Understanding the Federal Pre-sentence Investigation Report
By: Michael G Santos 10/28/2001
A description of the pre-sentence investigation, the report that it generates, and steps offenders ought to take to ensure its accuracy. Federal Bureau of Prisons (BOP) After a conviction, the next important event in the criminal justice machine is the pre-sentence investigation. This procedure, governed by Rule 32 of the U.S. Rules of Criminal Procedure, is one that nearly every offender endures. The “investigation” conducted by a U.S. Probation officer, is mandated by law in order to help the sentencing judge and others in the criminal justice system evaluate the offender. The investigation will culminate with an ever-important Pre-Sentence-Investigation Report (PSI) that the sentencing judge will consider when imposing sentence. Besides the importance of the PSI for sentencing purposes, it demands the careful attention of the offender because the report also will play a significant role in the offender’s life if the offender is sentenced to serve a sentence in the Federal Bureau of Prisons (BOP). Indeed, the information presented in the PSI will determine how the offender is classified throughout his journey through the criminal justice system. In order to preserve rights and to ensure the offender is not subjected to more severe conditions of imprisonment then are necessary, the offender should understand everything about the pre-sentence investigation before it begins. Every effort must be made to make the PSI’s accuracy certain. The U.S. Probation officer assigned to the case will begin the investigation by becoming familiar with the government’s version of the offense. Then, the probation officer will meet with the offender, either in the facility where the offender is being held, or if the offender is in the community, at the U.S. Probation Office. During this meeting, the probation officer will seek to obtain as much information from the offender as possible. The probation officer will record whatever the offender has to say about his accounting of the offense, but he also will solicit information about the offender’s personal background. Among other things, the probation officer will inquire about the offender’s family history, his education, his criminal background, employment record, substance-abuse history, medical condition, and financial status. And the probation officer will follow up on all information provided by the offender. The investigator will interview the offender’s family members, check the offender’s school records, obtain official records of the offender’s previous legal problems. The probation officer also will speak with previous employers, check with creditors, and search for information to verify the offender’s statements about his medical condition. The offender should realize that if the probation officer believes that the offender has provided false or misleading information, or if he believes the offender has tried to influence others before they speak with him, the probation officer may recommend the offender receive an upward departure from the sentencing guidelines the judge will follow at sentencing; the probation officer will not hesitate to charge the offender with obstruction of justice if he is convinced the offender tried in some way to interfere with or subvert his investigation. The offender may reserve his right to remain silent during the investigation, but if he chooses to communicate, he should understand that any lies or attempts to mislead the probation officer could result in a longer or more severe sentence. So, if the offender chooses to speak with the probation officer during the investigation, he should be truthful. Some offenders will refuse to provide any information to the U.S. probation officer. An offender’s silence will result in the probation officer’s writing a report that reflects only the government’s version of events. Appellate strategy may provide good reason for an offender not to discuss his offense, but if the offender expects a sentence of incarceration, he would be wise to provide other information about his background. The BOP will rely on the PSI for initial classification, visiting lists, access to lower bunk passes, pre qualification to participate in certain BOP programs, and for other issues germane to the offender’s life once prison gates close behind him. For those reasons, the offender ought to consult competent counsel, endeavor to understand the myriad ways the PSI will influence his BOP classification, then determine whether it’s in his best interest to provide more, rather then less information. Offender’s who have pled guilty should understand that the U.S. probation officer has the authority to recommend a significant downward adjustment from the sentencing guidelines if he is convinced that the offender provides a full and candid description of his criminal actions and demonstrates genuine remorse for his criminal behavior. The probation officer’s recommendation is not binding on the judge, but it is influential; offenders who express remorse for their actions and persuade the court that their criminal behavior represents an aberration rather than a pattern of behavior or a “lifestyle” usually receive lower sentences than those who refuse to cooperate with the pre-sentence investigation. Likewise, those who choose to exercise their right to silence may be portrayed as recalcitrant and sentenced accordingly. In summary, Rule 32 of the Federal Rules of Criminal Procedure mandates that a U.S. “probation officer must make a pre-sentence investigation and submit a report to the court before the sentence is imposed” except in rare circumstances when enough information about the offender exists on the record. The