Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions

33 Pages Posted: 4 Jun 2010

See all articles by Paul G. Cassell

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Date Written: June 4, 2010


In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

This Article proceeds in three parts. Part I explains the factual background surrounding Antrobus. Kenny and Sue Antrobus lost a motion to have their daughter, Vanessa Quinn, recognized as a protected “crime victim” under the CVRA. Thereafter, despite four separate trips to the Tenth Circuit, they were unable to secure a meaningful review of that decision or release of the government’s evidence on the issue.

In Part II, the Article turns to the background leading up to Congress’s enactment of the CVRA. Congress designed the CVRA to give victims meaningful and enforceable rights – rights that were to be protected throughout the federal court system.

Part III of the Article then discusses the merits of the Tenth Circuit’s analysis in Antrobus. Contrary to the Circuit’s position, the plain language of the CVRA – requiring appellate courts to “take up and decide” crime victims’ petitions – does not mean that crime victims are limited to discretionary mandamus review of their claims, but rather, indicates that crime victims are entitled to ordinary appellate review. Moreover, the legislative history of the CVRA clearly demonstrates that Congress wanted crime victims to have ordinary appellate review of their claims.

The Article concludes by suggesting that the Tenth Circuit should, at the next opportunity, reconsider its position en banc and follow the prevailing view in the courts of appeals. If the Tenth Circuit will not, then the Supreme Court should review the circuit split that the Tenth Circuit’s decision created, and side with those circuits that have given crime victims the full measure of protection that Congress intended.

Keywords: Victim, Crime Victim, Impact Statement, Criminal Justice, Sentencing

JEL Classification: K14, K41, K42

Suggested Citation

Cassell, Paul G., Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions (June 4, 2010). Denver University Law Review, Vol. 87, 2010, Available at SSRN:

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

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