M E M O
TO:Joint Procedure Committee
RE:Rule 32, N.D.R.Crim.P.; Sentence and Judgment
The Supreme Court amended Rule 32 effective October 31, 2001, pursuant to an emergency request by the Attorney General. See Order of Adoption dated October 31, 2001. The Attorney General sought the amendment, which gives the Attorney General access to presentence investigation reports, so that the Attorney General would have access to information usable in assigning risk designations to sexual offenders. See Petition, dated October 30, 2001. The Attorney General is required to make sexual offender risk designations pursuant to N.D.C.C. § 12.1-32-15, which took effect August 1, 2001.
The committee has discussed Rule 32 at length in the past. Much of the committee's discussions centered on confidentiality of the presentence investigation report. See Joint Procedure Committee Minutes of April 25, 1996, at 18; September 26-27, 1996, at 6-7; January 30, 1997, at 4-5; September 25-26, 1997, at 5; January 29-30, 1998, at 10-11. Ultimately, the committee decided to incorporate broad confidentiality provisions to protect the contents of the presentence investigation report.
The committee may wish to consider whether the Supreme Court's emergency amendments reflect the committee's concerns regarding the confidentiality of the presentence investigation report. One factor that may be significant is that N.D.C.C. § 12.1-32-15(15) requires the Attorney General to make sexual offender risk designations only in cases involving sexual offenses. Therefore, the Attorney General's access to the reports should not extend to all presentence investigation reports but only to a specific category of presentence investigation reports.
Reference is made in the proposed amendments to Rule 32(4)(A) to federal statutes and regulations regarding participation in federally assisted drug and alcohol treatment programs. This reference was included in the explanatory note of the amended Rule 32 as approved by the Supreme Court. Federal law severely restricts access to information regarding anyone's participation in a substance abuse treatment program. See 42 U.S.C. 290dd-2; 42 C.F.R. Part 2. In cases not involving medical emergencies, information about an identifiable individual's participation in such a program cannot be released unless the person consents or the party seeking release obtains a court order. 42 U.S.C. 290dd-2(b). These restrictions are broad, and would seem to restrict inclusion of substance abuse treatment information in a presentence investigation report in the first place. The language in Rule 32(4)(A) emphasizes the applicability of the federal restrictions when a presentence report is released to the Attorney General.
In addition to the Supreme Court's amendments, staff has made additional proposed amendments to Rule 32 that generally track the form and style of the federal Guidelines for Drafting and Editing Court Rules. The language and organization of the rule are amended to make the rule more easily understood and to make style and terminology consistent throughout the rules. The proposed additional form amendments are intended to be stylistic only.