Federal Criminal Sentencing Seminar and Transparency in Federal Sentencing

I just returned from the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. Kevin Napper, Laurel Moore Lee, and many others organized an outstanding seminar dealing with all aspects of federal criminal sentencing. It is always fun to get together with other federal practitioners and discuss how things are handled in federal jurisdictions throughout the United States.

Yesterday, we had an enjoyable panel discussion dealing with the “Presentence Report and the Sentencing Process” in federal court. We had a great group of individuals on our panel, including defense lawyers (Donna Elm and Adrienne Wisenberg), a federal prosecutor (Laurel Moore Lee), an Assistant Deputy Chief Federal Probation Officer (Ray Owens), and a sentencing mitigation specialist (Tess Lopez).

We covered a lot of ground in our discussion and part of that discussion reminded me that, in my humble opinion, at least one aspect of federal sentencing needs to change. In federal court, before most every sentencing hearing, a federal probation officer prepares a Presentence Report, also known as the PSR. Before the sentencing hearing, the PSR is disclosed to both parties. Very frequently, however, before the sentencing hearing, the federal probation officer that prepared the PSR meets with the federal judge that is conducting the sentencing hearing (in chambers) and makes a recommendation to the judge on what the ultimate sentence should be.

Importantly, unlike the PSR, the sentencing recommendation itself is not disclosed to the parties. I am not sure exactly how or why this process started, and I am not sure what purpose it really serves. In addition, during our talk yesterday, we discussed the fact that this process is not uniformly followed throughout the federal sentencing system.

For example, Tess Lopez described how the process works in the Northern District of California. There, the probation officer’s recommendation is disclosed in the PSR, so everyone knows exactly what the recommendation is well before the sentencing hearing. According to Tess, complete disclosure of the probation officer’s sentencing recommendation has existed in that federal district for quite sometime. To me, this system of transparency makes sense. I am hoping that federal judges in other jurisdictions reconsider how they handle this issue and adopt the procedure adopted by the federal judges in the Northern District of California and similar jurisdictions.