Probation and Parole: Theory and Practice CHAPTER Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services, Sentencing, and the Presentence Report 3

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services Eighth Amendment prohibits excessive bail, but fails to define excessive Pretrial release (PTR)  effort to reduce jail overcrowding PTR programs frequently use prediction scales  determine the risk posed by a defendant failing to return to court or being arrested for a new crime

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services Some pretrial release programs provide for supervision Pretrial diversion programs aim to remove the defendant from the criminal justice system without the need for prosecution

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services U. S. Pretrial Services Officers provide two important services to the court: 1.Investigation 2.Supervision

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services 1.Conduct pretrial services investigation  Interview the defendant and confirm information through other sources  Determine if defendant is likely to appear in court  Establish what conditions the court imposes to guarantee the appearance  Prepare report for court

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Services 2.Supervision  Monitor offenders in the community to make sure they comply with court- ordered conditions of release until a.they begin to serve their sentence b.the charges are dismissed c.they are acquitted

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Presentence Report Presentence investigation report (PSI) based on investigation before sentencing After conviction, but before sentencing may be ordered by judge Completed by probation officer Traditionally has reflected a positivist view

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Requiring a PSI Report Presentence Investigation (PSI)  Required in some states for crimes punishable by more than one year of imprisonment  In other states, judges have the discretion to order a PSI  Conducted after conviction before sentencing  Traditionally reflected positivistic approach to the offender

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Purposes of PSI Four basic purposes of the PSI 1.Primary purpose help the court make the appropriate sentencing decision 2.Serves as the basis for a plan of probation or parole supervision and treatment -indicates problem areas of defendant’s life

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Purposes of PSI Four basic purposes of the PSI 3.Assists jail and prison personnel in their classification and treatment programs in planning for the care, custody, and rehabilitation the offender in giving focus and direction to personnel 4.Provides parole authorities with information pertinent to release planning and consideration for parole

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Purposes of PSI A recently added dimension to the PSI is the financial condition of the defendant 1984 Criminal Fine Enforcement Act & 1987 Criminal Fines Improvement Act  cite need to determine the defendant’s ability to pay fines, restitution, probation fees

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Purposes of PSI Some states include a separate victim impact statement (VIS):  description of financial, social, and psychological harm and the physical consequences of the crime  may include a statement concerning the victim’s feelings about the crime, the offender, and the proposed sentence

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Content of a PSI The PSI is not expected to show guilt or innocence. Information includes: 1.Legal data – arresting officer, victim, original charges filed, and a summary of court action 2.Defendant statement – defendant’s version of the offense 3.Codefendants 4.Victim statement

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Content of a PSI The PSI is not expected to show guilt or innocence. Information includes: 5.Prior record – any prior juvenile and/or adult criminal record 6.Probation/Parole – prior performance on probation, parole 7.Education and employment 8.Military service

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Content of a PSI The PSI is not expected to show guilt or innocence. Information includes: 9.Social history – family relationships, marital status, residence history, religious affiliations 10.Medical and mental status – medical history 11.Environments – environments to which the offender might return

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Content of a PSI The PSI is not expected to show guilt or innocence. Information includes: 12.Community resources – to assist the offender 13.Summary and analysis – most significant aspects of report 14.Recommendation

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Gathering Info for a PSI Most information in PSI is from interviews with:  Defendant  Arresting officers  Victim  Employers  Collateral persons, such as family members, teachers, clergy

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Interviews Interviews should be conducted in  Quiet, comfortable setting with maximum privacy  A professional manner When all other interviews completed, re-interview defendant to refute any information or clarify any conflicting aspect of the report

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Records and Reports Review of records and reports Second greatest source of information in a PSI Criminal record of defendant Medical, psychiatric, or psychological reports Conflicting information should be reconciled or difficulty pointed out in report

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Records and Reports PSI may also include a recommended sentence  Weigh potential danger to the community  Evaluate the defendant’s rehabilitative potential  Assess ability to conform to probation regulations

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Short- and Long-Form PSI Two basic types of PSI 1.Short-form Usually done in misdemeanor or less serious felony cases Usually less exhaustive and less time consuming 2.Long-form

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Sentencing Guidelines and Mandatory Sentences By 1994, every state had mandatory sentencing laws About 20 states and the federal government use sentencing guidelines to:  Limit judicial discretion  Reduce sentencing disparity

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Sentencing Guidelines and Mandatory Sentences Federal Sentencing Reform Act of 1984  designed to reduce sentence disparity and phase out parole release by 1992 Mistretta v.United States (1989)  SC ruled that the sentencing guidelines were constitutional The Reform Act caused changes in the content and format of the PSI

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Plea Bargaining and Pre-Plea Investigation Plea Bargaining  an exchange between a defendant who agrees to plead guilty to a criminal charge and a prosecutor who offers leniency in return Nearly 90% of all federal criminal cases are resolved by guilty plea Use of plea bargaining has reduced the need for a PSI

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Plea Bargaining and Pre-Plea Investigation Use of plea bargaining has increased the need for pretrial/plea investigation reports The use of the pre-plea investigation (PPI) reports require the defendant to agree to the investigation

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Confidentiality of the PSI Basic argument against disclosure of information on PSI is that the sources of information must be protected Basic argument in favor of disclosure is to enable the defendant to contest any information considered unfair or unfounded

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Confidentiality of the PSI ABA recommends disclosure of information that adversely affects the defendant Other commissions agree that information should be disclosed The United States Supreme Court has upheld the confidentiality of the PSI Williams v. New York (1949)

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Confidentiality of the PSI In the federal system, since 1983, the contents of the PSI have been disclosed to the defendant Some states allow the defendant to access the report Others give the judge the option of disclosing the contents of the report

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Criticisms of the PS Report Types of inaccurate or misleading information found in the PSI of one state 1.Rumors and suspicions without factual explanations 2.Incomplete explanations of events that leave a misleading impression 3.Factual errors usually related to record

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Criticisms of the PS Report To improve the reliability of the report, the Massachusetts commissioner of probation provides the following standards: 1.The PO should identify the sources of information in the report 2.The PO should make personal contact with the informants or sources of information

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Criticisms of the PS Report To improve the reliability of the report, the Massachusetts commissioner of probation provides the following standards: 3.The PO should obtain pertinent documentation when practicable 4.Sources of information should be identified in most instances

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Key Terms Presentence investigation (PSI) report Victim impact statement (VIS) Prediction scale Short-form PSI Long-form PSI Sentencing guidelines Plea bargain

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Key Terms Mandatory sentencing Pretrial release Preplea investigation