Discussion of Victim Rights under the Crime Victims' Rights Act (CVRA) and Sentencing Guidelines

Page 50 of 78 2007 Utah L. Rev. 861, *930 (B) must - for any disputed portion of the presentence report or other controverted matter - rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and [*931] (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons. 394 The Advisory Committee recommended no changes to these rules. > Discussion: The CVRA entitles victims to be heard on disputed Federal Sentencing Guidelines ("Guidelines") issues and, as a consequence, to review parts of the presentence report relevant to those issues. The CVRA gives victims "the right to be reasonably heard at any public proceeding in the district court involving ... sentencing." 7°© The CVRA provision (among other things) codifies the right of crime victims to give in court what is known as a "victim impact statement." 397 The victim's right to be heard, however, is not narrowly circumscribed to just impact information. To the contrary, the right conferred is a broad one - to be "reasonably heard" at the sentencing proceeding. The victim's right to be "reasonably heard" implicitly includes a right for the victim to speak to disputed Guidelines issues. As Senator Kyl explained, the victim's right includes the right to make sentencing recommendations: When a victim invokes this right during ... sentencing proceedings, it is intended that he or she be allowed to provide all three types of victim impact: the character of the victim, the impact of the crime on the victim, the victim's family and the community, and sentencing recommendations. 37° A "sentencing recommendation" will often directly implicate Guidelines issues, particularly where a court gives significant weight to the Guidelines calculation (as most currently do). 7°? For example, if the victim wishes to recommend a sixty-month sentence when the maximum guideline range is only thirty months, that sentencing recommendation may be meaningless unless a [*932] victim can provide a basis for recalculating the Guidelines or departing or varying *°° from the Guidelines. Congress intended the victim's right to be heard to be construed broadly, as Senator Feinstein stated: "The victim of crime, or their counsel, should be able to provide any information, as well as their opinion, directly to the court concerning the ... sentencing of the accused." 4°! Again, it is hard to see how victims can meaningfully provide "any information" that would have a bearing on the sentence without being informed of the Guidelines calculations that likely will drive the sentence. 394 Cassell, Proposed Amendments, supra note 4, at 901-02. 395 See Proposed Amendments, supra note 71. 396 18 U.S.C. § 3771(a)(4) (2006). 397 See generally Beloof, Cassell & Twist, supra note 6, at 625-90 (discussing victim impact statements); Cassell, Balancing the Scales, supra note 6, at 1395-96. 398 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added). See generally Beloof, Cassell & Twist, supra note 6, at 625-90 (discussing three types of victim impact information). 399 See, e.g., United States v. Wilson, 350 F. Supp. 2d 910,925 (D. Utah 2005) (giving "heavy weight" to the Guidelines' recommendation). 400 See United States v. Wilson, 355 F. Supp. 2d 1269, 1272 (D. Utah 2005) (discussing "departures" and "variances"). 401 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added). DAVID SCHOEN HOUSE_OVERSIGHT_017685