United States Court of Appeals For the Seventh Circuit
Sentencing — confidential sentencing recommendations — due process
Confidential sentencing recommendations from the probation officer do not violate due process.
“By ensuring that Peterson received and reviewed all of the facts referenced in the probation officer’s sentencing recommendation, the district court gave Peterson all the process he was due, and we therefore find no Fifth Amendment violation or plain error. The policy question nevertheless remains whether disclosure of a probation officer’s sentencing recommendation is desirable even if not constitutionally compelled. A blanket rule against disclosure of a probation officer’s sentencing recommendation, though explicitly endorsed by several of the district courts in this circuit, is far from universal. Many district courts favor releasing the sentencing recommendation to the parties and others leave disclosure to the district judge’s discretion. See, e.g., E.D. Cal., L.R. 460(c) (‘A copy of the probation officer’s proposed presentence report, including the probation officer’s recommendations, shall be made available to the United States Attorney’s Office and to defense counsel not less than thirty-five (35) days before the date set for sentencing hearing.’); S.D. Ohio Crim. R. 32.1(f) (‘[U]nless otherwise ordered in an individual case, the Probation Officer’s recommendation, if any, on the appropriate sentence shall be disclosed in all copies of the initial and final presentence report including those furnished to counsel.’); W.D.Mich LCrR 32.2(b) (‘The sentencing judge may . . . direct the probation officer not to disclose the officer’s recommendation on the sentence.’). The American Bar Association Criminal Justice Section has adopted a standard providing that all rules of procedure ‘should prohibit confidential sentencing recommendations.’ ABA Crim. Justice Section: Sentencing, Standard 18-5.7, 3d ed. (1993).”
Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Flaum, J.