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October 24, 2010

Should probation officers be giving federal judges secret sentencing recommendations?

The question in the title of this post is inspired by this effective Roanoke Times piece.  The piece spotlights a rarely discussed but important issue of federal sentencing practiceunder the headline "Federal sentences are not clear-cut; Quite often, a judge will weigh heavily what a probation officer suggests in a pre-sentence report."  Here are excerpts:

The mistakenly mailed court document offered a rare glimpse into the murky world of federal sentencing.  And veteran Roanoke defense lawyer Randy Cargill didn't like what he saw.

Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness.  In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge.  Cargill accidentally saw the probation officer's recommendation for his client.  The report was "misleading and inaccurate," Cargill wrote in a protest letter.

His client, a former Botetourt County restaurant operator now serving time for wire fraud and lying on loan documents, said the probation officer mischaracterized him, leading the judge to lengthen his prison term.  "I'm upset I got 33 months," said Eric Wooten, 35, before he reported to prison this month.  "But the guy that got 10 years, that's who's really affected by this."

Cargill's complaint sparked rounds of discussion among members of the federal probation office, U.S. attorney's office and federal judiciary.  In the end, nothing changed.  The private collaboration between probation officer and sentencing judge continues, just as it does in courts across the country.

After federal defendants are convicted, probation officers prepare a report to help judges decide punishment. The pre-sentence report discusses the convict's history, family, employment, ability to repay costs of the offense, and how the crime affected victims. The report includes a calculation of possible sentences under federal guidelines, based on scores for the offense and the defendant's criminal history.

This part of the pre-sentence report, while sealed from public view, is shared with the prosecution and the defense and often is vigorously debated in front of a judge in open court.  Another part of the report rarely sees the light of day in most of the nation's 94 judicial districts.  This is where the probation officer advises the judge what sentence to impose.  "By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer's recommendation on the sentence," says the Federal Rules of Criminal Procedure, which governs the operation of U.S. courts.

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.' "...

Chief Judge Conrad called Wooten's case "an anomaly" in which a "breakdown of communication" created confusion about the adequacy of the financial documents Wooten submitted.  Nevertheless, the process worked as it should, Conrad said.

Conrad briefly worked as a probation officer early in his career and wrote sentencing reports himself.  As a judge, he said he finds the officers' sentencing recommendations helpful.  Probation officers spend time investigating cases and defendants, often interviewing lawbreakers' family and friends. "They may look at things ... that I would miss," Conrad said.

Probation officers work for the court, for judges -- not for the defense or the prosecution, Conrad said.  Any facts the probation officer turns up are supposed to be in the report shared with the defendant and the lawyers, Conrad said. The sentencing recommendation is supposed to be the probation officer's interpretation of the facts.

People accused of a crime have a constitutional right to face their accusers, but that's at trial, for a judgment of guilt or innocence, Conrad said.  Sentencing is a different process, he said.

October 24, 2010 at 09:22 AM | Permalink


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"Chief Judge Conrad called Wooten's case "an anomaly". Really!!!!!!
What planet is this judge living on? This sort of crap goes on every day. If you look carefully at
the many recent articles about prosecutorial misconduct and dig just a little deeper you will, in many cases, find a probation officer "cahootin" with the prosecutor. A willing participant in the "anything goes" to get a conviction school. Especially at the federal level.

The worst of it is the PO who will tell the accused one thing and then pull the rug out at the last minute before sentencing. For example, the PO will write an initial PSR that would lead the defendant to believe that his sentence may only result in a period of probation then a subsequent PSR just days before the sentencing hearing, for reasons that are never fully explained, disallows all of the "promised" considerations that would allow the lesser sentence. Cooperation, safety valve, etc. The PO puts the blame on the prosecutor, the prosecutor refuses to discuss the issue, and since the plea agreement has already been accepted there is little that can be done. Of course, poor representation by the defense has its part in this scenario also when the defense lawyer has not "nailed down" the "promises" made by the PO and prosecutor during the plea negotiations. Attempts by the defense attorney to challenge the findings in open court during the sentencing are seldom successful as the judges are too complacent to seek the truth and take the path of least resistance. The result is that the defendant often finds him/herself facing incarceration rather than the lesser, expected/promised, probation.

Posted by: Anon | Oct 24, 2010 12:28:11 PM

Personally, I prefer writing reports for Judges who have our recommendation disclosed. I also recommend downward variances in many cases, and upward variances in a few.

