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Page 55 of 78 2007 Utah L. Rev. 861, *937 Focusing specifically on the issue of victim impact information, the [*938] Third Circuit is correct that, under the current rules, it is "unworkable" to provide advance notice of upward (or downward 44) departures based on victim allocution at the sentencing hearing. Under my proposal, however, victims would be integrated into the presentence process for determining Guidelines issues, thereby ensuring that the defense has fair notice of any upward departure and the government has fair notice of any downward departure. Regardless of whether the Guidelines are advisory, this is the fairest way to proceed for defendants, the prosecution, and victims. (New) Rule 32(1)(4) - Victims’ Right to be Reasonably Heard at Sentencing The Proposals: Even before passage of the CVRA, the Federal Rules of Criminal Procedure gave victims of crimes of violence or sexual abuse the right to be heard at sentencing. After the CVRA extended such rights to all victims, I proposed simply striking the limitation in the rule so that it would apply to all victims as follows: (B) By a Victim. Before imposing sentence, the court must address any victim of a the crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence ... . 434 The Advisory Committee tracked my change of striking the crimes of violence and sexual abuse limitation; but the Committee also substituted language from the CVRA about being reasonably heard as follows: (B) By a Victim. Before imposing sentence, the court must address any victim of a the crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence to be reasonably heard. 435 [*939] Discussion: My proposal retained the current language in Rule 32 allowing the victim "to speak or submit any information about the sentence"; the Advisory Committee would allow the victim "to be reasonably heard" at sentencing - language lifted from the CVRA. In this area, the Advisory Committee has paradoxically used the CVRA as an occasion for possibly restricting victims’ rights. Under Rule 32(i)(4)'s current language, there is no doubt that the victim could "speak" at sentencing (that is, give an oral statement). Under the proposed language, litigation could result about whether victims could be "reasonably heard" without being allowed to speak (that is, be confined to purely written submissions). Indeed, during the Advisory Committee meeting on the proposal, the Advisory Committee reporter conceded that "courts would have to construe exactly what [the phrase] meant as situations came before them." °° It is worth reflecting for a moment on how backward the Advisory Committee's approach to this issue is. Before the CVRA's enactment, victims of crimes of violence and sexual assault had the right under Rule 32(1) "to speak" at sentencing (along with the right to submit information). When Congress enacted the CVRA, the Advisory Committee and the Judicial Conference had (11th Cir. 2006); United States v. Vampire Nation, 451 F.3d 189, 195-98 (3d Cir. 2006); United States v. Walker, 447 F.3d 999, 1006-07 (7th Cir. 2006); United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005). The First Circuit has held only that the failure to provide notice does not constitute plain error. See United States v. Mateo, No. 06-1805, 2006 WL 1195676, at 1 (1st Cir. May 5, 2006). #3 For a helpful correction to the idea that victims’ interests are always adverse to defense interests at sentencing, see generally Benji McMurray, The Mitigating Power of a Victim Focus at Sentencing, 19 Fed. Sent'g Rep.125 (2006). 44 Cassell, Proposed Amendments, supra note 4, at 903. 435 Proposed Amendments, supra note 71, R. 32(i)(4)(B), at 13. The Advisory Committee also proposes striking out existing language in the rule allowing guardians or family members to exercise the right to speak on behalf of minor and incapacitated victims. For criticism of this deletion, see supra notes 117-125 and accompanying text. #6 Advisory Committee Minutes, supra note 68, at 14 (comment of Prof. Beale). DAVID SCHOEN HOUSE_OVERSIGHT_017690