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STATEMENTOFPAUL G. CASSELLRONALD N. BOYCE PRESIDENTIAL PROFESSOR OF CRIMINAL LAWS.J. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAHBEFORE THEUNITED STATES SENTENCING COMMISSIONONPROTECTING CRIME VICTIMS RIGHTSIN THE SENTENCING PROCESSONOCTOBER 20, 2009DENVER, COLORADO
Mr. Chairman and Distinguished Members of the Commission,I am pleased to be here today to continue a discussion with the Sentencing Commissionabout how best to protect crime victims rights in the sentencing process. My testimony offersspecific suggestions to the Commission for several policy statements the Commission could adoptto protect victims’ rights as well as legislative changes that the Commission should recommend toCongress.In Part I of my testimony, I urge the Commission to adopt policy statements that wouldgive victims a great role in the sentencing guidelines process. In Part I.A, I explain how courtsfrequently treat crime victims information as largely irrelevant to determining the ultimatesentence. In Part I.B., I argue that this limited role for victims is inconsistent with the role forvictims that crime envisioned when it passed the Crime Victims’ Rights Act. Congress wantedvictims have an expanded role in the sentencing process, so that their information would make areal difference in the sentencing process. In Part I.C., I explain why the Commission’s 2006policy statement concerning crime victims rights -- § 6A1.5 – while well-intentioned appears tohave had virtually no substantive effect in protecting crime victims. In Part I.D., I urge theCommission to adopt policy statements regarding victim impact statements and victim access topre-sentencing reports so that victims can participate in the process of determining the applicablesentencing guideline. I conclude in Part I.E. by giving a specific example of a case in which acrime victims was unfairly denied the opportunity to participate in the process of determining theSentencing Guidelines.Part II of my testimony turns to another important part of sentencing B restitution B andurges the Commission to recommend to Congress that judges be given greater power to craftrestitution awards. Current federal law authorizes judges to order restitution only for certainnarrow categories of losses, such as to compensate victims for damage to their property or toreimburse them for medical expenses. The need to fit restitution awards into these narrowcategories has led to considerable litigation about whether particular restitution awards made bydistrict court judges were authorized by statute. But in the midst of resolving those disputes, alarger point has been missed: that judges should have broad authority to order defendants to payrestitution. Congress has mandated that restitution s purpose is to restore victims to where theywould have been had no crime been committed. Unfortunately, the current restitution statutes donot permit trial judges to achieve that goal. In my testimony, I discuss specific examples ofappellate court cases that have overturned quite appropriate district court restitution orders on thegrounds that they were not statutorily-authorized. I urge the Sentencing Commission torecommend to Congress to extend these statutes and give judges appropriate power to craft properrestitution awards – a recommendation that the Judicial Conference of the United States has alsorecently made.Part III of my testimony urges the Commission to recommend to Congress that it passlegislation giving judges greater power to prevent profiteering by criminals. The current federallaw on the subject is apparently unconstitutional, yet neither the Justice Department nor theCongress has taken steps to correct the problem. It would be an embarrassment to the federalsystem of justice if criminals were able to be profit from their crimes merely because no one had1
taken the time to draft appropriate, constitutional legislation. Corrective legislation could beeasily drafted, by giving judges discretionary power to prevent profiteering as a condition ofsupervised release. In addition, it is possible to draft a constitutional statute that forbidsprofiteering by criminals. I offer some specific legislative suggestions along these lines,including a suggested statute for dealing with the problem of “murderabilia.”A brief note about my background may be in order. I previously served as a U.S. DistrictCourt Judge for the District of Utah (2002-07) and am currently the Ronald N. Boyce PresidentialProfessor of Criminal Law at the S.J. Quinney College of Law at the University of Utah, where Iteach and write on crime victims rights and other criminal law subjects.1 I am also speciallitigation counsel to the National Crime Victims’ Law Institute.I.THE COMMISSION SHOULD INTEGRATE CRIME VICTIMS INTO THESENTENCING PROCESS.A.The Current System Gives Victims A Limited Role in the Sentencing Process.The outlines of the current sentencing system are well-known to the Commission. Here itis worth briefly highlighting the important role for victims provided for by the Guidelines andRules of Criminal Procedure. Under the current system, a Avictim impact statement@ is typicallyincluded in the pre-sentence report prepared by the probation office. This victim impactstatement is often written by the victim and explains the effect of the crime. Later, at thesentencing hearing, victims are allowed to speak or Aallocute.