans for contacting and providing assistance to mass crime victims should the need arise. As another example, victims of financial crimes such as telemarketing fraud often suffer significant (to them) harm and have a high degree of need for notice and referral services. Names and addresses of victims of financial crimes can often be obtained from defendants' records, and even in situations where thousands of victims exist it may be appropriate to send individual victims an initial notification letter informing them of the nature of the offense and assessing their interest in receiving future notice and consultation services. In addition, defendants who have been convicted of offenses involving fraud may be ordered by the court to spend up to $20,000 to provide notice to victims explaining the conviction pursuant to 18 U.S.C. § 3555. Offices that frequently deal with cases involving large numbers of identifiable fraud victims may wish to develop the ability to conduct such mass mailings in-house, while offices that do not may want to consider contracting with private entities approved to handle sensitive Government information and who can assist with the provision of such services when needed.

In other cases involving large numbers of victims, circumstances may suggest that the use of other methods to provide notice and assistance to the victims is appropriate. When a crime results in a large number of victims who likely have suffered significant harm and cannot be readily identified, but who reside in a limited geographic area, a well-publicized town meeting may be an effective way to identify victims, provide victims with notice and pertinent information, and consult with victims concerning the crime and the Government's investigation. Still other cases may present the situation where a very large number of victims spread out over a large geographic area have likely suffered only minor (to them) financial losses. Under theses circumstances, the use of representative victims, victim proxies (such as organizations that represent the interests of the victim class or actual class-action representatives), or even the general media may be the most appropriate method to provide victims with notice and information concerning the crime.

Other techniques beyond those mentioned above also exist that, in certain situations, can assist Department personnel to provide large numbers of victims with information concerning the ongoing status of an investigation, prosecution, or detention. For example, a toll-free telephone number system can be established that not only would permit victims to call in and get recorded information concerning the status of a matter, but would actually call the victims to alert them to a change in status. With individuals' increasing ability to access the Internet, Web sites can be created that contain information concerning the progress of investigations and prosecutions. Keep in mind, of course, that any information that is not for public dissemination should not be posted on the Internet. Items that would normally be appropriate for a press release, such as dates for public court proceedings, are appropriate for the Internet. Also, private groups that have within their membership a significant number of victims of a particular violation may have newsletters or other methods of informing their members that can be used to provide information about the ongoing progress of a case. Some victims themselves may be willing to assist with preparing and disseminating a newsletter or assisting in some other way.

H. Victims' Declination of Services

Justice Department employees are required, by law and under these AG Guidelines, to identify victims of crime and offer them services as described in these AG Guidelines. Victims, however, are not required to accept these services and may choose at any point in the criminal justice process to decline to receive further (or future) services. Justice Department employees need not provide services that victims have made an informed decision to decline.

Commentary

The law and these AG Guidelines provide for a wide range of information and services for victims. Some crime victims, however, may prefer not to receive the full range of assistance. Because certain statutory provisions concerning the Department's obligation to furnish services to crime victims are written in mandatory terms, it is important for Department personnel to ascertain specifically what information and services, if any, a victim wishes to forego. For example, a victim who declines an offer of assistance in contacting persons who are responsible for providing counseling, treatment, and other support (see 42 U.S.C. § 10607(c) (1)(C)-(D)) may nevertheless want to retain the right to be informed of developments in the investigation and in the prosecution of the case. (see id. § 10607(c)(3)) Providing the victim with a written description of the available services (perhaps in a brochure or on a card) and obtaining a written description of the services the victim does or does not wish to receive (such as with a form victims can check off) may help to avoid any misunderstanding in this regard.

In cases involving large numbers of victims, it may be impractical to have individual personal contact with each victim or to give each victim the option to decline some individual services while accepting others. In such circumstances, Department personnel should follow the principles set forth in Article I.G. and the accompanying commentary. In cases where victim notification is accomplished through the media, town meetings, newsletters, the Internet, or in any other efficient manner, including automated notification systems, the only feasible way to honor the victim's preference not to receive some services may be to remove that victim's name from a list of persons to be provided with a broader range of services. In such situations, where a victim declines a service, the victim should be provided with an explanation of the options available under the circumstances of the case—which may include, but are not limited to, receiving all services or no services—and allowed to decide which of those options to accept.