Proposed Amendments to Federal Criminal Procedure Rules Following the Crime Victims' Rights Act (CVRA)

Page 7 of 78 2007 Utah L. Rev. 861, *870 specific enforcement mechanisms. °° Most important, the CVRA directly confers standing onto victims to assert their rights, a flaw in the earlier enactment. *” The act provides that rights can be "asserted" by "the crime victim or the crime victim's lawful representative, and the attorney for the Government." °° The victim (or the government) may appeal any denial of a victim's right through a writ of mandamus on an expedited basis. °° The courts are also required to "ensure that the crime victim is afforded" the rights given by the new law. © These changes were intended to make victims "an independent participant in the proceedings." ©! C. My Proposed Amendments to the Federal Rules of Criminal Procedure In the wake of the CVRA, the Federal Rules of Criminal Procedure needed to be significantly amended to comply with the statute's mandates. With this goal in mind, I prepared a comprehensive set of proposed amendments to the Rules and submitted them to the Advisory Committee on the Federal Rules of Criminal Procedure. © My proposals began from the premise that "victims now must be folded into the process through which federal courts conduct criminal cases, including bail, plea, trial, and sentencing hearings." ° Because the federal rules are the "playbook" [*871] of the federal courts, it seemed advisable to reflect the new role of victims throughout the Rules. Moreover, Congress intended the CVRA to be "a formula for success" and a "model for our States." + The only way the federal rules could serve as a model, I argued, was by fully implementing victims’ rights. I then proposed twenty-eight specific changes to the Federal Rules of Criminal Procedure to integrate crime victims into the federal process. © Each of these proposals included both specific text for an amendment and a legal justification for the change. D. The Criminal Rules Committee Proposals The Advisory Committee took up my proposed rule changes in the summer of 2005. The distinguished chair of the committee, Judge Susan Bucklew, appointed a subcommittee, chaired by Judge James Jones, to consider changes to the federal rules to implement the CVRA. The Subcommittee, including its reporter, Professor Sara Sun Beale, prepared a report to the full committee recommending only a few changes to the Rules. ©° The Subcommittee "felt that it would not be appropriate to create new victim rights not based upon the statute." ©” Accordingly, the Subcommittee recommended just a few changes to the Rules, essentially parroting a few parts of the CVRA's language. © Td, *7 Cf. Beloof, supra note 7, at 283 (identifying this as a pervasive flaw in victims' rights enactments). 8 18 USC. § 3771(A(1). 9 Td. § 3771(4)(3). © Td. § 3771(b)(1). 61 150 Cong. Rec. $10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). © See Cassell, Proposed Amendments, supra note 4. 3 Td. at 852. Td. at 854-55 (quoting 150 Cong. Rec. $4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)). 6 Td. at 856-923. 66 Memorandum from Professor Sara Sun Beale, Reporter, to the Members of the Crim. Rules Advisory Comm. (Sept. 19, 2005) [hereinafter CVRA Subcommittee Memo]. This document does not appear on the helpful website regarding federal rulemaking - www.uscourts.gov/rules. To make the document more widely available, I have posted the report on my website -http.//www.law.utah.edu/paul-cassell. 67 CVRA Subcommittee Memo, supra note 66, at 2. DAVID SCHOEN HOUSE_OVERSIGHT_017642