offender may have counsel present during his meeting with the probation officer; whether or not counsel is present, the offender should speak with his attorney in advance of the meeting and make every effort to understand the significance of the pre-sentence investigation prior to meeting with the probation officer. Once the officer finishes the investigation, court rules require him to write his complete report “in a non argumentative style.” After describing the details of the offense and other identifying data, a model PSI from the Southern District of New York contains the following headings: Offense Conduct: In this section, the probation officer writes the government’s version of events and describes discrepancies that the offender may point out. Victim Impact Statement: If the crime had an identifiable victim, the U.S. probation officer gives the victim an opportunity to describe how the offense impacted him (or her). Defendants’ Participation: If the offender was convicted along with others in the offense, the probation officer may detail the conduct of each defendant in the case under this heading. Obstruction of Justice Adjustment: If the offender obstructed justice in any way, the U.S. Probation officer will recommend that the offender’s sentencing guidelines be enhanced. Examples of obstruction of justice include when an offender tries to influence others of what to say during a government investigation. If the government learns about such behavior, a more severe sentence certainly will follow. Acceptance of Responsibility Adjustment: If the offender is candid about his responsibility in the offense, the U.S. probation officer may recommend that the offender receive a downward departure from his sentencing guidelines. The level of the downward departure will depend upon when the offender accepts responsibility; offenders who plead guilty early in the criminal justice procedure receive the largest downward departures for acceptance of responsibility as a reward for saving the government the time and expense of preparing for trial. Those who proceeded through trial will have a higher burden to meet in order to receive this downward departure, but going to trial does not necessarily preclude an offender from receiving this sentencing adjustment. Offense Level Computation: This information is compiled from the statutes that the offender was convicted of violating. It is an objective score, depending on the seriousness of the offense; offenders can read about these scores by studying the U.S. Sentencing Guidelines Manual, which is available in all federal prison law libraries. Criminal History: Again, this information comes from the offenders’ history of criminal convictions. Points are assigned to those who have been convicted in the past, and those points count against an offender. These points are explained in chapter four of the U.S. Sentencing Guidelines Manual. Offender Characteristic: In this section, the U.S. Probation officer will describe what he learned about the offender through his pre-sentence investigation. The offender’s family responsibilities also will be discussed as well as the offender’s community ties. Substance Abuse: This section will describe whether the offender suffered from any substance abuse problems in the past. It is an extremely important section for anyone who may be sentenced to federal prison, as the U.S. Congress has empowered the Bureau of Prisons to reduce an individual’s term of confinement through administrative means by as much as one year if offenders complete a 500-hour drug treatment program during incarceration in the BOP. The catch, however, is that the offender’s PSI must indicate the offender suffered from substance abuse at sometime. So, if an offender tells his probation officer during the investigation that he suffered from problems with alcohol, or that he smoked marijuana occasionally, that statement may qualify him for a reduction of his sentence if he successfully completes the 500-hour drug treatment program. Many offenders do not receive this information about the possible sentence reduction until it’s too late (after they’re in prison). Some offenders foolishly try to conceal their history of substance abuse because they believe it will reflect badly on them at sentencing. Hiding one’s history of substance abuse only hurts the offender by limiting his access to programs. It’s one of the ironies of the federal prison system: only those with a history of drug abuse are capable of advancing their release date through merit. Physical Condition: Here the probation officer describes whether the individual has a health problems or medical condition. If the offender suffers from a bad back, has weak knees, or any ailments that may have an impact on his ability to climb on to a top bunk or perform certain duties, he should detail those ailments so the probation officer can document them in the PSI report. Indeed, if the offender can support his medical condition with a letter from a medical doctor, he will eliminate many problems he will otherwise encounter once his term of imprisonment begins. For example, a doctor’s letter verifying a bad back or weak knees will help an offender secure a coveted lower-bunk pass; that can be a blessing for an individual who lacks the strength to climb to a top bunk. Education and VT Skills: The probation officer will speak with institutions where the offender had previously enrolled. It is important for the offender to help the probation officer by providing him with accurate information about his education record and his skills. If the offender has graduated from high school or earned a high-school equivalency certificate, he should ensure the probation officer receives verification of this