Description

In most jurisdictions, statutes or court rules authorize – and in some jurisdictions they require – a presentence investigation following conviction of some or all offenders. The investigation is ordered by the judge either on the court’s own initiative or upon application of either party after a verdict or finding of guilt or a plea of guilty. It is performed by an agency of the court, usually the probation department. Probation officers, ordinarily professionally trained in social work, interview the defendant and the defendant’s family, neighbors, employers, teachers, and minister. They collect the defendant’s previous court, juvenile court, prison, school, hospital, and military records, and sometimes they have the defendant examined by a psychologist or a psychiatrist or both. They may also interview the complainant or victim of the crime, his or her family, and the investigating and arresting officers. The probation officer in charge of the case then prepares a presentence report to the court (often called a presentence investigation report or PSI) narrating in detail the defendant’s family history (including childhood matters), school history, medical history, work history, military record, criminal record, circumstances surrounding the present offense (generally with an exploration of the events that led up to it, including any unusual pressures on the defendant, extenuating circumstances, aggravating circumstances, and so forth; and sometimes with an indication of the defendant’s present attitude toward the offense), home and neighborhood environment, family attitudes, financial status, present employment situation or prospects, prognosis with respect to any medical or psychiatric problems, and other matters that the probation officer thinks (or has learned from experience with the court that the court thinks) relevant to sentence, which may include the defendant’s religious attitudes. The probation officer’s report usually contains a sentencing recommendation, with supporting reasoning. In jurisdictions that employ determinate sentencing systems (see § 48.12 infra), the report will identify and apply the factors relevant to the guidelines formula, compute the sentence or sentencing range that the formula produces, and identify potential grounds for upward or downward departures. See, e.g., FED. RULE CRIM. PRO. 32(d)(1). If the presentence report recommends probation, it will probably outline a proposed probation plan (including employment or educational placement; residence; an alcohol or narcotics rehabilitation program, if appropriate; a plan and schedule for restitutionary payments or for payment of a fine, if appropriate; and a plan of probationary supervision). If it recommends against probation, it may state the reasons why a probationary disposition is thought infeasible (including obstacles to the arrangement of a satisfactory probation plan). The presentence report will summarize and have attached to it any psychological or psychiatric reports that have been made on the defendant. These reports, too, may contain sentencing recommendations. They will often contain predictions of future dangerousness. These are typically inaccurate, and counsel should be alert to challenge them on the grounds that specific techniques used to evaluate the defendant are unreliable and/or that the purported science of recidivism-prediction and deviance-prediction is, as whole, demonstrably error-prone. Detailed critical analyses of the subject are found in NACDL TASK FORCE ON RISK ASSESSMENT TOOLS, REPORT: RISK ASSESSMENT TOOLS IN THE CRIMINAL LEGAL SYSTEM – THEORY AND PRACTICE, A RESOURCE GUIDE (Melissa Hamilton, author, November 2020), available at https://www.nacdl.org/getattachment/a92d7c30-32d4-4b49-9c57-6c14ed0b9894/riskassessmentreportnovember182020.pdf, and Michael Tonry, Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again, 48 CRIME AND JUSTICE – A REVIEW OF RESEARCH 439 (Spring 2019). On receipt of the report, the court sets a date for a sentencing hearing, unless a date certain was set immediately following conviction.

First Page

1952

Source Publication

Trial Manual 11 for the Defense of Criminal Cases

Source Editors/Authors

Anthony G. Amsterdam, Randy A. Hertz

Publication Date

2026

Document Type

Chapter

Edition

11

Rights & Restrictions

CC BY-NC-ND 4.0, https://creativecommons.org/licenses/by-nc-nd/4.0/

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