Wednesday, November 6, 2019

Probation officer's sentencing recommendation cannot always be confidential (in the DC Circuit)

Many judges have a policy of not disclosing the probation officer's sentencing recommendation to anyone other than the judge. But the DC Circuit has held that such a policy is impermissible. In that case, the defendant filed an unopposed motion for disclosure of the recommendation. The district court denied the motion, based on its policy of always treating the recommendation as "confidential." Federal Rule of Criminal Procedure 32(e)(3) allows a district court to “direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.” But, the DC Circuit held, this rule requires a court to "exercise discretion in deciding whether to withhold the recommendation. . . based on case-specific reasoning rather than on a uniform policy." The court vacated and remanded for resentencing.

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