HARVARD LAW SCHOOL

C AMBRIDGE · M ASSACHUSETTS · 02138

LANGDELL 328
HON. NANCY GERTNER TEL: 617-496-4099
Senior Lecturer of Law FAX: 617-496-4863
United States District Court (Ret.) E-MAIL: ngertner@law.harvard.edu

Chairman Dick Durbin and Ranking Member Chuck Grassley

United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
March 28, 2022

Dear Senators Durbin and Grassley,

We write to address the demand some members of the Senate Committee on the
Judiciary have made for the release of Pre-Sentence Reports (“PSR”) relating to
defendants sentenced by Judge Ketanji Brown Jackson for the crime of possession
of images of child pornography. We have all served as United States District
Judges and each of us has imposed hundreds of sentences, collectively having
imposed thousands of sentences. For the reasons set forth below, we urge that this
request be rejected.

Every PSR is prepared by the United States Probation Department. Each

defendant is interviewed (with counsel present) and the Probation Officer begins
every interview by assuring the defendant that the report is confidential and will be
available only to the sentencing judge for the purpose of providing relevant
information to the judge to aid him or her in imposing a fair sentence. Highly
sensitive information is provided including medical information, financial
information, criminal history, family relationships, and employment and
educational background. If the defendant has cooperated with the Government by
providing information as to other defendants, and perhaps agreeing to testify if
needed, that information is also noted in the PSR. Family members, neighbors,
doctors, colleagues, and victims are all also promised confidentiality.

The PSR is never filed on the public docket. If the sentence is appealed to a higher
court, the PSR is not made a part of the record but is made available to the
appellate judges in a sealed envelope. The PSR is available only to the Federal
Bureau of Investigation and the Bureau of Prisons for the sole purpose of aiding in
ongoing investigations specifically related to terrorist activity, for the safe
placement of the defendant while incarcerated, and for possible deportation
proceedings. These are the only authorized uses of the PSR.
Senators Durbin and Grassley
March 28, 2022
Page Two

It would be completely inappropriate to release a PSR for any other purpose.

Certain information, such as medical information, cannot be released pursuant to
HIPAA – the Health Insurance Portability and Accountability Act. Other
information could endanger a defendant and his family, such as cooperation with
the government. Release of social security numbers, addresses, and financial
information is considered to be personally protected information (PPI) which could
target the defendant for abuse or retaliation.

In sum, we oppose the request for the release of PSRs. Defendants and their
families are entitled to the protection guaranteed to them by the United States
Probation Department and the United States judiciary. As we noted in a previous
letter, submitted on March 21, 2022, Judge Jackson’s sentencing record is entirely
consistent with the record of other district court judges across the country. There is
no need to violate the long-standing rule that PSRs can never be publicly released.

We hope that our views on this important issue will be of assistance to you and
your committee.
Sincerely,

Judge Nancy Gertner (Ret.), U.S. District Court D. Mass

Judge Faith Hochberg (Ret.), U.S. District Court D. N.J.

Judge Mark Bennett (Ret.), U.S.District Court N.D. Iowa

Judge Shira Scheindlin (Ret.) U.S.District Court S.D. N.Y.

Judge Howard Matz (Ret.), U.S. District Court, Central District Cal.

Judge Richard Holwell (Ret.), U.S.District Court, S.D. N.Y.

Judge John Martin (Ret.), U.S. District Court S.D. N.Y.

Judge Carol Jackson (Ret.), U.S. District Court, E.D. Mo.

Judge Beverly Martin (Ret.), Eleventh Circuit Court of Appeals

Judge Thomas Vanaskie (Ret.) Third Circuit Court of Appeals