There are, sadly, too many POs who harbor a prosecutorial bent. In some cases, they come to the job that way. Many of them, however, are created by the hostile and uncooperative attitude of some defense attorneys. A new presentence officer (at least in my district, a very large one), will experience that the Government is friendly and helpful, often even respectful, while the defense attorney is rude, evasive and even aggressive in thwarting the investigation. The initial reaction is that credibility is given to the Government. This will persist unless the PO either experiences an unethical prosecutor, or is somehow able to see past the unpleasant experience with defense counsel to the underlying validity of counsel's arguments. Now sometimes what defense counsel criticizes as a mischaracterization is really just a characterization. Without knowing more about the case that inspired this posting, it is tough to know if Mr. Cargill's stated concerns are objectively valid or not. Other times, their has clearly been a failure to bring balance to the sentencing assessment. Chicken v. Egg. Are POs sometime prosecutorial because some defense attorneys are hostile, or are some defense attorneys hostile because some POs are prosecutorial?

Posted by: USPO | Oct 24, 2010 1:13:49 PM

I think all parties should be held accountable in malpractice torts for deviations from professional standards of due care causing an injury in a crime victim. All of you here depend on the criminal for your jobs. You will do nothing to scare, deter, or inconvenience that precious commodity. There are 20 million major crimes a year, 2 million prosecutions. All of you are in utter failure in protecting the public. Then a large fraction of the people in your clutches are innocent.

That leaves self help. The public must bring street justice to the criminal and to his protectors, enablers, and immunizers.

Posted by: Supremacy Claus | Oct 24, 2010 2:28:40 PM

so typical CRIMINAL behavior from what has become a CRIMINAL GOVT! lies, secrets, doing things in darkness is the typical actions of a CRIMINAL.

Posted by: rodsmith | Oct 24, 2010 2:28:50 PM


A part of the solution is for counsel to be professional and courteous (and, indeed, God forbid, forthcoming) REGARDLESS of how they perceive the PO. Professionalism and honesty always pay dividends in the long run, no matter how hard they may be in any given case. In addition, they are virtues per se, and should be practiced for that reason alone.

Posted by: Bill Otis | Oct 24, 2010 2:41:42 PM

The title of the post is inflammatory-the law provides for a confidential sentencing recommendation should the federal judge desire. Many courts allow for the disclosure of the recommendation. Most do not. Regulations bar any "secret" disclosure in the confidential recommendation that is not already contained in the report.

Some judges who once authorized disclosure of the confidential recommendation reversed course after defense counsel abused the privelege and would berate officers if they did not agree with the officer's recommendation.

Posted by: mjs | Oct 24, 2010 3:31:30 PM

There should be no secret "anythings" in this process. Because no participant in this system can be counted on to be totally objective and neutral, probation officers included, such "secret recommendations" are simply ex parte communications that both the defense and the prosecution should have a right to confront.

Posted by: Grotius | Oct 24, 2010 5:11:38 PM

Grotius --

I respectfully disagree in part. The PO is in some ways similar to the judge's clerk, or to a magistrate judge. I see nothing wrong with the judge calling in any of the three for a private conversation and asking, "I keep going around and around on this one. Do you have any particular thoughts?"

I also think mjs makes meritorious points.

Posted by: Bill Otis | Oct 24, 2010 5:37:49 PM

There is no role for ex parte communication to a judge about a case, in our adversarial system. The probation officer is not a lawyer, so the judge is not asking for a recommendation in order to interpret the law. The judge is asking for a secret recommendation from the probation officer to find out facts -- "really, how bad is this dude?" In our adversarial system, there is simply no proper place for this type of ex parte communication.

The comparison to a law clerk or magistrate is not apt, either. Those lawyers do not undertake factual investigations. Probation officers do. It would be more analogous to have the judge call up the arresting officer and ask what the officer thinks about the defendant. Again, in our adversarial system, there is simply no role for such a conversation. If you want to ask the probation officer in open court his view of an appropriate sentence, go ahead. The only reason for secrecy is to hide the information from the parties.

Posted by: Mark | Oct 24, 2010 7:05:57 PM

The probation officer is an arm of the court and can be used in any way the court sees fit. As I said, some judicial officers authorize release of the recommendation section of the PSR and some do not.

Critics are confusing the recommendation section of the PSR which is a matter of written record and a presentence meeting with the judge during which information that is not part of the written record may be discussed. Most judges are scrupulous about not relying on information not disclosed to the defendant.

