Over the last few days, I have discussed possible charges that might be filed in the Michael Brown shooting, both by federal and state prosecutors.  In this post, I want to focus not on the possible defendant in that hypothetical criminal case, but rather on the possible victim.  Federal and state laws extend certain rights to “victims” of crimes.  Someone who has been shot in a homicide is obviously the victim of that homicide.  But is Michael Brown the “victim” of a crime for purposes of these laws when we don’t know whether a criminal homicide was committed — i.e., when a police investigation is underway but no charging decision has been made?

In the circumstances of this case, I believe the answer is yes.  Along with co-authors Nathaniel Mitchell and Brad Edwards, I recently argued that both federal and state crime victims laws should generally be understood as extending rights to victims of crime during the investigative process even before charges are filed, at least where an investigation has focused on a particular target.  We devoted most of our paper to the federal law — the Crime Victims Rights Act (CVRA) — where this issue has been the subject of controversy and litigation.  But we noted that state crime victim laws frequently provide rights to victims during the pre-charging criminal process.

With regard to federal law, in December 2010, the U.S. Justice Department’s Office of Legal Counsel (OLC) released a formal opinion concluding that the CVRA only applies (generally speaking) after the formal initiation of the criminal charges, such as after a grand jury hands up a federal indictment.  Our article contests that opinion, explaining:

Shortly after the Department released its opinion, one of the CVRA’s congressional sponsors, Senator Jon Kyl, sent a letter to Attorney General Eric Holder strenuously objecting to the Department’s conclusions. Senator Kyl directly stated his view that “[w]hen Congress enacted the CVRA, it intended to protect crime victims throughout the criminal justice process – from the investigative phases to the final conclusion of a case.” Senator Kyl contested the Department’s analysis of the statute and, in particular, its use of statements from him during Congress’ consideration of the Act.  This article sides with the CVRA’s co-sponsor and concludes that crime victims’ CVRA rights attach before charging. Both the CVRA’s plain language and its legislative history lead inexorably to this conclusion, as every court that has decided this question has concluded. This article also contends that, as a matter of sound public policy, crime victims should have rights before the formal filing of criminal charges.

If our analysis is correct, then Michael Brown would be (in the eyes of the law) the “victim” of the federal civil rights crime that is currently being investigating.   It is clear that federal investigators have a very clear target in mind — the officer who killed Michael Brown.  In other words, the investigation is sufficiently focused that it is possible to clearly identify a specific victim of a specific federal crime.  Under our analysis, then, Brown would then have a limited set of rights under the CVRA, most importantly the right to be treated with “fairness, dignity, and respect” and the “reasonable right to confer” with the prosecutors working on the case.  Brown would not have, for instance, the right to be notified of public court proceedings, as no court proceedings are underway, or the right to restitution, as no conviction has yet occurred.

Michael Brown, of course, is dead and cannot exercise his own rights under the CVRA. But the CVRA anticipates this situation in homicide cases and other like it where the victim may be unable to exercise his own rights.  In such a case, a “representative” of the victim exercises the rights that extend to the victim.  Presumably for these purposes, his representative will be his parents.

Attorney General Holder in fact met with Michael Brown’s parents at the U.S. Attorney’s Office in St. Louis on Wednesday.  The Attorney General had no difficulty treating Michael Brown’s parents with fairness, dignity, and respect.  Perhaps the Attorney General will apply that lesson more broadly, instruction federal prosecutors to treat other victims and their families in the same way before charges are filed.  Sadly, I am in litigation currently with the Justice Department, where attorneys working for Attorney General Holder are arguing that the the federal government has no obligation to do so — a case I blogged about here.

In contrast to the U.S. Justice Department, many state prosecutors have not had difficulty in extending rights to crime victims during the investigative process.  As my co-authors and I note in our article, a number of states have clearly extended rights to crime victims during the charging process.  Of particular relevance here, under Missouri state law,  for example, Missouri crime victims have the right, on “submitted cases where no charg[ing] decision has been made, to be informed by the prosecuting attorney of the status of the case and of the availability [of different forms of compensation and assistance] and of any final decision by the prosecuting attorney not to file charges.”

Of course, no criminal charges have yet been filed in the Michael Brown shooting.  Whether there is sufficient evidence to file criminal charges is highly uncertain, particularly if (as recent press reports suggest) Michael Brown attacked and injured the officer.  But whenever law enforcement officers are investigating a suspected crime with a specific target, it makes sense to extend the victim of that putative crime the basic victim rights that apply during that early part of the process.  However the Michael Brown criminal case finally concludes, his family deserves fair treatment during the investigation of whether he was criminally killed.  Treating his family fairly in no way interferes with the rights of a possible criminal defendant.  In other words, in this country, we can extend appropriate procedural protections to both suspected criminals and their victims — and I hope victims’ rights enactments will generally be interpreted to as protecting victims not only after charges are filed but during police investigations.

The White House said on Monday that local and federal investigators will act in a "fair, professional and impartial manner" as they look at the facts surrounding the death of 18-year-old Michael Brown, who was shot by a Ferguson, Mo., police officer. (WhiteHouse.gov)