I first began writing presentence reports in 1983, pre-guideline. Psychological and social histories were important to the investigation of defendants and their offenses. Our “motto” was “investigate, question, probe.” Many do not know that in actuality there were sentencing statistics issued by the Administrative Office of the U.S. Courts every year. Judges and probation officers often referred to those statistics as a gauge for sentencing, but they were not the controlling factor.
Then in 1987 came the Sentencing Guidelines. Many social history issues that had been considered in sentencing were thrown out the window. Probation officers were told to determine sentences based upon a mathematical calculation, with little to no regard for the defendants and their histories. As a U.S. Probation Officer who worked in a district fortunate enough to staff with judges, I can tell you the mandatory nature of the guidelines did not go over well. Judges always did—and still do—want to know who is this person, why did (s)he commit this offense, what happened to the money?
I know there are probation officers who consider themselves “guideline purists.” My response is poppycock! The sentencing of defendants never has been and never should be all about the numbers. Especially when so many guidelines are mandated by Congress and not based upon scientific facts. That is why Booker was so huge. After many years of judges looking for reasons to depart from the guidelines and not be reversed, Booker in essence said, “Ok, after 18 years we’ve decided that social history is important after all.”
It is not easy to find issues of mitigation. You have to have an ability to know what to ask, reading between lines, which takes a special kind of investigator. When probation officers receive presentence report assignments, they are inundated with information from the government, the investigative agent, and, sometimes, victims. In order to determine which 18 U.S.C. §3553(a) factors apply to a defendant, probation officers need to conduct hours of interviews with offenders, family members and close friends to gain this insight. In this time of budget cuts, insufficient staff, and high caseloads, this is not going to happen. That is why it is incumbent upon defense attorneys to provide this information.
Have you ever said, “This guy is nuts”? Well, maybe he is and a psychological evaluation would be your key. The most recent study by the Department of Justice indicated that more than half of all prison and jail inmates—including 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of local jail inmates—were found to have a mental health problem. Female inmates had even higher rates of problems than male inmates—in state prisons, 73 percent of females and 55 percent of males; in federal prisons, 61 percent of females and 44 percent of males; and in local jails, 75 percent of females and 63 percent of males (“Mental Health Problems of Prison and Jail Inmates,” Doris J. James and Lauren E. Glaze, BJS Statisticians, September 2006). In 2009, Sentencing Commission statistics show only 2.9% of defendants receiving a downward departure for “mental and emotional conditions,” while 11.9 percent were given downward departures for “general mitigating circumstances” (U.S. Sentencing Commission’s Sourcebook of Federal Sentencing Statistics 2009). Clearly mental health issues are underutilized as mitigation for defendants.
If childhood experiences were extreme (and I have successfully used being raised in a drug-infested area of Dallas with no role models as justification), if the defendant suffered trauma or abuse, these situations can be used to show why the defendant makes poor choices/decisions and engages in risky behavior, and can be used as a reason for variance from the guidelines.
In complex white-collar cases, meeting with the probation officer early on and submitting the defense view of the case, the loss amount, etc., can be helpful. Sometimes putting this in a concise written form for the probation officer is helpful.
The pendulum is swinging back. As advocates for your defendants, it is incumbent upon you to either take the time to flesh out these mitigation issues for your client or hire someone to do it for you. By and large, the probation officers are not going to do it for you. Before I retired, I viewed myself as a neutral “eyes and ears of the court.” Subsequent work for defense attorneys has shown me how very prosecutorial probation officers actually are. It is not out of malice; it is more from a “corporate mentality.” That is why it is so important for attorneys to be proactive. It has to start as soon as you are hired, not when the presentence report is disclosed. It is up to you to push that pendulum back toward the defendants and away from the perspective of the prosecution. Think “creative advocacy.”