An interesting article that came out this past Sunday in the Roanoke Times about a little known, yet widely practiced, part of federal sentencing: a written recommendation from United States Probation Officer that is given to the Judge in addition to the Presentence Report. Federal Rule of Criminal Procedure 32 requires a presentence report for offenses. The report includes a summary of the offense, a summary of the sentencing guidelines, and discusses all aspects of the offender's life including work history, substance abuse issues, mental and physical health problems, and includes calculations of possible sentencing outcomes. Much investigation and preparation goes into both getting information for the report as well as getting information to challenge legal inaccuracies, factual disputes, or other challenges to the report. Often times, issues identified in the presentence report are contested at the sentencing hearing in open court.
The Roanoke Times article report on the questions raised by the process, in addition to the presentence report, of the probation officer's "recommendation" which can be a written recommendation or an off the record conversation that takes place between the Judge and the Probation Officer.
In Roanoke, after the sentencing hearing, the offender received a copy of the presentence report in the mail which included the mistakenly mailed confidential recommendation from the probation officer. The defense attorney and the offender both thought the report contained inaccuracies and painted an unfairly unflattering picture of the person. Here is an excerpt of the article (full article here):
No one who tracks how each of the nation's federal districts deals with the rule about sentencing recommendations, according to the national office of the federal defenders service and two longtime U.S. judges in Roanoke. Most districts keep the recommendations secret, between the judge and probation officer, said Karen Edmonds, a Washington-based spokeswoman for the administrative office of the U.S. Courts.
"There is no justification for a lack of transparency in this critical aspect of the adversary process," University of Arizona law professor Marc Miller wrote in an e-mail response to questions.
Miller, editor emeritus of the academic journal Federal Sentencing Reporter, is among scholars and lawyers who for years have called for the U.S. Sentencing Commission and Congress to change the federal rule. Unless defense attorneys and prosecutors have a chance to challenge a probation officer's recommendation, a judge could impose a sentence based on wrong information, Miller said.
Paul Dull, a Roanoke defense lawyer not involved in Wooten's case, said basic fairness is at stake.
"We all have clients who for one reason or another" irritate a probation officer, said Dull, who has years of federal courtroom experience. "And there's no way for us to know if the probation officer said to the judge, confidentially, 'Hey, this guy. ... He was uncooperative.' "
The suggestion of such a scenario set off a stir in Roanoke's federal justice system over the summer.
Cargill , a federal defender since the Western Virginia office opened in 2006, represented former restaurateur Wooten, who was sentenced in July to 33 months in prison. A month later, Wooten, who had already reviewed his pre-sentence report with Cargill, received a routine copy in the mail.
Also in the envelope was the probation officer's confidential sentencing recommendation, accidentally mailed from the probation office.
Wooten and Cargill thought the probation officer's recommendation painted Wooten in a worse light than he deserved.
On Aug. 11, Cargill fired off a letter to the head of the probation office, the U.S. attorney's office and the judicial district's chief judge. He called for a review of sentencing recommendations "to be sure they do not contain facts that are not in the presentence report" and slammed the events that he said left his client unable to respond to inaccurate statements.
Such open criticism of court workings is unusual for lawyers.