Posted by: mjs | Oct 24, 2010 8:19:40 PM

Mark --

The judge's law clerk normally sits in court when hearings are held. Let's say the clerk has been there to see the defendant enter his plea at a Rule 11 proceeding. The defendant hems and haws a bit, and interrupts the judge a few times, but untimately admits his guilt, and for the most part seems well-behaved and arguably contrite.

When court adjourns, the judge asks his clerk, in chambers, what he thinks of the defendant and his performance, and the clerk answers.

1. Do you think this is an impermissible exchange between judge and clerk?

2. Do you think the judge is obliged to report to counsel his conversation with the clerk?

BTW, mjs is correct that a policeman is an officer of the executive branch, and thus affiliated with a party (the prosecution), while the PO is an arm and an employee of the court. So no one would disagree that the judge cannot ex parte call up the cop, but the cop is, constitutionally, in a very different place from the PO.

Posted by: Bill Otis | Oct 24, 2010 9:34:32 PM

I have been an FPD for 30 years- before and after the SRA of 1984. One pre-guideline reason the USPO's didn't want the defendant to see any recommendation letter-or have a copy of the PSI- was that they had to supervise that same person when they were released. With the advent of the Guidelines some things changed. A much more adversarial relationship was created between defense lawyers and the PSI writers who were separarted fron the supervising probation officers. The PSI writers, unlike lawyers, had a hard time not taking defeat-or being wrong about the guidelines- personally. As a practical matter the USPO's were not independant fact finders on the facts that drove the guidelines but had to rely on the prosecutors.

The disclosure of rec letters can be irrelevent or meaningful. When Rule 32 was changed to provide for diclosure unless excepted by Local Rule most Districts immediatly adopted such a rule. In many districts the Judges rely heavily on the probation office for more than just an additional view (informed by a single meeting of an hour or so) of the defendant. Restitution, Immigration or other collateral consequences, and the PO's view of the defendant's reasons for a reduced sentence related to personal issues of family, health and work all get the exparte treatment in a rec letter or private meeting . I have had several experiences where incorrect or inaccurate information in the rec letter was exposed during the sentencing proceeding.

Ultimately the harm of this practise is either minor-for those judges who do not rely on the PO's and sentence independently or major for those Judges who depend heavily on the USPO to decide what to do. If there was a way to spellcheck this I couldn't figure it out.

Posted by: ++scott tilsen | Oct 25, 2010 10:16:14 AM

Many years ago, I appeared before a state court judge who wouldn't let the lawyers see the recommendation in the pre-sentence report. I persuaded him, on the authority of Mempa v. Rhay, 389 US 128 (1967) (probation revocations) and Gardiner v. Florida, 430 US 349 (1977)(capital sentencing), that I had a Fourteenth-Amendment due process right to see the recommendation on behalf of my client. After that, we all saw the recommendations in every case. I think it's still a good argument, and urge others to try it. After all, how can the lawyer advocate for the client in ignorance of that recommendation?

Posted by: Greg Jones | Oct 25, 2010 11:31:56 AM

This is just another reminder of the importance of defense attorneys sucking up to the POs.

I guess the Christmas Card list just got longer.

Posted by: Matt | Oct 25, 2010 1:15:55 PM


No and no. The judge sees the same facts as the clerk. As do the parties. It's a hearing in open court. Unlike with a probation officer doing a factual investigation on his own, the clerk in your example is not doing independent factfinding, and there's no secrecy. That's the difference. Facts. Adversarial process. Openness. Basic stuff, but important stuff. And the counter-argument, in the face of these basic realities, is fear that counsel will pressure the probation officer? In my opinion, as a matter of principle, this is not a close call.

I am not surprised by the existence of the current rules, however. Government employees, whether judges, probation officers, or prosecutors, are just more comfortable with secret government proceedings than open proceedings. They always have been, and they always will be. That's why half of the Bill of Rights (amendments four through eight) are restrictions on the federal judiciary in the first place.


Posted by: Mark | Oct 25, 2010 1:26:37 PM

Probation officers may be nominally employees of the court, but they work for an agency that has a law enforcement purpose (even if the supervising officers and the PSI officers are separated by role). This is a far cry from a true Article III/judicial employee like a law clerk, court clerk, etc.

