United States v. Kirby Frazier and Louis Neville

LUMBARD, Circuit Judge

(concurring) :

I concur, but I think something more needs to be said about when pre-sentence reports are necessary to sentencing. Rule 32 of the Federal Rules of Criminal Procedure takes note that there are circumstances where a pre-sentence report is unnecessary. Thus it provides in paragraph (c) that a pre-sentence report shall be made “unless the court otherwise directs.”

Nevertheless, Judge Weinstein should have allowed time for the preparation and consideration of a probation report in a case such as this where he felt that a substantial prison sentence would be necessary, and it was error to proceed forthwith to impose sentence over objection by the defendant Frazier.

At the same time our action here should not be construed as requiring a full-dress report prepared by a probation officer which of necessity seems to entail a delay of six to eight weeks, or more, between the conviction and the imposition of sentence. See United States v. Manuella, 478 F.2d 440, 442, note 3, decided May 2, 1973.

I share Judge Weinstein’s concern about the undue elapse of time between conviction and sentence which results almost entirely from the long time it now takes for probation officers in our busy district courts to prepare their careful detailed pre-sentence reports. The sanctions of criminal justice lose much of their force when so much time elapses between conviction and sentence; and altogether too frequently convicted felons are at large after their conviction.

Surely some discussion with' counsel can determine those subjects, if any, regarding which the court should be more fully and authoritatively informed before sentence is imposed. The court need not know the family history beyond two generations, or the whereabouts and conduct of the defendant’s siblings. Such clearly relevant matters as previous criminal record and previous employment should not require much time to verify. Thus it may be that by agreement necessary information may be ascertained and checked by means agreeable to the defendant and the Government without awaiting the laborious and attenuated report of the overworked probation officers.

If ever there were an example of penny-wise and pound-foolish withholding of public funding for the proper administration of criminal justice, it is the failure to provide adequate funds for enough probation officers. That failure not only has caused undue delays in the sentencing of convicted defendants, but also has on many occasions impelled judges to sentence defendants to jail because they felt that probation supervision would be wholly inadequate. As imprisonment costs the public ten times as much as supervision on probation,1 the failure to provide enough probation officers is difficult to understand.2

*988Thus it may well be that in certain cases the sentencing judge would be well advised to take measures to be informed of matters relevant to sentence by means other than an elaborate pre-sentence report which cannot be provided by probation officers until many weeks after conviction. It may be that such a course could have been followed here. However, as the record stands we have no alternative but to require that the court impose sentence only after consideration of a pre-sentence report.

. Year after year the Judicial Conference of the United States has called attention *988to this need, but with little success. By the time needed personnel is provided the need has increased and the delays are longer because of the increased case loads of the probation officers.