accomplishment. Those who cannot prove a high school education will be required to attend prison-sponsored GED course work for at least 240 hours; they also will receive lower wages from their prison work details. Employment Record: The probation officer will check with the offender’s prior employers to obtain an evaluation of the offender’s work habits. The information presented here will have little impact on the individual’s period of incarceration, but may be helpful in influencing the sentencing judge if the offender shows a history of working as a contributing citizen. Financial Condition: This section of the report is important. An individual should consider all financial liabilities and responsibilities when meeting with the probation officer who is preparing the report. Most criminal convictions result in monetary fines; all criminal convictions result in criminal-assessment fees, and, recently, sentencing courts have been imposing cost-of-confinement fees. The only people who are excused from criminal fines and cost-of-confinement fees are those offenders whom the sentencing court finds to be incapable of paying; criminal assessment fees always must be paid. Too many offenders are remiss in reporting their actual financial position, and the court then has no basis on which to excuse the offender from paying these hefty monetary penalties. The result is that throughout one’s period of incarceration, BOP counselors will demand the offender’s commissary account be debited in monthly installments in order to apply regular payments toward these interest-bearing monetary penalties imposed at sentencing. Sentencing Options: The probation officer discusses options the judge may consider when imposing sentencing. The options are rather limited in that they only offer probation or incarceration in some form — either house arrest, confinement in a community corrections center, or imprisonment. Many crimes, particularly offenses related to the distribution of drugs, require mandatory minimum sentences that preclude sanctions less then imprisonment; one can develop a better understanding of sentencing options by reading the very detailed U.S. Sentencing Guidelines Manual. Factors that May Warrant Departure: The sentencing guidelines require the judge to sentence the offender according to a rigid system that leaves little room for discretion. In order for the judge to depart from established guidelines for a specific offender, identifiable factors must exist which the judge must articulate during the sentencing hearing. The probation officer will describe factors that may warrant either a downward or upward departure from the sentencing guidelines. The most common downward departure is when an offender cooperates with the government in the investigation and provides assistance in the prosecution of others. Prison is a rumor factory though, and those whom other prisoners suspect of being government informants may endure harsher treatment from their fellow prisoners. In rare instances, downward departures may be applied in particular cases where the offender can demonstrate that his (or her) situation is markedly different from what those who wrote the sentencing guidelines anticipated. It is a high hurdle, but a small percentage of offenders are able to receive downward departures for issues other than cooperating in the prosecution of others. Upward departures, on the other hand, occur when the sentencing judge is convinced that the sentencing guidelines do not reflect the seriousness of the offender’s conduct. Following the completion of the PSI, the probation officer will deliver copies to the U.S. Attorney and the offender’s counsel. Both parties will have time to review the report. If inaccuracies appear, they will have an opportunity to object to the perceived errors. Once the objections are noted, the probation officer will determine whether the objections are valid. If so, changes to the PSI will follow; otherwise, the PSI will remain as originally written. If the probation officer refuses to make changes that either party wants, that party can bring the matter up with the sentencing judge. The judge will listen to both sides and may present evidence to bolster its position. After hearing the arguments, the judge will make a determination on what the PSI will reflect. Sometimes, though, the judge may sentence the offender according to his findings at the hearing, but not order the PSI itself to be amended. Offenders must be insistent that the PSI be amended to reflect accurately the judge’s findings, as the BOP will use the PSI it receives from the court when classifying the offender. PARTICULAR PROBLEMS The offender, absolutely, must review his PSI carefully. As mentioned earlier, besides playing a significant role in the offender’s sentencing procedure, the PSI also will be important if a term of confinement is imposed. Some of the factors the offender must be especially concerned about is if the PSI report inaccurately reflects that the offender was a “leader” in the criminal offense. Any allusion to the word “leader” or “organizer” will result in the offender being treated more severely by the Bureau of Prisons. If the PSI suggests or identifies the offender as being a leader, and the offender believes such an accusation to be inappropriate, then it behooves him to object strenuously and urge his defense counselor to contest the inaccurate report. Another important factor drug offenders should review is the quantity of drugs for which they are being held accountable. Frequently, people come to prison who played relatively minor roles in drug distribution networks. The PSI report may suggest that the offender was responsible for all the drugs involved in a large conspiracy, when, in fact, the