@ As Rule 32 of the Federal Rules ofCriminal Procedure currently provides, “[b]efore imposing sentence” the court must “address anyvictim of the crime who is present at sentencing and must permit the victim to be reasonablyheard.”2Yet while this rule gives many victims the right to allocute, courts typically seem to treatthis right of allocution as a mere general exhortation about the effects of the crime rather than forproviding specific information that goes into the Guidelines calculation or other specificinformation that bears on the sentencing. Handling victim allocution in this way often means thatvictims information will have little or no effect on the sentence imposed. The most importantdeterminant of most sentences is the applicable guideline. To be sure, the Supreme Courtrecently held in the well-known Booker decision that the federal sentencing guideline scheme [email protected] But most district judges continue to give the Guidelines Aheavy [email protected] andstatistics collected by the Sentencing Commission show the most sentences continue to fall within1See, e.g., DOUGLAS BELOOF, PAUL CASSELL & STEPHEN TWIST, VICTIMS IN CRIMINALPROCEDURE (Carolina Academic Press 2d ed. 2005); Paul G. Cassell, In Defense of Victim ImpactStatements, 6 OHIO ST. J. CRIM. L. 611 (2009).2FED. R. CRIM. P. 32(i)(4)(B).3United States v. Booker, 543 U.S. 200, 234 (2005) (remedial majority opinion by JusticeBreyer).4See, e.g., United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005).2
the Guideline recommendations or are based on Guideline calculations in some fashion.5 Indeed,while recognizing the right of district court judges to vary from the Guidelines, the Supreme Courthas been quite clear that the sentencing judges “must treat the Guidelines as the starting point andinitial benchmark” for calculating any sentence.6 If crime victims do not participate in thesentencing guideline process – or are unable to provide information that influences the sentencingguideline calculation – then their right of allocution will have little effect on sentencing.B.The Crime Victims Rights Act Commands that Victims Be Given an ExpandedRole in the Sentencing Process, Including Access to Pre-Sentence Reports.Limiting crime victims’ role in federal sentencing to mere general exhortation isinconsistent with the role that Congress envisions victims should play. In October 2004,Congress passed the AScott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and NilaLynn Crime Victims' Rights [email protected] Congress intended through this legislation to make crimevictims real participants in the criminal justice process. To that end, the Act guarantees crimevictims a series of rights, such as the right to be present and heard at appropriate points in thecriminal justice process and the right to be treated fairly.8Specifically, the Crime Victims Rights Act guarantees crime victims the right Ato bereasonably heard@ and Ato be treated with fairness@ throughout the criminal justice process,including at sentencing hearings.9 This congressional command is not an invitation for businessas usual. Instead, Congress expected Ameaningful participation of crime victims in the justicesystem . . . [email protected] In federal sentencings, crime victims cannot be such participants unless they areallowed an appropriate role in the process of determining the applicable sentencing guideline. Inthe great majority of cases, the Guidelines are the major factor driving a defendant s sentence.The Commission should allow victims an opportunity to be involved in that guidelinesdetermination. The Commission should draft procedures that allow victims to review relevantparts of the pre-sentence report, including the all-important Guidelines calculation; to raiseobjections to any improper calculation; and to be heard on that calculation. Anything less will5U.S. SENTENCING COMMISSION, PRELIMINARY QUARTERLY DATA REPORT (Sept. 8,2009) (57.4% of all cases sentenced within the guideline range and an additional 25.0% weresentenced based on a government recommendation to go below the Guideline range). Seegenerally Frank O. Bowman, III, The Year of Jubilee . . . or Maybe Not: Some PreliminaryObservations about the Operation of the Federal Sentencing System After Booker, 43 U. HOUSTONL. REV. 279, 319 (2006) (A[I]t seems reasonable to predict that the guidelines will remain thepredominant factor in determining individual sentences for years to come.@).6Kimbrough v. United States, 552 U.S. 85, (2007).7Pub. L. No. 108-405, ' 102(a), 118 Stat. 226 (Oct. 30, 2004).8See generally Jon Kyl, Steven J. Twist, & Stephen Higgins, On the Wings of TheirAngels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, Nila Lynn CrimeVictims Rights Act, 9 LEWIS & CLARK L. REV. 581 (2005).918 U.S.C. ' 3771(a)(4) & (8).10150 CONG. REC. S4264 (Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added).3
