I recently argued that they should to the U.S. Sentencing Commission. Currently the procedures at sentencing envision the parties arguing the various factors, but not a crime victim. This approach reflects an outdated way of thinking about criminal procedure — that only the state and the defendant have legitimate interests in the outcome of a criminal case.
In my view, Congress has rejected this approach in passing the Crime Victims Rights Act (CVRA) in 2004. The Act promises crime victims that they will be treated with “fairness” through the process and, with regard to sentencing in particular, that they will have the right to be “reasonably heard” at sentencing proceedings. In passing the CVRA, Congress intended “to afford [victims] due process” in the federal criminal justice system. Victims are not treated fairly and reasonably heard on sentencing issues unless they are given a chance to speak to federal sentencing guidelines issues. The federal sentencing guidelines, while becoming more and more “advisory” every day, are still the single most important factor in determining a federal sentence.
I proposed to the Sentencing Commission that they amend one of their policy statements on sentencing procedues to specifically give victims rights in the process. My proposed change to section 6A.1.3 is:
When any factor important to the sentencing determination is reasonably in dispute, the parties and any involved victim shall be given adequate opportunity to present information to the court regarding that factor. . . .
Such a change would allow a crime victim, for example, to present evidence regarding whether an assault was “aggravated” or “minor” and the nature of the injuries that resulted from the assault — important factors in applying the assault guideline. In my testimony, found here, I offered a specific example of a crime victim who, remarkably, was not allowed to be heard at sentencing on the nature of his own injuries from an assault! There is no good policy argument for preventing a victim from providing such information to the trial judge and giving the judge highly useful information for crafting the appropriate sentence.
Some of the Sentencing Commissioners seemed receptive to my proposal. I hope that the full Commission will move forward with it soon and, more generally, will adopt procedures tomore fully integrate crime victims into the sentencing process.