United States District Court, C.D. Illinois
For Alan D Laughlin, Defendant: Daniel J Hillis, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER, Springfield, IL; Robert A Alvarado, FEDERAL PUBLIC DEFENDER, Peoria, IL; William L Vig, ACKERMAN LAW OFFICE, Springfield, IL.
For USA, Plaintiff: Bryan David Freres, Gregory K Harris, U.S. ATTY, Springfield, IL.
Richard Mills, United States District Judge.
The Defendant's Motion for Disclosure of Sentencing Recommendation is denied for the following reasons.
The Defendant's Motion raises issues related to Federal Rule of Criminal Procedure 32 and the disclosure of (1) the probation officer's sentencing recommendation, and (2) the probation officer's rationale for making such a recommendation.
In the middle of the twentieth century, probation officers prepared presentence investigation reports (PSRs), but disclosure of the PSR to the parties was limited, and varied across districts. See Fed. R. Crim. P. 32, Advisory Comm. Note (1966) (" Practice in the federal courts is mixed, with a substantial minority of judges permitting disclosure while most deny it." ).
In 1974, Federal Rule of Criminal Procedure 32 was amended, and disclosure of the PSR was made authorized, with limited exceptions, including a prohibition on releasing the probation officer's recommendation. See Fed. R. Crim. P. 32, Advisory Comm. Note (1974) (" Subdivision (c)(3)(A) requires disclosure of presentence information to the defense, exclusive of any recommendation of sentence. The court is required to disclose the report to defendant or his counsel unless the court is of the opinion that disclosure would seriously interfere with rehabilitation, compromise confidentiality, or create risk of harm to the defendant or others." ).
The U.S. Court of Appeals for the Seventh Circuit has explained that " [a]t the time of its enactment, the purpose behind [limiting the disclosure of the sentencing recommendation] was to allow probation officers the opportunity to provide a candid assessment of the defendant to the court and to protect the effectiveness of the probation officer in the supervisory context." United States v. Peterson, 711 F.3d 770, 2013 WL 1235627 (7th Cir. Mar. 28, 2013) (citing Fed. R. Crim. P. 32, Advisory Comm. Note (1974) (" Any recommendation as to sentence should not be disclosed as it may impair the effectiveness of the probation officer if the defendant is under supervision on probation or parole." )).
By the early 1980s, this exception was on the chopping block. Since the 1950s and 1960s, momentum had been gathering for a wide-ranging overhaul of federal criminal law. See U.S. Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 1-2 (June 18, 1987). Numerous groups and entities had been studying the issue, including the American Law Institute, which promulgated the Model Penal Code; the American Bar Association (ABA), which issued many studies and reports; and the National Commission on Reform of Federal Criminal Laws (Brown Commission), which was led by former Governor of California Edmund G. " Pat" Brown, Sr., and which issued its Final Report in 1971. See id.
The efforts to overhaul the federal criminal justice system were concentrated in the Committee on the Judiciary, in the
U.S. Senate, under the leadership of Sentators Edward M. Kennedy and Strom Thurmond. The Committee's efforts at comprehensive reform began in earnest in the mid-1970s.
In September of 1981, Senator Thurmond, introduced another reform bill. See Criminal Code Reform Act of 1981, S. 1630, 97th Cong. (1981). In the bill, Rule 32 was to be amended so that a probation officer's recommendation would not be confidential. See id. at § 111(r)(6) (" The Federal Rules of Criminal Procedure are amended as follows: . . . Rule 32 is amended-- . . . by deleting 'exclusive of any recommendations as to sentence' in subparagraph (c)(3)(A)" ).
On September 28, 1981, the Committee on the Judiciary held a hearing on S. 1630. Some of the testimony related to the confidentiality of a probation officer's sentencing recommendation.
The American Bar Association (ABA) was represented by Professor William Greenhalgh, Georgetown University, and George C. Freeman, Jr.  Reform of the Federal Criminal Laws: Hearing on S. 1630 Before S. Comm. on the Judiciary, 97th Cong., Part XVI 11821 (1981).
In their written statement, Professor Greenhalgh and Mr. Freeman stated the following: " S. 1630 contains a proposed amendment to Rule 32 of the federal Rules of Criminal Procedure that the fundamental recommendation as to sentence be made part of the presentence report released to the defendant. ABA supports this position." Id. at 11871.
The Judicial Conference of the United States was represented by Judge Gerald B. Tjoflat. Id. at 11911. At that time, Judge Tjoflat was the chair of the Judicial Conference's Committee on the Administration of the Probation System. Id. In his written statement, Judge Tjoflat stated the following:
Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure presently requires disclosure of the presentence report " exclusive of any recommendation of sentence." I recommend that this language be included in your bill. Disclosure of the presentence report is absolutely necessary to ensure that sentences are not based on factually inaccurate information and to allow the defendant a real opportunity to challenge the accuracy of the report. The specific recommendation of the probation officer is, however, a matter of judgment rather than fact. Disclosure of this recommendation may place the court in the position of not only explaining on the record the reasons for imposing a particular sentence, but, also the reasons for imposing a sentence other than that recommended by the probation officer. 
Id. at 11922.
Eventually, the position of the Judicial Conference and Judge Tjoflat was more
persuasive than that of the ABA, and S. 1630 was amended to reflect the position of the Judicial Conference. See S. Rep. 98-225 (1983). Although S. 1630 was reported to the full Senate in 1982, it was not enacted.
In the next Congress, a new bill, S. 1762, was introduced and reported to the full Senate in 1983. In its Report, the Committee on the Judiciary had the following to say regarding the disclosure of a probation officer's recommendation:
Subdivision (c)(3)(A) of Rule 32 has been amended by Section 205(a)(6) of the bill to assure that the information relating to the requirements of revised subdivision (c)(2) contained in the presentence report are made available to the defendant but that the probation officer's final recommendation as to sentence is not made available. This assures that the Defendant will receive information such as the probation officer's conclusions as to which guidelines apply to the defendant and whether there are aggravating or mitigating circumstances that may indicate that the sentence should be outside the guidelines, but will not receive the final sentencing recommendation of the probation officer. The latter provision represents a committee amendment in the 97th Congress to S. 1630 made at the suggestion of Judge Tjoflat who expressed concern that disclosure of the final sentencing recommendation might inhibit the probation officer in making the recommendations.
S. Rep. 98-225 (1983) (footnote omitted).
Eventually, S. 1762 was passed in early 1984, as part of the Comprehensive Crime Control Act of 1984.  The law prohibited the distribution of " any final recommendation as to sentence" to the parties. See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2014, § 215(a)(6) (1984).
In 1993, the ABA House of Delegates approved standards for sentencing. The ABA concluded that " [t]he rules should prohibit confidential sentencing recommendations." ABA Standards for Criminal Justice: ...