In March 2023, the Department of Justice (DOJ) implemented updated guidelines for victim and witness assistance. The updated guidelines mark the DOJ's first revision in a decade and expand their policies in several notable ways, directing prosecutors to enact guaranteed rights for victims as early as possible in the criminal process and encouraging prosecutors to consider what services can be provided for individuals who may not qualify as victims in the statutory sense but have nevertheless been harmed by criminal conduct. While these changes have received relatively little notice, both their shifted emphasis and the obligations they impose on federal prosecutors to inquire about and pursue avenues of victim redress are meaningfully changing the scope of the DOJ's activity when resolving cases. DOJ prosecutors' insistence they must ensure victims and witnesses are more fully apprised and heard is already imposing additional demands on companies (and individuals) settling charges, changing the sentencing playing field considerably. Companies need to understand how these enhanced demands will affect their resolution expectations with the DOJ or risk being surprised by queries and demands not in mind when they agree to settle.

Federal Victim Protection Statutes

Federal law provides for certain rights of individuals harmed by crime. The Crime Victims' Rights Act, 18 U.S.C. Section 3771 (CVRA), enumerates rights that ensure victim participation in the criminal process as well as restitution for harm suffered as the result of the crimes committed against them. These rights are conveyed on "crime victims" and include the right to timely notice of any public court proceeding involving the accused; the rights to be present and heard at any such proceeding; the reasonable right to confer with the government; and the right to be timely informed of any plea bargain or deferred prosecution agreement (DPA). The CVRA also confers standing on a crime victim to assert his or her rights afforded under the act, but explicitly does not authorize a cause of action for damages for violations of the act by the government. The act further caveats that it shall not be construed as limiting the prosecutorial discretion of the DOJ. A "crime victim" means a person or, in some cases, his or her representative, who was directly and proximately harmed as the result of the commission of a federal crime.