Chapter 4 Sentencing and the Presentence Investigation Report: Background, Preparation, and Functions

Introduction Decisions by judges about the types of sentences to be imposed are not always clear-cut Sentencing is not as easy as it appears at first glance Sentencing is a major concern for those who propose justice reforms In most major felony cases and in some minor misdemeanor cases, judges request probation officers to prepare reports about convicted offenders who are to be sentenced These reports are called pre-sentence investigation reports, or PSIs

The Sentencing Process: Types of Sentencing Systems Functions of sentencing The sentencing reform act of 1984 restated a number of sentencing objectives that have guided sentencing judges in their leniency or harshness toward convicted defendants Some of the more important functions are: To promote respect for the law To reflect the seriousness of the offense To provide just punishment for the offense To deter the defendant from future crime To protect the public from the convicted offender To provide the convicted offender with educational/vocational training or other rehabilitative assistance

The Sentencing Process: Types of Sentencing Systems Indeterminate sentencing The most frequently used for many years Occurs when the court sets either explicit or implicit upper and lower limits on the time to be served by the offender Release date is then determined by the parole board Good behavior is rewarded by early release whereas bad behavior may result in serving the entire sentence

The Sentencing Process: Types of Sentencing Systems Determinate sentencing Fixed term of incarceration that must be served in full, less any good-time credit earned in prison Good-time credit is a reduction in the amount of time served amounting to a certain number of days per month for each month served In 2005, 26 states used determinate sentencing 3 types of good time credit Statutory good time Earned good time Meritorious good time

The Sentencing Process: Types of Sentencing Systems Presumptive sentencing Also referred to as guidelines-based sentencing which is a specific sentence, usually expressed as a range of months, for each and every offense or offense class These sentences must be imposed in all but exceptional cases where there are aggravating or mitigating circumstances The U.S. Sentencing Guidelines Grid is an example of presumptive sentencing Usually these grids have the current offense on the vertical axis and the prior criminal record on the horizontal axis, the point where these two intersect is the sentencing range

The Sentencing Process: Types of Sentencing Systems Mandatory sentencing Imposition of an incarcerative sentence of a specified length for certain crimes or certain categories of crimes There are mandatory penalties federally for weapons offenses and for certain weights of narcotics Critics, however, question the deterrent effect of these laws since attorneys and judges find numerous ways to circumvent them for their own purposes

The Sentencing Process: Sentencing Issues Probation or incarceration Should offenders be placed on probation or in jail or prison? This is often the difficult judicial decision The just-deserts philosophy is a dominant theme in American corrections today Judges interests seem to be to impose sentences that are equated with the seriousness of the conviction offense

The Sentencing Process: Sentencing Issues Jail and prison overcrowding Jail and prison overcrowding conditions influence judicial discretion in sentencing offenders Judges have many sentencing options; incarceration, or a non-jail/prison penalty such as fines, probation, community service, restitution, halfway houses, treatment, or some other combination of these It is the broad discretion of the courtroom actors that is the reason for the pressing overcrowding problem facing the criminal justice system today

The Sentencing Process: Sentencing Issues The ineffectiveness of rehabilitation The failure of incarceration to rehabilitate large numbers of offenders is a problem It is generally acknowledged that jail and prison do not rehabilitate Although most jails and prisons have programs, the effectiveness of them is questionable Understaffing is a problem which stems from lack of funding for programs One reason rehabilitation is not effective in jails and prisons is because they are chronically overcrowded

The Role of Probation Officers in Sentencing Probation officers are closely connected with the sentencing process POs prepare pre-sentence investigation reports POs classify and categorize offenders POs recommend sentences for convicted offenders POs work closely with courts to determine the best supervisory arrangement for probationer-clients POs are a resource for information about any extralegal factors that might impact the client either positively or adversely on the sentencing decision

