Proposal to Require Prosecutors to Share Presentence Report Details Directly with Crime Victims Raises Conflict with CVRA

Page 52 of 78 2007 Utah L. Rev. 861, *933 409 _ and presumably they will be conferring But the CVRA already gives victims the right to "confer" with prosecutors regarding the important topic of sentencing. It is important to emphasize that my proposal would require prosecutors to give all relevant information to the victim; in other words, prosecutors would serve as a conduit to the victim, but not a controller of the victim. The Advisory Committee declined to adopt my proposal, opining that "the prosecutor should remain the victim's source of information regarding the sentencing process and the contents of the presentence report, and the prosecutor should have discretion to determine what information from the presentence report should be imparted to the victim." 4!° This reasoning clashes directly with the CVRA's guiding principle: that victims deserve their own rights in the criminal process. Congress wanted victims to become participants with rights "independent of the government or the defendant ... ." 41! For this reason, the CVRA allows the [*934] victim to assert rights independently of the government. 4!” Senator Kyl explained the victim's right to independent action directly: "[There is no authority for] the government's attorney ... to compromise or co-opt a victim's right... . The rights provided in this bill are personal to the individual crime victim and it is that crime victim that has the final word regarding which of the specific rights to assert and when." 413 One of the victim's independent rights includes the opportunity to make "sentencing recommendations." 4!4 Congress's command that victims be independent participants cannot be faithfully implemented if prosecutors control the information victims receive. If allowed to do so, prosecutors could simply feed the victim information supporting the government's view, while withholding information undercutting it. +15 Nothing in the CVRA provides any support for this approach. +!° The Advisory Committee was also concerned that presentence reports "are typically treated as confidential, because they include a great deal of personal information about the defendant ... .". 4!” But this concern was easily handled by my requirement that prosecutors pass along only "relevant" contents of the presentence reports. Personal information only tangentially connected to sentencing issues would not be disclosed. And if personal information about the defendant were directly connected to sentencing issues, then fairness entitles the victim to that information to formulate a sentencing recommendation. After all, by the time of sentencing, the defendant has been found guilty, beyond a reasonable doubt, of harming a victim. By committing a crime against the victim, the defendant has certainly forfeited some privacy interests - including the chance to keep from the victim information relevant to sentencing. It is also important to recall that this information is not truly confidential in the sense that no one else [*935] will see it. It has already been disclosed to the probation officer, defense counsel, the prosecutor, and the judge. 409 18 U.S.C. § 3771(ay(5) (2006). 419 CVRA Subcommittee Memo, supra note 66, at 18. 411 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). 412 See 8 U.S.C. § 3771(d)(1) (a victim's rights may be asserted by both the prosecutor and the victim or victim's representative). 413 150 Cong. Rec. $10,912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). 414 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). 415 The Advisory Committee's view that prosecutors should control what information the victim receives is so fundamentally at odds with the animating principles of the CVRA that it makes one wonder where it came from. Interestingly the view seems to have originated in a small subcommittee with a representative from the Justice Department but no crime victims rights representative. See CVRA Subcommittee Memo, supra note 66, at 1 (noting that Deborah Rhodes, Counselor to the Asst. Atty. Gen. of the Criminal Division, served on the subcommittee drafting this language). 416 At another point in its memorandum, the CVRA Subcommittee refers to /8 U.S.C. § 3771(d)(6), which provides that "nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." CVRA Subcomittee Memo, supra note 66, at 20. But the simple act of giving information in a court document (the presentence report) to crime victims does not impair the government's decision of whether and how to prosecute a defendant. See supra notes 363-365 and accompanying text (discussing impairment issue under Rule 20). 417 CVRA Subcommittee Memo, supra note 66, at 18. DAVID SCHOEN HOUSE_OVERSIGHT_017687