Proposed Amendments to Federal Sentencing Guidelines Emphasizing Victim Information in Presentence Reports

Page 33 of 52 2005 B.Y.U.L. Rev. 835, *890 alternative way is via the probation officer. If there is any doubt about whether the right "to be heard" covers communications to the probation officer, the right "to be treated with fairness" comfortably covers such a requirement. The proposed rule requires that the probation office affirmatively seek out the victim. It is unlikely that a probation officer could properly prepare a thorough presentence report without obtaining the victim's views. Indeed, the rules already require the officer to include victim information in the report. 773 Because there is no way [*891] to know in advance whether the victim will have relevant information for the report, the probation officer should be required to investigate that possibility. Of course, nothing in the proposed rule change would require the probation officer to include irrelevant or argumentative information in the report. Rule 32(d)(2)(B) - Presentence Report To Contain Victim Information The Proposal: Rule 32(d)(2)(B) should be amended to refer directly to victims in describing the content of the presentence report and to conform to the style used for information about defendants as follows: (2) Additional Information. The presentence report must also contain the following information: (A) the defendant's history and characteristics, including: (i) any prior criminal record; (ii) the defendant's financial condition; and (iii) any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment; (B) verified information, stated in a nonargumentative style, that assesses the financial, social, psychological, and medical impact on any individual against whom the offense has been committed any victim of the crime ... The Rationale: As discussed at the outset of this article, 734 Rule 32(d)(2)(B) typifies the victim's absence from the current federal rules by failing to use the word "victim" in describing what information belongs in a presentence report. In addition, the rule should be amended to conform to the style used in describing the presentence report's information about the defendant. The rule dealing with the [*892] defendant's background 7° contains no requirement that information be "verified" or stated in a "non- argumentative style." As a matter of even-handedness, no such requirement should be listed for victim information. Of course, well-trained federal probation officers will no doubt attempt to verify all information in the presentence report and phrase all of the report in a non-argumentative style. The peculiarity in the current rule is that, among the numerous subjects covered by the rules, the verification and non-argumentative style requirements apply to victim information alone. Rule 32(e) - Prosecutor To Disclose Presentence Report to Victim The Proposal: The prosecutor should be required to disclose relevant parts of the presentence report to victims as follows: (ec) Disclosing the Report and Recommendation. 233 See supra notes 10-13 and accompanying text (discussing Rule 32(d)(2)(B)). 234 See supra notes 10-13 and accompanying text. 235, Fed. R. Crim. P. 32(d)(2)(A). DAVID SCHOEN HOUSE_OVERSIGHT_017747