Eliminating the Adversarial Role of the Probation Office

Abstract

Seven years of sentencing guidelines has crystallized a fundamental defect in the implementa tion of the system: the role of the probation office has become both adversarial and judicial on discretionary decisions. Every day in federal courthouses the appearance of justice is undermined by probation office advocacy against downward departures or for high sentences within the guideline range. Criminal defendants, many of whom are suspicious of the system's fairness, view the deck as stacked against them when the judge's agent recommends an adverse outcome prior to the sentencing hearing. This defect in the structure of the guidelines should be moder ated by eliminating probation office recommenda tions on traditionally judicial sentencing decisions.1 Due process at sentencing is premised on the adversary system. The two parties ? the govern ment and the defendant ? present their best argu ments on aggravation and mitigation; then the neutral judicial officer decides the facts and weighs the sentencing factors in imposing the final sentence. The adversary system's virtues are diminished when a European-type civil law model is superimposed. Judicial officers who investigate facts and act as both prosecutor and judge are an anomaly in the adver sary system. This role is neither compelled by the Sentencing Reform Act nor consonant with due process.