leave victims on the outside looking in at the process, rather than participating in the process asCongress B and justice B require.One particular provision in the Act is worth highlighting here because of its effects onGuidelines procedures. Among its comprehensive list of rights, the Act gives victims Athe right tobe reasonably heard at any public proceeding in the district court involving . . . sentencing . . . [email protected] codifies the right of crime victims to provide a victim impact statement@ to the court.12 Theright is not narrowly circumscribed to just impact information, however. To the contrary, theright conferred is a broad one B to be Areasonably heard@ at the sentencing proceeding.The CVRA appears to legally entitle victims to be heard on disputed Guidelines issues and,as a consequence, to review parts of the pre-sentence report relevant to those issues. As SenatorKyl explained, the right includes sentencing recommendations:When a victim invokes this right during . . . sentencing proceedings, it is intendedthat he or she be allowed to provide all three types of victim impact: the character ofthe victim, the impact of the crime on the victim, the victim s family and thecommunity, and sentencing recommendations.13A Asentencing recommendation@ will often directly implicate Guidelines issues, particularly wherea court gives significant weight to the Guidelines calculation (as most currently do).14 Forexample, if the victim wishes to recommend a 60-month sentence when the maximum guidelinerange is only 30 months, that sentencing recommendation may be meaningless unless a victim canprovide a basis for recalculating the Guidelines or departing from the Guidelines.Congress intended the victim s right to be heard to be construed broadly, as SenatorFeinstein stated:The victim of crime, or their counsel, should be able to provide any information, aswell as their opinion, directly to the court concerning the . . . sentencing of theaccused.151118 U.S.C. ' 3771(a)(4).See generally DOUGLAS BELOOF, PAUL CASSELL & STEPHEN TWIST, VICTIMS INCRIMINAL PROCEDURE ch. 10 (2d ed. 2006) (discussing victim impact statements); Paul G. Cassell,Balancing the Scales of Justice: The Case for and the Effects of Utah s Victims RightsAmendment, 1994 UTAH L. REV. 1373, 1395-96 (same).13150 CONG. REC. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasisadded). See generally BELOOF, CASSELL & TWIST, supra, chap. 10 (discussing three types ofvictim impact information).14See supra note 6.15150 CONG. REC. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)(emphasis added).124
Again, it is hard to see how victims can meaningfully provide Aany information@ and theirAopinion@ about a sentence without being told what everyone else in the courtroom knows B theGuidelines calculations that likely will drive the sentence.Victims may often possess information quite relevant to the district court s assessment ofthe Guidelines range. The Guidelines themselves contain an entire part devoted to Avictim-relatedadjustments@ and issues relating to the victim are often part of the Guidelines calculation process.16This part requires the court to make such determinations as whether a defendant selected his victimbecause of race, whether a defendant should have known that a victim was vulnerable, and whethera victim was physically restrained during the course of an offense. In addition, other Guidelineslook to victim-related characteristics. The kidnapping provision, for example, looks to suchthings as the degree of injury suffered by the victim.17 The fraud provision looks to loss to thevictim.18To be sure, in many cases a prosecutor may bring some of these relevant facts to the court sattention. Indeed, under the new Act prosecutors are required to Ause their best efforts@ to insurethat victims rights are protected.19 But the Act clearly indicates that the prosecutor srepresentations are not a substitute for the victim s personal right to be reasonably heard. Thus,the Act begins: AA crime victim has the following rights . . . [email protected] Moreover, the Act specificallyprovides that victims can Aassert the rights@ provided in the statute both before the district court andon appeal by way of expedited mandamus relief.21 This demonstrates that Congress intendedvictims to be involved in sentencing proceedings as the functional equivalent of parties, that is, asequal participants in the process.22 As Senator Kyl explained about the right-to-be-heardprovision:This provision is intended to allow crime victims to directly address the court inperson. It is not necessary for the victim to obtain the permission of either party todo so. This right is a right independent of the government or the defendant thatallows the victim to address the court. To the extent the victim has the right toindependently address the court, the victim acts as an independent participant inthe proceedings.23An independent basis for the victim reviewing pre-sentence reports is the victim s broad16U.S.S.G. ' 3A.1.1 et seq. For a specific illustration, see Part I.E, infra.U.S.S.G. ' 2A4.1(b)(2).18U.S.S.G. ' 2B1.1(b).1918 U.S.C. ' 3771(c).2018 U.S.C. ' 3771(a).2118 U.S.C. ' 3771(d).22See generally Douglas Evan Beloof, The Third Model of Criminal Process: The VictimParticipation Model, 1999 UTAH L. REV. 289 (explaining victim participation model of criminaljustice).23150 CONG. REC. S10910-11 (Oct. 9, 2004) (remarks of Sen. Kyl) (emphasis added).175
