United States v. John Albert Bakewell

WISDOM, Circuit Judge

(dissenting):

The liberty of an individual and the length of that individual’s imprisonment often turn on unsupported statements in a pre-sentence report by an overworked probation officer functioning as investigator, psychologist, and psychiatrist. To my mind, the pre-sentence report is out of place in an adversary system unless the defendant is informed of the substance of the materials on which the court will rely and has an opportunity to correct error and to show mitigating circumstances. In this case where the defendant pleaded guilty, the report was the court’s only source of information on the offense for which the defendant was sentenced.

I am unimpressed with the precedential value of the short per curiam opinions cited by the majority and others that might have been cited. We have been playing “follow-the-leader” without giving consideration to the development of judicial thinking in the field of sentencing. I agree with the standards recommended in the American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures, Approved Draft § 4.4, 1968 1 and the American Law Institute, Model Penal Code § 7.07(b), 1962. For an excellent treatment of the subject, see Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 835 et seq.

. 4.4 Presentence report, disclosure; parties.

(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.
(b) This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.
(c) The resolution of any controversy as to the accuracy of the presentence report should be governed by the principles stated in sections 4.5(b), 5.3(d), 5.3(f), and 5.4(a).