Posted by: anon | Oct 25, 2010 2:11:59 PM


I disagree. I've been a USPO for a long time, working in various offices and districts, some small, some not-so-small. Throughout, we handled the recommendation portion of the report the same way. It is not the place for new facts, and all of the training I've ever received (or presented) has placed a strong emphasis on that. There should be nothing "new" presented to the Judge in the recommendation, just a brief summary, followed by our opinion as to what would be a just sentence. I am sure occasionally an officer and/or supervisor miss something and a new fact is introduced, but I think that is rare, and usually questioned by the Judge when it happens. You'd probably find reading the recommendations a boring rehash of the highlights of the report, actually, and the recommendation probably wouldn't surprise you that much, either.

I think the argument for keeping them confidential would have to come from the Court. Most USPOs probably wouldn't feel that strongly about the issue, and I doubt the actual content of the recommendations would change even if the rule changed (a comparison of recommendations in districts where they are shared vs confidential would be an interesting study). Nonetheless, I think many Judges feel it's important to know what the probation officer thinks, and see no harm in learning that confidentially (largely because it is presented in a manner that doesn't contain new facts). Of course they can give the recommendation whatever weight they want. They usually know the officers serving them pretty well, and I suspect they give the recommendations of some officers more weight than others (as they do with attorneys).

The advantage to the Court of a confidential recommendation is that the parties then don't tailor their arguments to address issues the Judge may not feel is important, just because some probation officer mentioned them in a recommendation. I believe some Judges also like the confidential aspect because they won't be perceived as "rubber stamping" the probation office in those cases where they actually follow the recommendation (not necessarily by Counsel though I am sure that might happen, but by other on-lookers as well).

Posted by: USPOesq | Oct 25, 2010 2:22:59 PM

Mark --

"Government employees, whether judges, probation officers, or prosecutors, are just more comfortable with secret government proceedings than open proceedings."

Might I ask what neutral and authoritative source you would cite for that very broad conclusion? Some things must be kept secret for obvious and prepossessing reasons, sure. Some CIPA proceedings, the FISA court, and the identity of government witnesses the defendant's gang would love to assassinate, for example. But your statement casts a far wider net.

My own experience is the defense counsel is the one who wants to keep secret -- from the PO and the court -- what the client has been and is actually up to. This is the reason suppression motions are filed, and also the reason so many defense counsel are defensive and hostile when dealing with the probation office.

As I noted earlier in this thread, probation officers, like the rest of the human race, prefer to encounter an honest, forthcoming and courteous approach in the people with whom they deal. That approach tends to work better than snarling at them.

Posted by: Bill Otis | Oct 25, 2010 6:12:13 PM


My source for my assertion about government employees' love of secrecy is the same source that you have for your assertion "so many defense counsel are defensive and hostile when dealing with the probation office." It's a matter of personal experience. My assertion also has the benefit of support in our nation's history. Bad judges and bad prosecutors are the reason that we have half of the Bill of Rights. It was necessary 200 years ago, and it's necessary now.

As an additional matter, there is no logical link between suppression motions and this sentencing issue, other than government employees' persistent view that they get to keep secret what they want to keep secret, while private citizens are doing something wrong by filing suppression motions or invoking their rights under the Fifth and Sixth Amendments.

A good example of the gamesmanship that exists in our criminal law, which would be unthinkable in civil cases, is the Jenks Act. Many, if not most, prosecutors hold back statements that they are obligated to disclose until the very last minute. Congress (government employees all) passed the Jenks Act to minimize the effects of the Jenks decision, and the DoJ (again, government employees, all) has consistently held back as much information as possible until the middle of trial. Under the Rules of Civil Procedure, such gamesmanship is not allowed, yet it is business as usual for the DoJ in criminal cases, sanctioned by Congress.

The probation officer's comments above are telling. Fear of "irrelevant" arguments and a possible perception of rubber-stamping judges are notably lame reasons for defending secrecy in our adversarial system of justice. No wonder that the probation officer believes most POs would not mind disclosure. Notably, the probation officer's assertion that some novel factual statements are sometimes included in the withheld report is the best argument for subjecting these recommendations for disclosure; the officer's assertion that we can rely on judges to vet the recommendation for novel factual assertions defeats the basic premise of our adversarial system of justice. It's like relying on prosecutors to determine what evidence is exculpatory and what evidence is not under Giglio and Brady.

Put simply, the government has written rules that vindicate the government's own institutional bias. The government employees' comments above are great examples of that institutional bias. Not surprising -- and a good reminder of the necessity of the Bill of Rights.

