Proposal to Expand Victims' Access to Presentence Reports Cites Ninth Circuit Kenna Decision

Page 51 of 78 2007 Utah L. Rev. 861, *932 In addition, an independent basis for victims reviewing presentence reports is the victim's broad right under the CVRA to be "treated with fairness" 4°? and right to restitution, as I argued in my earlier article. 4 Thus, the CVRA should be understood as giving victims the right to relevant information in the presentence report about the Guidelines and to be heard before a court makes any final conclusions about Guidelines calculations and other sentencing matters. Many states follow a similar approach and give victims access to presentence reports as part of the victim-impact process. 404 Since I made my proposal, the Ninth Circuit has considered the question of whether to reverse a district court that declined to provide the entire presentence report to a fraud victim. In an opinion containing only one substantive paragraph, the Ninth Circuit affirmed the district court, which had rejected a victim's argument that "the CVRA confers a general right for crime victims to obtain [*933] disclosure of the [presentence report]." 405 The Ninth Circuit stated tersely that the district court did not "commit legal error." 40° Although strong arguments can be made against Kenna, 4°” the case is not on point to my proposal. First, Kenna involved a claim of a "general right" to access to the presentence report, apparently untethered to any particular need for access. My amendment would be limited to situations where victims seek "relevant" contents of the presentence report to make a victim impact statement at sentencing. Second, the victim in Kenna sought the entire presentence report. The Ninth Circuit pointedly observed: "We note that Kenna refused the district court's offer to consider disclosure of specific portions of the [presentence report]." 4°8 My proposal tracks what the district court offered to Kenna - that a victim would have access to "relevant contents of the presentence report." Because victims have a right of access to relevant parts of the presentence report, the question then arises of how to provide that access. In my earlier article, I recommended the simplest solution to the competing concerns would be to disclose the report, upon request, to victims through the prosecutor. The prosecutor could filter out irrelevant confidential information and assist the victim by highlighting critical parts of the report. It might be objected that this approach would burden prosecutors. 402 18 U.S.C. § 3771(a)(8) (2006). 403 Cassell, Proposed Amendments, supra note 4, at 894-96; see also Testimony of Paul G. Cassell to the U.S. Sentencing Comm'n (Feb. 15, 2005), available at hitp://www.ussc.gow/hearings/02_15_05/cassell_testimony.pdf (last visited Feb. 22, 2008) (advancing similar arguments). 404 Ala. Code § 15-23-73(b) (1995) (giving victim "right to review a copy of the presentence investigative report, subject to the applicable federal or state confidentiality laws"); Alaska Stat. § 12.55.023 (2006) (giving victim right to look at portions of sentencing report); Ariz. Const. art. II, § 2.1(a)(7) (giving victim right to review presentence report when available to the defendant); Ariz. Rev. Stat. Ann. § 13-4425 (2001) (giving victim right to review presentence report "except those parts excised by the court or made confidential by law"); Col. Rev. Stat. § 24-72-304(5) (2007) (giving prosecutor discretion to allow victim or victim's family to see presentence report); Fla. Stat. § 960.001 (1)(g)(2) (2006) (giving victim right to review presentence report); Idaho Code Ann. § 19-5306(1)(a) (2002) (giving victim right to review presentence report); Ind. Code § 35-40-5-6(b) (1998) (giving victim right to read and "respond to" material contained in the presentence report); La. Const. art. I, § 25 (giving victim "right to review and comment upon the presentence report"); Mont. Code Ann. § 46- 18-113(1) (2007) (giving prosecutor right to disclose contents of presentence report to victim); Or. Rev. Stat. § 137.077(2) (2005) (presentence report must be made available to victim). 405 In re Kenna, 453 F.3d 1136, 1137 (9th Cir. 2006). 406 Tg. 407 See Brief for the Petitioner, In re Kenna, 453 F.3d 1136 (9th Cir. 2006) (No. 06-73352). Cf. Matthew B. Riley, Note, Victim Participation in the Criminal Justice System: In re Kenna and Victim Access to Presentence Reports, 2007 Utah L. Rev. 235, 235 (discussing Kenna and urging that crime victims receive "as much of the report as possible without infringing on specific privacy concerns held by criminal defendants"). 408 In re Kenna, 453 F.3d at 1137. DAVID SCHOEN HOUSE_OVERSIGHT_017686