Proposed Rule 11 Amendment to Require Prosecutors to Notify and Consider Victims' Views on Plea Agreements

Page 19 of 78 2007 Utah L. Rev. 861, *887 concerning ... [a] plea." !°7 But this brief mention in the rule is inferior to my specific proposal for several reasons. First, Rule 11 is the "script" when federal judges accept guilty pleas. Victims should be directly included here so that judges do not inadvertently overlook victims’ rights. Second, stating only that victims may be "reasonably heard" regarding a plea, without explaining how that will occur, invites litigation and uncertainty. For example, is a victim reasonably heard when allowed to be heard only through written submission? !°° Is a victim treated "fairly" if the court is required to address the defendant in open court but not to address the victim? If the court does not address the victim, when should the victim try to interrupt the proceedings to be heard? Should the victim's views enter into the court's calculation about whether to accept the plea? All of these questions are answered in a simple and straightforward way by my proposal - a proposal which the Advisory Committee should adopt. Rule 11(c)(1) - Prosecution To Consider Victims’ Views on Pleas The Proposals: I proposed that the prosecution should be required to consider victims' views in developing any proposed plea arrangement as follows: (1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. The attorney for the government shall make reasonable efforts to notify identified victims of, and consider the victims’ views about, any proposed plea negotiations. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, [*888] the plea agreement may specify that an attorney for the government will ... [listing various options]. !°? The Advisory Committee did not recommend any change. °° Discussion: My proposed change required prosecutors to make reasonable efforts to notify victims about pleas and to consider the victims’ views regarding pleas. This requirement was taken almost verbatim from the Attorney General Guidelines for Victim and Witness Assistance, which already directs prosecutors to "make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations." !©! According to the Department of Justice, "twenty-nine states [already] require prosecutors to "consult with’ or "obtain the views of victims at the plea agreement stage." 1° 157 Proposed Amendments, supra note 71, R. 60(a)(3), at 15-16. 158 Compare United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345-46 (D. Utah 2005) (finding that a victim must be heard orally at sentencing), and United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (noting in dicta that § 3771(a)(4) "requires the victim to be given an opportunity actually to be “heard! rather than afforded some alternate means of communicating her views") (emphasis in original), with United States v. Marcello, 370 F. Supp. 2d 745, 749 (N.D. Ill. 2005) (holding that "in detention hearings, the victim's right to be reasonably heard does not mandate oral statements, particularly when the [victim] has no personal knowledge of the guilt of the defendant(s) and offers an opinion only on a matter that is not in dispute"). 159 Cassell, Proposed Amendments, supra note 4, at 868. 160 Proposed Amendments, supra note 71. 161 U.S. Dep't of Justice, Office for Victims of Crime, Attorney General Guidelines for Victim and Witness Assistance 30 (2005) (defining what can be considered in determining whether notice is reasonable in a particular case) [hereinafter Dep't of Justice, Attorney General Guidelines]; see also U.S. Dep't of Justice, Office for Victims of Crime, New Directions from the Field: Victims' Rights and Services for the 21st Century 87 (1997) ("Prosecutors should make every effort ... to consult with the victim on the terms of any negotiated plea ... .") [hereinafter Dep't of Justice, New Directions from the Field]. 162 Dep't of Justice, New Directions from the Field, supra note 161, at 75 (quoting National Victims' Center, 1996 Victim's Rights Sourcebook: A Compilation of Victim's Rights Laws, Arlington, VA: National Victim Center, 1997 § 5). DAVID SCHOEN HOUSE_OVERSIGHT_017654