Posted by: Mark | Oct 25, 2010 9:12:32 PM

Mark --

Actually, the source for my assertion was the second comment on this thread, by USPO, noting the hostile and uncooperative attitude of some defense counsel.

What I asked was whether you had any neutral and authoritative source for your views. You don't. They stem, you say, from your experience, and it's more than obvious that you're not neutral. Since you do not identify yourself, there's no way to tell if you're authoritative.

Lastly, the subject here is keeping under wraps facts important to the case disposition. That is exactly what defense suppression motions are designed to do.

Posted by: Bill Otis | Oct 25, 2010 10:36:43 PM

Very weak, Bill. So your source for your broad assertion is not even your own experience, but the assertion of some unknown alleged USPO on a blog.

Again, your equating suppression motions with secret sentencing recommendations shows your pro-government blindness. With suppression motions, information that is not supposed to be known by the decisionmaker (the jury) is disclosed to the parties. With secret sentencing recommendations, information that is withheld from the parties is known only by the decisionmaker (the judge). To you, it's all just 'secrecy,' and you can't see how one procedure might conflict with our adversarial system of justice while the other does not.

Secret sentencing recommendations, some of which contain factual assertions not known to the parties, are an unnecessary hindrance to an open adversarial process. Your comments and those of the probation officers above only highlight the pro-government bias in the existing rules.


Posted by: Mark Pickrell | Oct 26, 2010 11:07:24 AM

PO's like to take sides and their reports can be biase. A PO was asked to contact victim for further information, and the PO told victim she was not going to relay what she said; but instead was going to use her (PO's)opinion in the report. On several occassions the PO has misquoted or changed statements of those she interviewed. Most PO's have the best interest of their client to rehabilate, and do not know what the victim has suffered. PO's are not lawyers or judges, and they should not be involved in the sentencing; their job is to deal with what the sentence their client has gotten and not vice versa.

Posted by: D Fortin | Jan 29, 2011 3:13:12 AM

If you are really interested in cleaning up judicial and prosecutorial corruption, criminal misconduct, abuses, and cover up by government officials take a strong look at pre-trial-post trial records on Ray Dean Wolfe court records. He stood up to judicial corruption at Springfield MO and they went after him. They violated every rights and law to convict him. What I understand Ray Dean was supposed to serve only 2-3 weeks in prison due to previous 8 months imprisonment. When Ray Dean arrived at Fulton MO, the parole board, being their own judge and jury, violated MO 15% rule and extended his imprisonment to two years. MO attorney Mr. Allen looked at the trial records and submitted an amended motion to vacate, set aside or correct sentence back in July 2011 and after many complaints the same trial judge served as the appeals judge on the amended motion. The decision is overdue and Ray Dean was scheduled to leave prison on Dec 7 but Ray Dean refused to sign papers shove to him at the last minute. Prison officials refused to allow an attorney to review the document they want Ray Dean to sign and Ray Dean is still in prison. I know many more violations deliberately made against Ray Dean and the Gov (state/fed) refused to investigate. If you are interested, contact me and let work together to clean up this mess. If not, armed rebellion is not unthinkable. Oh yes, Ray Dean is in prison over a speeding ticket. I like to tell you the whole story.

Posted by: Ronald Hannon | Dec 9, 2012 2:19:47 PM

My name is Eric Wooten, so this article is about my case. The PO wasn't totally honest or neutral. She never contacted any of my friends or family, she followed the prosecutions lead and embellished. I had never been in any trouble before this. The prosecution asked for much less time than what I was sentenced to, primarily because the PO said I was uncooperative. Which was a total LIE not only did I submit everything that was asked for I submitted extra thru my pretrial probation officer who submitted it for me. But while in prison I met several inmates that had the same problem as I but it cost them 5 to 20 yrs.
My judge even said he rarely goes above the guideline but that the probation officer said I was not cooperating. Everything that was in my secret sentencing recommendation violated rule 32. Good luck people. Love your country, Be afraid of your government.

Posted by: Eric Wooten | Aug 23, 2013 10:08:55 PM

I was also curious about that. But you explained it really well. You make excellent points.

Posted by: Karen | Apr 23, 2014 9:31:42 AM

It's a recommendation, a/k/a a suggestion. Not a demand or command. It's summarizing the options that the judge has within the laws. Judges do NOT follow these RECOMMENDATIONS all of the time. As long as a sentence is within the law and guidelines (unless where the law permits a departure), the Judge can do whatever he wants.

Posted by: USPO | May 29, 2019 1:42:20 PM

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