Advocacy for Victims' Access to Pre‑Sentence Reports in Federal Sentencing Guidelines

Page 36 of 52 2005 B.Y.U.L. Rev. 835, *896 to full and timely restitution as provided in law." 7°? As a practical matter, many of the calculations supporting a restitution award will rest on information in the presentence report. While the restitution statutes have their own detailed procedural provisions, 7°4 the presentence report is clearly a central part of the restitution process. If a presentence report fails to accurately recount restitution figures, crime victims may be short-changed. For all these reasons, the CVRA should be understood as giving victims the right to review relevant parts of the presentence report and to be heard before a court makes any final conclusions about Guidelines calculations and other sentencing issues. Many states follow a similar approach and give victims access to the presentence report. 7>° In February 2005, I testified before the Sentencing Commission to recommend a change in the U.S. Sentencing Commission Guidelines Manual along the lines of the proposals contained in this [*897] Article. *°° In particular, I suggested that the Commission change its current rule, which allows only the parties to see the presentence report. 7°’ The Practitioners’ Advisory Group to the Sentencing Commission later disputed my proposal. In a letter to the Commission, 7*8 they argued that "nothing in the CVRA or its legislative history states that crime victims should be permitted to review portions of the presentence report, dispute guidelines calculations, raise grounds for departure, or, as such rights would seem to imply, appeal a sentence on factual or legal grounds." 7°? The Practitioners’ Group also cited the drafting history of the proposed constitutional amendment protecting victims’ rights, which they thought was limited to giving a victim merely the right to "allocute" at sentencing - that is, merely to provide victim impact information. 7°° The Practitioners' Group's arguments are flawed for several reasons. First, the Group too narrowly views the relevant legislative history of the CVRA. As explained above, Congress intended for victims to have broad rights in the sentencing process, including rights to be reasonably heard in a meaningful manner. 7°! It is not reasonable to deprive victims of the critical information in the presentence report. Second, the Practioners' Group inaccurately describes the relevant history of the Victims’ Rights Amendment. It is true that the proposed constitutional amendment contained a right to be "reasonably heard," just as the CVRA does. However, the Practitioner's Group fails to recognize that the legislative history of the amendment suggests that 253 18 ULS.C.A. 3771(a)(6) (West 2004 & Supp. 2005). 254 18 U.S.C. 3664. 25 Ala. Code 15-23-73 (1975) (“victim shall have the right to review a copy of the pre-sentence investigative report, subject to the applicable federal or state confidentiality laws"); Alaska Stat. 12.55.023 (2004) (giving victim right to look at portions of sentencing report); Ariz. Const. art. 2, 2.1 (giving victim right to review presentence report when available to the defendant); Ariz. Rev. Stat. Ann. 13-4425 (2004) (giving victim right to review presentence report "except those parts excised by the court or made confidential by law"); Fla. Stat. Ann. 960.001 (2000) (giving victim right to review presentence report); Jdaho Code 19-5306 (2004) (giving victim right to review presentence report); Ind. Stat. Ann. 35-40-5-6(b) (2004) (giving victim right to read and "respond to" material contained in the presentence report); La. Const. art. 1, 25 (giving victim "right to review and comment upon the presentence report"); Afont. Code Ann. 46-]8-113 (2005) (giving prosecutor discretion to disclose contents of presentence report to victim); Or. Rev. Stat. Ann. 137.077 (2003) (presentence report may be made available to victim); see also Colo. Rev. Stat. 24-72-304(5) (2005) (giving prosecutor discretion to allow victim or victim's family to see presentence report). 256 See The Effect of United States v. Booker on the Federal Sentencing Guidelines: Hearing Before the U.S. Sentencing Comm'n (Feb. 15, 2005) (statement of Paul G. Cassell, United States Judge for the District of Utah), available at hitp://www.ussc.gov/hearings/ 02 15 05/cassell testimony.pdf. 27 U.S. Sentencing Comm'n, 1 Federal Sentencing Guidelines 6A1.2 (West 2004). 28 Letter from Amy Baron-Evans & Mark Flanagan to Hon. Ricardo H. Hinojosa (Feb. 28, 2005), available at hittp://sentencing. typepad.com/sentencing law and policy/ files/pag letter.doc. 259 Td. at 2. 260 Tq. DAVID SCHOEN HOUSE_OVERSIGHT_017750