HOUSE_OVERSIGHT_017746.jpg

Page 32 of 52

2005 B.Y.U.L. Rev. 835, *888

In its current form, Rule 32(c)(1)(B) suggests that the probation officer is required to include restitution information only in a
case covered by the MVRA because only then is restitution (in the language of the current rule) "required." 228 No sound
reason exists [*889] for such a limitation, particularly after the enactment of the CVRA. The CVRA guarantees that victims
have "the right to full and timely restitution as provided in law." 229 Even when the court is proceeding under the discretionary
VWPA, without appropriate information in the presentence report, the court cannot determine whether to exercise its discretion
to award restitution. Therefore, the rule should be changed to require that the presentence report contain restitution information,
from which the court can determine whether to make a restitution award.

(New) Rule 32(c)(3) - Probation Officer To Seek Out Victim Information

The Proposal:

The probation officer preparing a presentence report should be directed to determine whether a victim wishes to provide
information for the report as follows:

(3) Victim Information. The probation officer must determine whether any victim wishes to provide information for the
presentence report.

The Rationale:

Under the CVRA, the victim has "the right to be reasonably heard at any public proceeding in the district court involving ...
sentencing ...." 230 This right clearly encompasses the victim's right to allocate, or make an oral statement at sentencing, as
discussed below in connection with Rule 32(i). 231 However, the right to be "reasonably heard" also appears to include the
opportunity to provide information to the probation office during preparation of the presentence report.

As Senator Kyl explained, the victim's right to be heard at sentencing should be broadly construed:
[*890]

[The CVRA] provides victims the right to reasonably be heard at any public proceeding involving ... sentencing. This provision
is intended to allow crime victims to directly address the court in person. It is not necessary for the victim to obtain the
permission of either party to do so .... 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 victims' family and the community, and sentencing recommendations ....

It is not the intent of the term "reasonably" in the phrase "to be reasonably heard" to provide any excuse for denying a victim
the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to
appear personally and directly address the court. This section would fail in its intent if courts determined that written, rather
than oral communication, could generally satisfy this right. On the other hand, the term "reasonably" is meant to allow for
alternative methods of communicating a victim's views to the court when the victim is unable to attend the proceedings. Such
circumstances might arise, for example, if the victim is incarcerated on unrelated matters at the time of the proceedings or if a
victim cannot afford to travel to a courthouse. In such cases, communication by the victim to the court is permitted by other
reasonable means. 232

In light of this legislative history, victims undoubtedly have a right to make an in-court statement at sentencing as part of their
right "to be heard." But they also have the right to communicate in other ways with the court. At sentencing, an obvious

_______________________________________
228 Fed. R. Crim. P. 32(c)(1)(B).

229 18 U.S.C.A. 3771(a)(6) (West 2004 & Supp. 2005).

230 18 U.S.C.A. 3771(a)(4).

231 See infra notes 273-75 and accompanying text.

232 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphases added); see also id. (statement of Sen. Feinstein).

DAVID SCHOEN

HOUSE_OVERSIGHT_017746