Proposed Amendments to Victims' Rights Rules Dilute CVRA Protections

Page 70 of 78 2007 Utah L. Rev. 861, *959 First, in Proposed Rule 60(b)(1), the Advisory Committee has watered down the CVRA's directive that a court must decide any victim's motion "forthwith" >4? to "promptly." While there is nothing wrong with this change as a matter of style, > it does appear to reduce the speed with which courts will have to act to enforce victims' rights. "Forthwith" can be interpreted to be more exacting requirement than "promptly." >44 Given that the Advisory Committee's premise that, where possible, it "should 545 incorporate" the language of the CVRA, it is unclear why it chose to substitute "promptly" for the "forthwith" requirement. Second, in Proposed Rule 60(b)(2), the Advisory Committee has inexplicably left out the right of the victim's representative to assert a victim's right (along with [*960] the victim herself and the prosecutor). *4° This omission is criticized earlier in this Article. *47 Third, in Proposed Rule 60(b)(5)(a) through (c), the Advisory Committee sets out three requirements for a victim to file a motion to reopen a sentence - requirements taken straight from the CVRA. **% Without explanation, however, the Advisory Committee then leaves out the CVRA's qualification to these restrictions - "this paragraph does not affect the victim's right to restitution as provided in Title 18, United States Code." °49 Fourth, in Proposed Rule 60(b)(4), the Advisory Committee has left out the CVRA's venue provision which allows a victim to assert her rights "if no prosecution is underway, in the district court in the district in which the crime occurred." °° In contrast to the other three omissions just noted, the Advisory Committee specifically discussed whether to track the italicized language in its proposed rule on asserting rights. Remarkably, it decided to take the statutory language out of the Rules: Judge Levi expressed concern over the final phrase in Rule [60(b)(4)], which gives a victim the right to assert rights "if no prosecution is underway, in the court in the district in which the crime occurred." Judge Jones said the Crime Victims Rights Act affords victims certain rights even in the absence of a case. Judge Levi noted, however, that the criminal rules only apply to proceedings in filed cases. Judge Jones explained that the subcommittee had decided to include it because there might be a pre- prosecution proceeding of some sort to which the provision might apply. There was discussion as to whether a grand jury investigation might qualify as such. Professor Beale said that, while the Act might give victims certain rights, such as being treated respectfully, Judge Levi was probably correct that the rights covered by the criminal rules could only be asserted with respect to a case being prosecuted. After further discussion, Judge Jones said the phrase would be deleted, as Judge Levi had suggested. >>! 342 18 U.S.C. § 3771(d)(3). 43 See Bryan A. Garner, A Dictionary of Modern Legal Usage 372 (2d ed. 1995). 4 See, e.g., Amella v. United States, 732 F.2d 711, 713 (9th Cir. 1984) "["Forthwith'] connotes action which is immediate, without delay, prompt, and with reasonable dispatch."); Ayers v. Coughlin, 530 N.E.2d 373, 375 (N.Y. 1988) (“We reiterate that the statutory mandate to commit individuals to the officials responsible for their custody "forthwith' means that it is done without delay, at once, promptly. "Forthwith' signals immediacy."). 45 CVRA Subcommittee Memo, supra note 66, at 1-2. *46 Compare Proposed Amendments, supra note 71, R. 60(b)(2), at 17, with 18 U.S.C. § 3771(d)(1) (2006) (victims' rights may be asserted by "the crime victim or the crime victim's lawful representative, and the attorney for the Government") (emphasis added). 47 See supra notes 117-133 and accompanying text. For the Advisory Committee's response to this criticism, see infra notes 578-579 and accompanying text. 348 See 18 U.S.C. § 3771(d)(5)(a)-(c). $49 Td. § 3771 (d)(5). 550 Td. § 3771(d)(3) (emphasis added). I Advisory Committee Minutes, supra note 68, at 15 (discussing now-renumbered Rule 43(1)(b)(3)). DAVID SCHOEN HOUSE_OVERSIGHT_017705