03. Presentence Report
"When you're scared, you stay as you are!"
- Stephen Richards, Author, Film Director & Producer
A U.S. Probation Officer prepares all sections of the Presentence Report (PSR), including the tentative advisory guideline range. That range, based off of the Federal Sentencing Guidelines, recommends a term of imprisonment, probation, or both. That recommendation is based on all the information both the defense and the prosecution have submitted during the PSI phase. The report is meant to have enough information to assist the court in making a fair sentencing decision and to assist corrections and community corrections officials in managing offenders under their supervision.
The PSR will follow defendants through their contact with the federal criminal justice system. Many decisions are made based on the sentence imposed. These range from the security level of the prison to the program needs of the defendant. The PSR is designed to provide the Judge with a complete and concise picture of the defendant, the crime and a recommendation for a sentence to be imposed.
Once the first draft of the report is completed, both opposing parties will have a chance to review and make note of any objections or omissions made in the report. Those corrections usually have to be submitted back to probation within 10-14 days. If you miss entering a correction and you later want to revise or correct it, you will have to submit an addendum. An addendum means that the incorrect information remains in the report and the only way for someone to see the “correction” is to read the addendum. Think of it as the same way a newspaper prints the retraction to an earlier mistake in an article. While it corrects the error, it may not reduce the damage it already caused the harmed party. So, the person reading your PSR (particularly BOP officials) will have been prejudiced by what they read in the original report. It is important to get all the information right in the final PSR.
Probation Officers are open to receiving information from all parties, but are cautious about adopting any party’s interpretation outright. If you have information that you believe needs to be corrected or included, you need to ask for it.
Attorneys for opposing sides usually contest the accuracy of facts contained in the PSR or the application of the guidelines to those facts, especially in the initial draft. There is no set number of revisions that a Probation Officer will make to the report, but time is limited and they must eventually produce a report to the court. If there is still no agreement on the report’s contents, these can be taken up a separate hearing (Fatico Hearing) prior to sentencing. If there is no need for a Fatico Hearing, any remaining items of disagreement will be settled by the judge at sentencing. In many cases, disagreements are over things like restitution amount, the calculation of points (enhancements) under the Federal Sentencing Guidelines, and the role of the defendant in the crime. Those issues are best handled by your attorney with your assistance, but the accuracy of the personal information you provide should not be in question by the time you walk into the courtroom for sentencing.
While it may seem like the Probation Officer is on the side of the prosecutors, the judge views her, and the subsequent report she generates, as an unbiased view of the case and the defendant being sentenced. In fact, the court generally views a Probation Officer’s objectivity and professionalism during the presentence and sentencing phases as a positive influence on the defendants perception of being treated fairly by the justice system. While experiences vary from case to case, the Probation Officer is just doing her job and you, by giving your input, are doing yours by providing accurate and timely information.
In addition to the information you provided to Probation, this may be the first time you see the final government’s version of the criminal offense that will be presented for your sentencing. It may contain statements made by coconspirators involved in the crime or victims who placed more emphasis on your role. The point is to be prepared to read this information.