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2007 Utah L. Rev. 861, *935

Once the victim receives relevant information from a presentence report, the victim no less than other participants at sentencing should be entitled to be heard on any disputed issues. For example, in a fraud case, if the defendant claims to have swindled only $ 5,000 and the government claims the loss is $ 10,000, the victim should be entitled to press her argument that the loss was $ 40,000. To do otherwise, is to deprive the victim of an opportunity to participate in the sentencing process and to turn the victim impact statement into a meaningless charade.

The Advisory Committee's view on this point is curious. The Advisory Committee did not directly quarrel with the position that victims should have the opportunity to be heard on disputed sentencing issues. Instead, the Advisory Committee would only go so far as to suggest that it

felt it would be desirable for the courts gradually to flesh out what the right to be heard means in this [sentencing] context (determining, for example, when the right to be heard would include the right to introduce evidence). It is by no means clear that the CVRA contemplates that victims will be entitled to access all of the particulars of the presentence report and be entitled to litigate issues concerning the application of various guidelines, etc. 418

This view is objectionable on many levels. First, given the congressional purpose of fundamentally changing the way crime victims are treated in the criminal justice process, it can hardly be desirable for courts to "gradually" determine what rights victims have. As Senator Kyl explained, "A central reason for these rights is to force a change in a criminal justice culture which has failed to focus on the legitimate interests of crime victims." 419 The CVRA was "meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process." 420

Second, the Committee diffidently opines that "it is by no means clear" that victims have the right to litigate disputed issues. 421 I will turn to the substance of that claim shortly. But even assuming it to be true, a fundamental purpose of the Federal Rules of Criminal Procedure is to provide clarity on issues that would otherwise have to be litigated. 422 The Advisory Committee could be "clear" that victims can litigate by simply putting in place my proposed rule. To do otherwise [*936] is, unfortunately, to invite continued uncertainty over a point of vital importance to crime victims.

Finally, perhaps the reason that the Advisory Committee would venture only that it is unclear whether victims have the right to dispute sentencing issues was a reluctance to stake out the contrary position. To maintain that victims cannot dispute sentencing issues would collide with both statutes and common sense. As for statutory requirements, it is hard to understand how victims will be "reasonably heard" at sentencing (as the CVRA commands) if they cannot contest the factors that may well drive a sentence - the Guidelines calculations. Moreover, Congress has already directly mandated that victims will have the opportunity to dispute sentencing factors when they relate to restitution. 423 Thus, if the Advisory Committee really wanted to stake out a victims-can't-litigate-at-sentencing position, it would have to awkwardly carve out a restitution exception. Finally, a victim is simply not treated with "fairness" if she is entirely excluded from the Guidelines process. 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.'" 424 It is not "meaningful" for victims to make sentencing recommendations without the benefit of knowing what everyone else in that courtroom knows - what the recommended Guidelines range is. Yet Congress plainly

418 CVRA Subcommittee Memo, supra note 66, at 19.
419 150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
420 Id. (statement of Sen. Kyl); see also 150 Cong. Rec. S4263 (Apr. 22, 2004) (statement of Sen. Feinstein) (describing the CVRA as a "new and bolder approach than has ever been tried before in our Federal System").
421 CVRA Subcommittee Memo, supra note 66, at 19.
422 See supra notes 103-310 and accompanying text (providing illustrations of rules changes made to provide clarity).
423 See 18 U.S.C. § 3664(d)(2)(A) (2006) (probation officer shall disclose to victim amount subject to restitution as calculated by the probation officer and the opportunity of the victim to file an affidavit seeking greater restitution); see also id. § 3771(a)(6) (giving victims "the right to full and timely restitution as provided in law").
424 Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)) (emphasis added).

DAVID SCHOEN
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