offender occupied only a courier role. Regardless of the conviction, once the prisoner is in the custody of the BOP, case managers and those who are responsible for classifying the prisoner will rely upon the PSI report; if it suggests the offender is responsible for large quantities of drugs, he will be classified accordingly. This may result in a loss of eligibility for camp placement and the denial of half-way house time. The offender must be diligent in ensuring that his PSI report accurately reflects his culpability in the offense. Besides leadership roles and high drug quantities, the other significant problems for PSI reports are the indications of violence, the use of weapons, or ties to organized crime. If the PSI report reflects these serious charges, and the offender is convinced such implications are inappropriately attributed to him, then the offender must fight to have the PSI report corrected. Indeed, the offender would be well advised to retain outside counsel who understands the seriousness of these charges and has the competence to persuade the sentencing judge to order PSI amendments that remove these very damaging charges. Attorneys frequently mislead their clients by telling them the PSI is not so relevant. Such advice reflects the attorney’s eagerness to conclude his representation in the case and move on to new matters. For those offenders who will move on to prison, however, inaccurate PSI reports will result in the offender serving his sentence in a more harsh environment and may deprive him of access to special programs; an inaccurate PSI may result in the offender serving more time than necessary in prison. The best time to change an inaccurate report is immediately after the offender reads it and has the opportunity to suggest corrections to the probation officer who prepared it. If the probation officer refuses to amend the PSI, 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 likely will be stuck with the inaccuracies for the duration of his sentence. And that’s a bad thing. People who do not take the time to understand the significance of the PSI frequently encounter problems that could have been avoided had the offender been more diligent in ensuring the probation officer wrote a complete and accurate PSI initially. Even if errors were made in the initial draft, the offender must not underestimate the importance of having all errors corrected and ensuring the court orders the erroneous report destroyed. Once the offender enters the prison system, making changes to the report is nearly impossible. Indeed, one of the matters a criminal conviction represents is finality. Changes are not likely to be made after sentencing. > Offenders who have the resources might consider hiring a post-conviction specialist to advise them of all issues regarding PSI reports, and perhaps to prepare a sentencing package for the judge to consider. The offender must 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 the BOP. Once the prisoner is sentenced, though, the offender must realize that the BOP will base all confinement decisions on the statements made in the PSI. EXAMPLES: ALFREDO, 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. Alfredo 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 PSI report indicated over 20 kilograms of cocaine were sold and that all conspirators, including Alfredo, were equally culpable. The sentencing judge, who had listened to all the testimony at trial, however, knew that Alfredo was a minor player in the conspiracy. He found Alfredo less culpable than the others and gave him a downward departure from the sentencing guidelines because of his minor role. The PSI, however, was never amended. As a result, in using the PSI as its reference point, the BOP classifies Alfredo’s as a serious offender and refuses him camp placement. Alfredo has tried to have his PSI amended several times during his confinement, but the judge has ruled the matter moot because Alfredo received the downward departure at sentencing. This was Alfredo’s first experience in the criminal justice system. He did not appreciate the significance of his PSI at sentencing and relied on his public defender to represent him in all matters. The public defender was successful in persuading the judge that the PSI inaccurately portrayed Alfredo as an equal participant in the conspiracy, but made no attempt to change the PSI itself. Accordingly, Alfredo was sentenced appropriately, but he serves his sentence in more severe conditions than other similarly situated offenders because his PSI remains inaccurate. Alfredo has made efforts to show his case manager the sentencing transcripts where the judge clearly ruled that Alfredo was less culpable that the others and sentenced him accordingly. Such evidence is irrelevant to the BOP, however, as the PSI governs all classification decisions. Consequently, Alfredo serves his sentence in a higher-security facility and he may be denied access to half-way house placement toward the conclusion of his term. CARLOS owns a small chain of retail stores in New Jersey. He was convicted of tax evasion and sentenced to serve four years in prison. When he was interviewed during the pre-sentence investigation, his 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 has smoked marijuana occasionally for fifteen years and he drank alcohol regularly. Had he admitted this to the probation officer, his PSI would have reflected Carlos’s experience with controlled substances, including alcohol. Instead, the PSI stated what Carlos said during the investigation: no 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 may receive up to one year of sentence reduction and six-months half-way house placement. Carlos wanted to apply for the program and