right under the CVRA to be Atreated with [email protected] This right seems to comfortably encompassa right of access to relevant parts of the pre-sentence report. The victim s right to fairness givesvictims a free-standing right to due process. As Senator Kyl instructed:The broad rights articulated in this section are meant to be rights themselves and arenot intended to just be aspirational. One of these rights is the right to be treatedwith fairness. Of course, fairness includes the notion of due process. . . . Thisprovision is intended to direct government agencies and employees, whether theyare in the executive or judicial branches, to treat victims of crime with the respectthey deserve and to afford them due process.25Due process principles dictate that victims have the right to be apprised of Guidelines calculationsand related issues. The Supreme Court has explained that A[i]t is . . . fundamental that the right to. . . an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. @26It is not Ameaningful@ for victims to make sentencing recommendations without the benefit ofknowing what the recommended Guidelines range is. Yet Congress plainly intended to pass a lawestablishing A[f]air play for crime victims, meaningful participation of crime victims in the justicesystem, protection against a government that would take from a crime victim the dignity of dueprocess. . . [email protected] victim s right to be heard regarding sentencing issues is important for another reason:insuring proper restitution. Federal law guarantees most victims of serious crimes the right torestitution.28 While reinforcing those laws, the new Crime Victims Rights Act also guaranteesthat victims have A[t]he right to full and timely restitution as provided in [email protected] As a practicalmatter, many of the calculations undergirding an award of restitution will rest on informationcontained in the pre-sentence report. While the restitution statutes have their own detailedprocedural provisions,30 it is unclear how those provisions are integrated with the Guidelinesprocedural provisions.For all these reasons, the Crime Victims Rights Act should be understood as givingvictims the right to be heard before a court makes any final conclusions about Guidelinescalculations and other sentencing matters. It is therefore incumbent on the judiciary to take2418 U.S.C. ' 3771(a)(8).150 CONG. REC. S10912 (Oct. 9, 2004) (statement of Sen. Kyl) (emphases added).26Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545,552 (1965)).27150 CONG. REC. S4264 (Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added). Seegenerally Mary Margaret Giannini, Equal Rights for Equal Rites?: Victim Allocution, DefendantAllocution, and the Crime Victims’ Rights Act, 26 YALE L. & POL’Y REV. 431 (2008).28See 18 U.S.C. ' 3663A (Mandatory Victims Restitution Act); accord 18 U.S.C. ' 3663(Victim Witness Protection Act).2918 U.S.C. ' 3771(a)(6).3018 U.S.C. ' 3664.256
specific steps to integrate victims into the sentencing process.C.The Commission s Victims Policy Statement is Inadequate.It would not be difficult for the judiciary to fold victims into sentencing process. All thatwould be needed are a few straightforward changes to the federal rules and the Federal SentencingGuidelines Manual. Elsewhere I have offered suggested changes to the federal rules31 and, afterconsidering my proposals, the Rule Advisory Committee recently made changes to protectvictims’ rights.32 Here I will focus on the changes needed in the Manual. As the Commission isaware from my previous testimony,33 I believe that specific changes are need to the Manual. TheCommission apparently agreed with other victims’ rights advocates and me that some change wasappropriate, as it adopted a new policy statement on crime victims rights. Before turning to myown recommendations, it may therefore be worth briefly noting why the Commission s policystatement has proven to be inadequate.The Commission adopted a new policy statement that instructed judges to adhere to federallaw on crime victims rights:' 6A1.5 Crime Victims Rights (Policy Statement)In any case involving the sentencing of a defendant for an offense against acrime victim, the court shall ensure that the crime victim is afforded therights described in 18 