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February 16, 2005

Pondering a victim's role in sentencing

One quite intriguing issue that came up twice during today's US Sentencing Commission hearing (highlights here) concerned the role of crime victims at sentencing.  Both Judge Cassell and victim advocate Collene (Thompson) Campbell discussed briefly victim participation in the federal sentencing process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act (codified at 18 USC § 3771). 

The tail end of Judge Cassell's testimony talks through these victim rights issues in some depth (and includes the text of the new statute).  And the Q & A at the USSC hearing today spotlighted some of the intriguing issues raised by having to give victims a defined role in sentencing (e.g., should victims have a right to see (and contest findings within) a presentence report?).

The particulars of working victims into the sentencing process will present various challenges, but my first question is who exactly qualifies as a victim under the new federal law.  The new statute states: "For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense." 

In the context of some offenses, the victims as so defined will be obvious; but often there could be tough legal questions about who could claim to be "directly and proximately harmed" by various federal offenses.  Are there any "victims" in drug cases, in firearm possession cases, in immigration cases?  Are there hundreds of thousands of victims in large corporate frauds that impact financial markets?   (Notably, the statute has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" the new statutory rights, "the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.")

Moreover, because the statute gives victims a right to be "reasonably heard" at a plea proceedings, it would seem that "victim" status has to be determined based on offenses charged and not just offenses that are the basis of a conviction.  But that in turn leads me to wonder exactly when victims' rights vest (I would think at the time of the offense rather than the time of indictment), and also whether such rights might at some point devest (perhaps upon the dropping of a charge or an acquittal).

In sum, though granting victims rights in the criminal justice system sounds good in theory, I suspect it will prove quite challenging in practice.  Notably, the new Crime Victims Act gives the Attorney General a year to promulgate regulations to enforce these rights, and I am now very interested to see what those regs will say.  I would bet some of these issues have been addresses in some states that may have similar legislation, but federal laws and crimes are likely to present its own unique issues.

February 16, 2005 at 01:01 AM | Permalink


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Here is an interesting victim case, which I urge all to read; no doubt Judge Woodcock got it right that the falsely accused and convicted are victims, but one wonders about whetehr and how the government will use their testimony or statements at sentencing. Note too the post-conviction problem for Miller. United States v. Morehouse, D. Me, 03-88-B-W (Nov. 22, 2004) found at med.uscourts.gov/opinoins/Woodcock/2004.asp

Posted by: Theodore G. Fletcher | Feb 16, 2005 12:13:03 PM

I am studding Law in Argentina. I found really useful all you wrote here because I am preparing a class about the role of the Victim in different Law Systems. I would like to know more, of your system, about the role of the victim in the Trial and the role of the Fiscal Prosecutor in the Trial and how the interests work between them when the victim wants to accuse and the Fiscal Prosecutor prefer to make a deal or not to prosecute the crime in order of its faculties given by law. I would like to know how all this work in Local and Federal Law. Do you have something to send me or an adress to visit and get more information about? Please.
Hope you could help me.
Emilio Cilley Wilkinson

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