Pre-Sentence Investigation (PSI) Reports: Interstate Variations No standard PSI format exists among states Most PSIs contain similar information Provides background information on the convicted offender, including name, age, present address, occupation, potential for employment, crimes involved, relevant family data, evidence of prior record, and any other relevant data Written summaries of information obtained by the probation officer through interviews with the defendant and an investigation Narrative summaries of an offender’s criminal and non- criminal history to aid the judge in determining the most appropriate sentence

Pre-Sentence Investigation (PSI) Reports: Interstate Variations The Administrative Office of the United States Courts uses standardized PSIs These include five core categories that must be addressed in the body of the report The offense, including the prosecutor’s version, the defendant’s version, statements of witnesses, codefendant information, and a victim impact statement Prior record, including juvenile adjudications and adult offenses Personal and family data, including parents and siblings, marital status, education, health, physical and mental condition, and financial status Evaluation, including the probation officer’s assessment, parole guideline data, sentencing data, and any special sentencing provisions Recommendation, including the rationale for the recommendation

The Confidentiality of PSI Reports The general public is excluded from seeing the contents of a PSI report It is imperative that the confidentiality be maintained concerning these reports They often contain the results of tests or examinations, psychiatric, or otherwise Only those court officials and others working closely on a particular case have a right to see it The federal government requires disclosure of the contents of PSIs to convicted offenders, their attorneys, and to attorneys for the government at least 10 days prior to sentencing

The Preparation of PSI Reports Most PSIs are prepared by probation officers In about half of the states, PSI report preparation is mandatory for all felony offense convictions Other factors may prompt a report like when incarceration of a year or more is possible, when the offender is under 21 or 18 years of age, and if the defendant is a first offender When probation is not a consideration, a PSI report is sometimes optional or at the discretion of the judge Finally, PSI reports may be wholly discretionary to the presiding judge

Functions and Uses of PSI Reports At least five important functions of PSIs include Aid the court in determining appropriate sentence Aid the probation officers in supervisory efforts Assist the Federal Bureau of Prisons or any state facility in classification of offenders Furnish the U.S. Parole Commission with information pertinent to a parole decision Serve as a source of information for research

Functions and Uses of PSI Reports Criticisms of PSI report information PSIs are inherently subjective POs report both factual information as well as personal impressions about offenders Sometimes POs over predict an offender’s antisocial behavior while at other times they make recommendations for leniency to offenders who pose a risk A reasonable expectation is that POs possess some understanding of human nature Often they rely on personal feelings and impressions and therefore it is hard to avoid bias and subjectivity

Functions and Uses of PSI Reports The defendant’s sentencing memorandum The Administrative Office of the U.S. Courts has recommended the inclusion of the offender’s version of the offense These statements should be prepared with the assistance of the defense counsel These often contain mitigating information While these are not required by law, the offenders acceptance of responsibility weighs heavily in affecting the sentence the judge imposes

The Sentencing Hearing Hearing for both prosecutors and defense counsel to Respond to the PSI Offenders and their attorneys can comment and make amendments to the PSI Role of defense attorney is crucial here because they can negotiate with the PO about the factualness of the information Judges consider both mitigating and aggravating circumstances surrounding the offense

The Sentencing Hearing Aggravating Circumstances Whether the crime involved death or serious bodily injury Whether the crime was committed while the offender was on bail Whether the offender was on probation, or parole Whether the offender is a recidivist Whether the offender was a leader in the commission of the offense Whether the offense involved more than one victim Whether the offender treated the victim with extreme cruelty Whether the offender used a dangerous weapon during the commission of the crime

The Sentencing Hearing Mitigating circumstances The offender did not cause serious bodily injury The offender acted under duress or extreme provocation The offender’s conduct was possibly justified under the circumstance The offender was suffering from mental incapacitation The offender cooperated with authorities in apprehending other participants The offender committed the crime through motivation to provide necessities for him- or herself and his or her family The offender did not have a previous criminal record