Especially in felony and more serious misdemeanor cases, judges typically rely on presentence reports, prepared by probation officers, in making sentencing decisions. Probation officers usually prepare these reports during a several-week interval between the conviction and the date set for sentencing.
To prepare the report, a probation officer (or a social worker or psychologist working for the probation department) first interviews the defendant and checks the defendant’s rap sheet (criminal record). The probation officer typically talks to the victim, the arresting officer, and the defendant’s family and friends.
In addition to the information gleaned from these sources, most probation presentence reports also provide:
- the circumstances of the offense
- the defendant’s personal history, including the defendant’s criminal record, and
- a statement by the victim as to what the victim lost or how the victim suffered, sometimes called a victim impact statement.
Good defense lawyers make sure that the probation officer preparing the report hears about all the good things the defendant has done and is doing. For example, if the defendant has enrolled in an addiction treatment or counseling program or has an employer willing to say nice things about him, a defense attorney will transmit that information to the probation officer. It’s important that the defense make the presentence report appear as favorable to the defendant as possible, because the report is likely to have a significant impact on the judge’s sentencing decision.
Your Presentence Interview
Probation officers often question defendants very closely. An officer is likely to want to know a defendant’s:
- version of the criminal act giving rise to the conviction
- reason or motive for committing the crime
- prior criminal record, including juvenile record
- personal and family history
- employment history
- past and present alcohol and drug use
- financial status, and
- military record (if any).
The defendant should come to the interview prepared to talk about these topics. Whenever possible, the defendant should bring documents that provide these facts (for example, a letter from an employer or military discharge papers). The defendant also should be prepared to explain why probation or some other lenient sentence is appropriate under the circumstances.
Improving Your Presentence Report
Judges typically don’t have time to investigate the circumstances of individual cases, so they usually rely heavily on—and often rubber-stamp—sentencing recommendations in presentence reports. For this reason, it is important for the defendant to make a positive impression on the probation officer preparing the report.
The defendant should be as prepared as possible before meeting with the probation officer, because the defendant may not be allowed to bring a lawyer into that interview. Preparation is also critical because probation officers may rely, when making their recommendations, on information that would not have been permissible in court at trial, such as inadmissible hearsay and illegally obtained evidence. The defendant must be careful about what he or she says in the interview, because probation officers can use the defendant’s statements in their reports.
Getting a Fair Presentence Report
Probation officers are at least as overworked as other players in the criminal justice system. And they are as susceptible to tough-on-crime public opinion as anyone else. Thus, many use “boilerplate clauses” (prewritten clauses used in case after case) in their reports. And the probation officer may prepare a report that justifies predetermined decisions rather than weighing the merits of an individual case.
Defense lawyers, well aware of the limitations under which many probation officers work, often take a number of steps to try to ensure that a judge is aware of information favorable to the defendant. Defense lawyers can:
- research possible alternative sentences—such as placing the defendant in a treatment center or under home detention rather than a prison, or requiring extensive community service and restitution—and prepare a concrete plan to implement the desired (or least offensive yet realistic) sentence
- improve the defendant’s personal profile by enrolling the defendant in a treatment or rehabilitation program and school, helping the defendant find an appropriate job, or getting the defendant set up to perform volunteer community service
- meet with the probation officer before the defendant does to present helpful information
- prepare a written statement in mitigation of the crime stating why the defendant should receive a lighter rather than a harsher sentence, and
- seek a private presentence report. These are written by private parties—often retired probation officers—engaged in the business of writing presentence reports for an often hefty fee.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.