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2005 B.Y.U.L. Rev. 835, *894

Because a victim has the right to be heard on a Guidelines issue, a victim also has the right to see the document which contains the Guidelines calculations - the presentence report. 243 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." 244 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 and reviewing the document that underlies those calculations.

An independent basis for victims reviewing presentence reports is within the victim's broad right under the CVRA to be "treated with fairness." 245 This right easily encompasses a right of access to relevant parts of the presentence report. The victim's right to fairness gives victims a free-standing right to due process. As Senator Kyl instructed, "Of course, fairness includes the notion of due process ... . [*895] This provision is intended to direct government agencies and employees, whether they are in the executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process." 246 Due process principles dictate that victims have the right to be apprised of Guidelines calculations and related issues. The Supreme Court has explained that "it is ... fundamental that the right to ... an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner.'" 247 It is not "meaningful" for victims to make sentencing recommendations without the benefit of knowing what everyone else in that courtroom knows: the recommended Guidelines range and how that range was derived. Congress plainly intended to pass a law establishing "fair play for crime victims, meaningful participation of crime victims in the justice system, [and] protection against a government that would take from a crime victim the dignity of due process." 248 In federal sentencing today, meaningful participation means participation regarding Guidelines issues.

It is interesting that the federal law allowing appointment of a guardian ad litem for juvenile victims appears to allow for access to the presentence report. The law guarantees that, upon appointment, a guardian ad litem "may have access to all reports, evaluations and records, except attorney's work product, necessary to effectively advocate for the child." 249 In a recent federal "shaken baby" case in Arizona, a guardian for the child victim received access to the presentence report under this provision. 250 The guardian in that case found it exceedingly difficult to formulate an appropriate sentencing recommendation without access to the presentence report. After successfully gaining access to the report, she found a need to change her original recommendation. She later reported that "but for the [*896] disclosure, I would have ended up making a mis-informed recommendation." 251

A victim's right to review the presentence report is also important to ensure proper restitution. Federal law guarantees most victims of serious crimes the right to restitution. 252 Reinforcing those laws, the CVRA guarantees that victims have "the right

243 Magistrate Judge Orenstein of the Eastern District of New York, who has written many thoughtful opinions on the CVRA, has taken a contrary position. See Report and Recommendation, United States v. Ingrassis, No. CR 04-0455 at 31 (E.D.N.Y. Sept. 7, 2005) ("In the absence of any change to applicable rules or the Guidelines, the court is under no legal obligation to ensure such disclosure" of the presentence report.). For the reasons explained here, I think he takes too narrow a view of the victim's rights at sentencing.
244 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added).
245 18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005).
246 150 Cong. Rec. S10,911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphases added).
247 Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
248 150 Cong. Rec. S4264 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (emphasis added).
249 See 18 U.S.C. 3509(h)(2) (2000).
250 See United States v. James, No. CR-04-0651-PCT-JAT (D. Ariz. 2005).
251 E-mail from Keli Luther, Arizona Voice for Victims, to Paul G. Cassell (June 20, 2005) (on file with author).
252 See 18 U.S.C. 3663A (Mandatory Victims Restitution Act); see also id. 3663 (Victim Witness Protection Act).
DAVID SCHOEN
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