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Crime victims' rights and restitution
(c) 2011, Brenda Grantland, Esq., updated 2/13/2011
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Introduction
An overview of crime victims rights and restitution law - by Brenda Grantland (c) 2011
Statutes and research materials on victims' rights & restitution - including helpful links
Introduction
I first entered the newly emerging field of crime
victims' rights
litigation in the spring of 2009, when I began representing Ritchie Capital
Management, an investment fund manager and several funds it manages,
who were victims of the Minnesota Ponzi scheme of Thomas Petters.
In October 2008, simultaneously with Petters' arrest, the federal
government filed a civil injunction and receivership action under 18
U.S.C. § 1345, froze all the defendants' assets, and obtained a
litigation stay preventing creditors and victims from suing any of the
defendants or their companies. From that point on, Petters'
victims were held at bay while the court system, government
lawyers, criminal defense counsel, bankruptcy trustees and two court-appointed receivers
made decisions about disposition of the seized assets -- largely without regard for the wishes or rights of the
victims. Today, some 27 months later, the Receivers and bankruptcy trustees have spent over $ 45 million of the seized assets on legal and professional fees (with millions more in fee requests in the pipeline), while victims have been paid nothing.
After over 25 years' experience defending asset forfeiture cases I had
become accustomed to the havoc criminal and asset forfeiture cases can
wreak on
innocent third parties -- defendants' relatives, landlords, business
partners, lien holders, etc. -- but I never expected crime victims to
be treated just as badly or
worse. Congress enacted legislation specifically to protect crime
victims -- the Mandatory Victim
Restitution Act of 1996 and the Crime Victims' Rights Act of
2004. But do they work?
In the course of a year and a half of intense non-stop
litigation, my office and the other lawyers on our team tried our best
to assert our rights under the Crime Victims' Rights Act ("CVRA") and
the Mandatory
Victim
Restitution Act ("MVRA"). We learned from reported cases and from
lawyers around the country that these statutes are being implemented as
written in some jurisdictions, while other courts are resistant to
change
and simply fail or refuse to afford victims their rights under the two
statutes, as the courts did in the Petters case. Ritchie's petition for certiorari to the U.S. Supreme Court is based on the failure of the Minnesota district court and Eighth Circuit to comply with these statutes.
It is easy to see why courts and prosecutors might be reluctant to
implement these statutes. They created revolutionary changes in
the way criminal cases are litigated. Since our
country's founding, criminal
courts have always been a two-party system -- the only parties being the
prosecution and the criminal defendants. Neither party has any
natural motivation to protect crime victims -- in fact it runs counter
to their
interests. Defendants do not want to pay restitution. Prosecutors
get greater recognition for their successful criminal convictions and large forfeiture judgments, and
naturally prefer that the assets be forfeited to the government
(where it can be paid out to law enforcement agencies) rather than paid
to victims in restitution.
The CVRA imposes specific duties on
prosecutors and judges to ensure that victims are afforded their rights under the
statutes, but compliance varies greatly among courts.
In some jurisdictions, a prosecutor's failure to perform his/her duties
under the CVRA or MVRA has even been cited by the court as a reason to
deny
victims relief under the statute! Fortunately, the CVRA gave
crime victims the right to enforce their CVRA rights themselves,
including the right to appellate review of any orders denying CVRA
rights.
Ignorance of the law is the greatest obstacle to affording crime
victims the rights Congress intended them to have. As more victims learn of these rights and take an active role in
ensuring that they are enforced, these victims' rights statutes will begin to perform
their intended functions.
If you, a client, or someone you know, is a victim of a federal
crime, please take the time to acquaint yourself with the provisions of
these statutes and insist on their enforcement.
Here are some links to research materials we have written or compiled
on the subjects of crime victims' rights and restitution.
Crime Victims Rights and the Right to Restitution: an overview of federal law, (c) 2011, Brenda Grantland, Esq.,
Materials on Federal Crime Victims' Rights and Restitution -- a collection of victims' rights statutes, regulations and links to articles
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