approached the psychology department that administered the drug treatment program for an interview. When the administrating psychologist read Carlos’s PSI, however, she noted no indication of substance abuse. Accordingly, she told Carlos that he would not be eligible for any time off his sentence as a result of his completing the 500-hour drug treatment program. Carlos explained the he had used marijuana for 15 years but that he didn’t want to admit to the probation officer he was a drug user. The psychologist was sympathetic, but affirmed that all decisions were based on the PSI. She said that had Carlos told his probation officer that he even suffered from a drinking problem, that statement would have been sufficient for him to enroll in the program and qualify for the time off his sentence. Because he remained silent on the issue at a critical time-during the pre-sentence investigation, Carlos does not qualify for time off his sentence, regardless of whether he successfully completes the 500-hour drug-treatment program. IGOR is a successful businessman from Russia who immigrated to the U.S. in the early 1990s. He studied at a university in Moscow and earned advanced degrees in engineering prior to his moving to America. When he arrived in the U.S., he applied his skills by operating several successful technology businesses. He was later sentenced to serve nearly five years for financial crimes. During his pre-sentence investigation, Igor told his probation officer that he graduated from universities in Moscow, but he did not provide verification. Igor wrongly assumed that his business record demonstrated that he was a well-educated man. When he began to serve his term in prison, Igor’s case manager noted the PSI indicated that Igor did not have a high school diploma or its equivalency. Consequently, Igor was ordered to participate in BOP-sponsored educational courses. Igor insisted he did not need these very basic educational courses and resented having to participate. He asked to take the test at once to demonstrate his knowledge. The administrators refused Igor’s request, though, stating that the “system” required him to attend the courses. Igor refused to participate and subsequently was sanctioned with loss of telephone, visiting privileges, and good time. In other words, Igor was serving his sentence under more restrictive conditions because of an inaccurate PSI, and unless he studied in the BOP classes, he was going to serve a longer term in prison because of good-time losses. RICH pled guilty to an indictment charging several defendants with organized crime involving extortion and murder. Rich’s role, however, was minor and he was sentenced to serve approximately five years as a result of his conviction; other codefendants who were charged on Rich’s same indictment received sentences of life imprisonment. Rich’s probation officer conducted the pre-sentence investigation for all defendants on the indictment. When Rich appeared for his interview, he was accompanied by his defense counsel. The defense counsel heard everything said during Rich’s interview, and Rich was cooperative throughout the proceeding. When the report was completed and given to Rich and his attorney for review, however, it was clear that the probation officer had confused some of Rich’s codefendant’s recalcitrant statements and inappropriately applied them to him. The PSI indicated that Rich was involved in murders, domestic abuse, and drug sales. In fact, none of this information applied to Rich. At the sentencing hearing, Rich’s attorney succeeded in showing the clear error in the PSI. He ordered the PSI to be amended, and it was changed. Rich was sentenced appropriately. When Rich reported to prison, however, he learned that his case manager was using the original, erroneously prepared PSI. Consequently, the case manager told Rich that he would never be eligible for camp placement and that he may not be eligible for half-house placement either. Rich contacted his attorney, who then initiated legal action to force the BOP to use the corrected version of the PSI. The court has thus far refused to grant the order, though, stating that such issues should have been resolved at the sentencing hearing. And as a result of Rich’s attorney’s error, he continues to serve his sentence under the misclassification wrought by an inaccurate PSI. In order to avoid the problems Alfredo, Carlos, Igor, Rich, and many other federal prisoners have suffered, every individual who has been convicted in federal court ought to put forth effort to understand the pre-sentence investigation. The information provided through this chapter is a good start, and offenders also might want to read Rule 32 of the Federal Rules of Criminal Procedure to grasp the intended purpose of the pre-sentence investigation. And in order to understand some of the problems inaccurate PSI reports can cause, convicted offenders ought to spend time in a law library researching case law that has been published on matters pertaining to the pre-sentence investigation; the law librarian will help inexperienced researchers find appropriate cases to read. In summary, wise offenders will prepare themselves to avoid potential problems. They will rely on competent counsel, but they also will make efforts to understand proceedings so vital to their lives. Because the pre-sentence investigation plays a crucial role in the sentencing process, and because the report that it generates will remain influential on offenders for the duration of time they spend in the criminal justice system, every effort should be made to understand the procedure and ensure that the PSI report accepted by the court accurately reflects the offender’s culpability, background, and mitigating circumstances.