U.S.C. ' 3771 and in any other provision of Federallaw pertaining to the treatment of crime victims.This provision did nothing more than instruct judges to follow the law. Such an instruction isunhelpful. Of course federal judges will try to follow the law B on crime victims rights no lessthan on other subjects. This point is reinforced by the fact that ordinarily a court will not award aninjunction that does nothing more than require a party of follow the law. As the Supreme Courthas explained, ACourts will not issue injunctions against administrative officers on the mere31See Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure,2005 BYU L. Rev. 835 (detailing proposed changes to the Federal Rules of Criminal Procedure);Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims into the Federal Rules ofCriminal Procedure, 2007 UTAH L. REV. 861.32See, e.g., Fed. R. Crim. P. 60 (rule dealing with victim’s rights). For reasons that Ihave articulated at length elsewhere, I believe that Advisory Committee’s changes do not go farenough. See Cassell, Treating Crime Victims Fairly, supra note 31. I understand that theAdvisory Committee is continuing to monitor how its new rules are operating and may consideradditional rules changes in the future.33See Testimony of Paul G. Cassell Before the Sentencing Commission on ProtectingCrime Victims’ Rights in the Sentencing Process (Mar. 15, 2006); Testimony of Paul G. CassellBefore the Sentencing Commission on the Effect of United States v. Booker on the FederalSentencing Guidelines (Feb. 15, 2005).7
apprehension that they will not do their duty or will not follow the [email protected] Thus, courts have beenskeptical of requests to order compliance with the law.35Several years ago in testifying I expressed skepticism about whether the policy statementwould have any substantive effect of the law. It appears that my skepticism may have beenwarranted, at least as measured by references to the provision. Since the effective date of thisGuideline provision nearly three years ago (November 1, 2006), it has yet to be cited in even asingle published court opinion.36D.The Commission Should Make Specific Changes to the Guidelines to ProtectVictims Rights.Rather than a purely symbolic injunction to follow the law, what trial judges need isspecific guidance from the Commission on how to appropriately integrate crime victims into thesentencing process. It is here that the Commission, as the judiciary s expert agency on thesubject, could be particularly helpful. In particular, the Commission should change the policystatements in the Guidelines to explain how crime victims are to participate in the Guidelinesprocess. Currently those provisions allow only Athe parties@ (i.e., the prosecution and the defense)to dispute sentencing factors contained in the pre-sentence report. For example, section 6A1.3provides: AWhen any factor important to the sentencing determination is reasonably in dispute, theparties shall be given an adequate opportunity to present information to the court regarding [email protected] In the wake of the CVRA, district judges can no longer follow that approach. TheCommission should give guidance on what approach district judges should follow. I believe thatthe Sentencing Commission should make four changes to the Guidelines:381. Probation Officers Required to Investigate Victims IssuesThe Commission should change section 6A1.1 to insure that the probation officers include34Waite v. Macy, 246 U.S. 606, 608-09 (1918) (citing First Nat'l Bank v. Abright, 208U.S. 548 (1908)).35Lauer Farms v. Waushara Country Bd. of Adjustment, 986 F. Supp. 544, 554 (E.D.Wisc. 1997) (AIndeed, such an injunction would do little more than direct the defendant to followthe law in the future.@).36A Westlaw search on September 28, 2009, located only two citing references to theprovision in two years in any database within Westlaw – an unpublished Third Circuit opinion anda citation in a defendant’s brief in the Second Circuit.It is theoretically possible that the provision is having an effect that is simply not capturedin published opinions. Based on my experience as a district court judge through November 2007,however, I do not believe that this is the case. I do not recall a single litigant ever citing theprovision to me. In the case I discuss below (see Part I.E., infra), counsel for the victim cited theGuideline provision without any observable effect on the outcome of the case.37U.S.S.G. ' 6A1.3(a) (emphasis added).38In my earlier testimony to the Commission, I recommended changes similar to thoseproposed here. This testimony reflects my current thinking and research on these issues.8
