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What Can I Learn from Problematic Presentence Investigation Reports?
In the previous chapter we discussed the structure of PSR reports and how a Statement of Reasons can help some people overcome problematic PSRs. Probation officers prepare the PSR specifically for the sentencing judge. But the PSR follows the person all the way through the journey.
In fact, our team would argue that the PSR has a bigger influence after the sentence is imposed. After all, a judge likely knows a great deal about the case. If a defendant engineered an effective sentence-mitigation strategy, as we described in chapter six of this program, the judge will also know a great deal about the person and the influences that led him into the problem. Further, an attorney will likely be there to advocate on the person’s behalf.
After the judge imposes the sentence, on the other hand, the defendant will not have an attorney. He will need to advocate on his own behalf. And the PSR will be an essential tool. If the person worked intelligently by engineering an effective sentence-mitigation strategy, he may succeed in getting a more favorable journey through prison. On the other hand, if the PSR is inaccurate, the person may have a harder time overcoming hurdles in prison—when a defense attorney will not be available to help.
For these reasons, we encourage people to review the PSR carefully. Again, this is a critical responsibility. Some factors the offender must especially be concerned about include whether the PSR inaccurately reflects that the offender was a “leader” in the criminal offense.
Any reference to the word “leader” or “organizer” may result in the offender being treated more severely by prison administrators. If the PSR suggests or identifies the offender as being a leader, and the offender believes such an accusation to be inappropriate, then it is in his best interest to address this problem. Impress upon the attorney to work to correct the inaccuracy in the PSR.
Rather than ordering the probation officer to amend the PSR, the judge may correct the inaccuracy on the Statement of Reasons. Prison officials cannot ignore the Statement of Reasons. And a person in prison may be able to rely upon the statement to clear matters up through administrative remedy—which we describe in a later chapter.
Drug offenders should review the quantity of drugs the PSR attributes to them. Frequently, people played relatively minor roles in drug distribution networks, but the PSR may insinuate greater responsibility. If it suggests that the offender was responsible for all the drugs involved in a large conspiracy, prison officials may take the conservative approach and classify him more harshly.
If the PSR suggests a person is responsible for large quantities of drugs, he may be sent to a higher-security prison. He may be ineligible for camp placement. When it comes time for halfway house or home confinement, administrators may deny him. For these reasons, people should do their best to get a PSR that accurately reflects culpability. And if the probation officer will not make the adjustment, the prisoner should work with counsel to get specific language in the Statement of Reasons at sentencing.
Violence in PSR:
Besides leadership roles and high drug quantities, we’ve seen other significant problems with inaccurate PSR reports. For example, if the PSR alludes to violence, use of weapons, or ties to organized crime, prison officials will classify the person more harshly.
We’ve heard of attorneys that mislead their clients. They diminish the relevance of the PSR, saying the judge already knows what he is going to do. Such advice may reflect the attorney’s eagerness to conclude his representation in the case and move on to new matters. A judge may have an idea of the sentence that he is going to impose, but the PSR has more lasting ramifications on a person going to prison.
An inaccurate PSR report may result in a prisoner serving his sentence in a harsher environment and it may deprive him of access to special programs. Some offenders serve more time in prison than necessary because of inaccurate PSR reports. Once the report is submitted to the BOP, making an amendment to it is—for all practical purposes—unlikely.
Influence the Process:
The best time to influence possibilities for an accurate PSR is before the investigation takes place. In chapter six, we discussed the importance of engineering a sentence-mitigation plan. A best-case scenario would be to present the probation officer with a well-thought-out sentencing narrative (that counsel has approved) during the investigation.
When the probation officer asks the offender what he has to say about his role in the office, the offender may respond:
I knew that I was going to be nervous when I got here. For that reason, I’ve taken the time to write out a document. Please review this document and incorporate as much as possible into your report. I’ll be submitting it, through counsel, to my judge at sentencing.
We’ve seen probation officers cut-and-paste entire portions of the defendant’s statement into the PSR. Provide the probation officer with a written copy, and perhaps a digital version as well. Make it as easy as possible. By influencing the PSR, the person advances possibilities to advocate for himself while he is inside the BOP.
On the other hand, if the person receives an inaccurate report, ask counsel to work earnestly to correct inaccuracies as early as possible. If the probation officer refuses to amend the PSR, then the next best time to object is at sentencing. The offender should request the sentencing judge to order the necessary corrections. If that opportunity passes, the offender may be stuck with the inaccuracies for the duration of his sentence.
As discussed previously, all is not lost, so long as the judge agrees to clarify judicial findings in the Statement of Reasons. The BOP will consider those judicial remarks if they differ from the PSR.
Offenders who do not take the time to understand the significance of the PSR frequently encounter problems that could have been avoided. Even if errors were made in the initial draft, the offender must not underestimate the importance of having all errors corrected and ensuring that the court orders the erroneous report destroyed.