victim information in their pre-sentence reports as follows:' 6A1.1.Pre-sentence Report (Policy Statement)(a)(b)(c)The probation officer must conduct a pre-sentence investigation and submita report to the court before it imposes sentence unless C(1)18 U.S.C. ' 3593 (c) or another statute requires otherwise; or(2)the court finds that the information in the record enables it tomeaningfully exercise its sentencing authority under 18 U.S.C. '3553, and the court explains its finding on the record.Rule 32( c)(1)(A), Fed. R. Crim. P.The defendant may not waive preparation of the pre-sentence report.If a pre-sentence report is prepared, the probation officer must determinewhether any victim wishes to provide information for the pre-sentencereport.The proposed change would require the probation office to affirmatively seek out thevictim. It seems unlikely that a probation officer could properly prepare a thorough pre-sentencereport without obtaining the victim s views. Indeed, the rules already require the probationofficer to include victim information in the report.39 Because there is no way to know in advancewhether the victim will have relevant information for the report, the probation officer should berequired to investigate whether the victim has useful information. Of course, nothing in theproposed change would require the probation officer to include irrelevant or argumentativeinformation in the report.2. Disclosure of Pre-Sentence Report to the VictimThe Commission should change section 6A1.2 to insure that victims have reasonableaccess to pertinent parts of the pre-sentence report as follows:' 6A1.2.Disclosure of Pre-sentence Report; Issues in Dispute (Policy Statement)(a)(b)39The probation officer must give the pre-sentence report to the defendant, thedefendant's attorney, and an attorney for the government at least 35 daysbefore sentencing unless the defendant waives this minimum period. Theattorney for the government shall, if any victim requests, communicate therelevant contents of the pre-sentence report to the victim. Rule 32(e)(2),Fed. R. Crim. P.Within 14 days after receiving the pre-sentence report, the parties or thevictim, must state in writing any objections, including objections to materialinformation, sentencing guideline ranges, and policy statements containedSee FED. R. CRIM. P. 32(d)(2)(B).9
(c)in or omitted from the report. An objecting party or victim must provide acopy of its objections to the opposing party and to the probation officer.After receiving objections, the probation officer may meet with the partiesand any involved victim to discuss the objections. The probation officermay then investigate further and revise the pre-sentence report accordingly.Rule 32(f), Fed. R. Crim. P.At least 7 days before sentencing, the probation officer must submit to thecourt, and to the parties, and any involved victim, the pre-sentence reportand an addendum containing any unresolved objections, the grounds forthose objections, and the probation officer s comment on them. Rule32(g), Fed. R. Crim. P.Crime victims should have access to the substance of the pre-sentence report. Thepre-sentence report is the central document at sentencing. Indeed, the main event at manysentencing hearings is resolving challenges to the report. Without access to the substance of thatreport, crime victims cannot effectively participate in the sentencing process. They will trulyremain outsiders to a process, in spite of Congress command that they be brought in.I made this argument before the Commission in February 2005. In response, thePractitioners Advisory Group disputed my proposal. In a letter to the Commission,40 theyargued that Anothing in the CVRA or its legislative history states that crime victims should bepermitted to review portions of the pre-sentence report, dispute guidelines calculations, raisegrounds for departures, or as such rights would seem to imply, appeal a sentence on factual or [email protected] The Group also cited the legislative history of a proposed constitutional amendmentprotecting victim s rights, which in its view limited a victim s right to be heard to mere [email protected] sentencing B that is, merely providing victim impact information.The Practitioners Group s arguments are flawed for several reasons. First, the Group toonarrowly views the CVRA s relevant legislative history. As explained above, Congress intendedfor victims to have broad rights in the sentencing process, including rights to be reasonably heardin a meaningful manner. It is not reasonable to deprive victims of the critical information in thepre-sentence report. Second, the Group misdescribes the relevant history of the constitutionalamendment B known as the Victims Rights Amendment. It is true that the Amendment containeda right to be Areasonably heard,@ just as the CVRA does. The Group does not recognize, however,that the legislative history of the Amendment suggests that Congress was taking an expandingview of the victim s right to be heard at sentencing, including a view that would embrace victimopinion evidence, as discussed in the note below
Oct 20, 2009 · Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah, where I teach and write on crime victims rights and other criminal law subjects.1 I am also special litigation counsel to the National Crime Victims’ Law Institute. I. THE COMMISSION SHOUL