People that have more financial resources might consider hiring a post-conviction or sentencing specialist. Get advice on all issues regarding PSR reports. Sometimes, it makes sense to hire a retired probation officer, or sentencing expert, to draft a mock report. The defense attorneys may submit the report, along with the expert’s credentials, for the judge to consider. A person should make every possible effort to ensure that he is portrayed accurately and in a favorable way, not only for the sentencing judge, but also for prison authorities.
Raymond, an offender who was convicted of conspiracy to distribute cocaine, played a minor role in his offense. He allowed others to use his telephone to facilitate their drug transactions. Raymond was not privy to the quantity of drugs being sold, nor to the number of transactions that took place over his telephone line. Yet the PSR report indicated over 20 kilograms of cocaine were sold and that all conspirators, including, Raymond, were equally culpable.
The sentencing judge had listened to all the testimony at trial. He knew that Raymond was a minor player in the conspiracy. He found Raymond less culpable than the others and gave him a downward departure from the sentencing guidelines because of his minor role.
The judge did not, however, order an amendment of the PSR. As a result, case managers in the BOP used the PSR to classify him. As a result of the inaccuracy, they deemed him a “serious offender,” meaning he could not get camp placement. Raymond tried to get the judge to amend the PSR several times while he served the term. But the judge ruled the matter moot because Raymond received the downward departure at sentencing, and he refused to make any further adjustments.
Neither Raymond nor his attorney appreciated the significance of his PSR prior to sentencing. At sentencing, the attorney persuaded the judge that the PSR inaccurately portrayed Raymond as an equal participant in the conspiracy. Yet he didn’t attempt to change the PSR itself. Accordingly, Raymond was sentenced appropriately, but he served his term in more severe conditions than other similarly situated offenders because his PSR was inaccurate.
Raymond showed his case manager the sentencing transcripts. The judge clearly ruled that Raymond was less culpable than the others and sentenced him accordingly. The case manager, however, said the PSR governed all classification decisions.
Again, this is a situation where the judge could have clarified Raymond’s culpability in the Statement of Reasons. Since he did not have that clarity, he served a harsher sentence.
Carlos owned a small chain of retail stores in New Jersey. He was convicted of tax evasion and sentenced to serve four years in prison. When interviewed during the presentence investigation, the probation officer asked Carlos whether he had any problems with substance abuse. Thinking that admitting to any form of substance abuse would result in an unfavorable impression, Carlos told the probation officer that he did not abuse drugs.
In fact, Carlos smoked marijuana occasionally for fifteen years. He drank alcohol regularly, sometimes until he blacked out. Had he admitted this substance abuse to the probation officer, his PSR would have reflected Carlos’ experience with controlled substances, including alcohol. Instead, the PSR stated what Carlos indicated during the investigation: no history of substance abuse.
When Carlos began serving his sentence, he learned about the drug treatment programs. He also learned that nonviolent offenders who completed the 500-hour program successfully could get out of prison earlier. Carlos wanted to apply for the program. He approached the psychologist who administered the drug treatment program for an interview.
When the psychologist read Carlos’ PSR, she noted no indication of substance abuse. She told Carlos that he would not be eligible for any time off his sentence because there wasn’t any prior history of substance abuse. Carlos explained that he had used marijuana for 15 years. He didn’t admit his drug use to the probation officer, he said, because he didn’t want to make a bad impression.
The psychologist expressed sympathy. Yet without documentation of prior substance abuse, he didn’t qualify for the program. She told him that she needed some type of documentation before she could admit him. As a result of his not preparing in advance of his meeting with the probation officer, Carlos had a harder time.
Randall is a 64-year old medical doctor. For the past 30 years he operated a cardiology practice. Randall was sentenced to serve 36-months for violating the laws pertaining to health care. Randall’s PSR confirmed that he held an undergraduate degree from Columbia University and a medical degree from Cornell. It did not verify that he graduated from high school.
During his first week in prison, administrators ordered Randall to the education department. The teacher told Randall that he had to participate in a GED class. Randall said such a request was silly, as he has practiced as a physician for over 30 years. The BOP staff member said, “That doesn’t mean anything. A lot of people have advanced degrees but don’t have a GED. We require all our prisoners who lack a high school diploma to participate in the GED program.”
Randall thought the order absurd and told the teacher that he would show her his PSR, which verified his educational credentials. The teacher said she was not interested in reading about those credentials. Since the report did not indicate that Randall had a GED, the teacher was requiring him to participate in the class. Randall refused and was promptly taken to segregation for refusing an order. He also was sanctioned with loss of commissary.
To avoid the type of problems that make confinement more difficult, do everything possible to get an accurate PSR. Raymond, Carlos, Randall, Rich, and many other federal prisoners struggle through harsher conditions because they didn’t fully understand the importance of a PSR.
To get a more complete understanding of the PSR, it may make sense to read Rule 32 of the Federal Rules of Criminal Procedure (or the equivalent rule in a state system) to grasp the intended purpose of the presentence investigation.