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CJC1162
Parole & Probation
Dr. E. C. Buchholz
Chapter 4
Pretrial Supervision, Sentencing, and the Presentence Investigation Report
Pretrial Services
 Pretrial Services is a department with two overlapping functions:
 Assisting the court with release/detention decisions.
 Supervising those persons conditionally released on bond in order to protect public
safety & ensure they appear at their next court date.
 With pretrial release, defendants are released from jail while awaiting the next court
appearance, during which time they can live & work in the community
LO: 1
History of Pretrial Release
 The Manhattan Bail Project in 1960 began to assist judges in identifying defendants who could
be released on their own recognizance (ROR).
 2 decades later, more than 200 cities had adopted similar programs.
 The Federal Bail Reform Act of 1966 established guidelines on appropriate bail amounts and
alternatives to detention for those unable to afford bail.
LO: 1
History of Pretrial Release
 In 1984, the 2nd Federal Bail Reform Act added the safety of the public to the likelihood of
appearance as a criteria for pretrial release.
 Most pretrial programs are funded by counties and administered by probation offices.
LO: 1
The Pretrial Release Decision
 Pretrial services recommend “least restrictive option” available
 Most states use a quantitative point system to assess risk and need factors for the pretrial
release system.
 Pretrial service officers also interview defendants
 In most jurisdictions, pretrial officers make recommendations to the court, but in others the
pretrial service agency has delegated release authority, allowing officers to release defendants
before initial court appearance
LO: 2
The Pretrial Release Decision cont’d
 The federal system utilizes an interview and assessment of risk of danger and nonappearance
for each defendant.
 Benefits of pretrial services include lower jail populations as well as allowing defendants to
remain employed and assist in their own defense.
The Pretrial Release Decision, Cont’d
 The pretrial services officer assesses the defendant’s social and criminal history, but not the
weight of the evidence in the pending charge.
 The personal interview of each defendant by a pretrial services officer is recommended by the
National Association of Pretrial Services Agencies.
 Programs that interviewed defendants and used objective risk assessment instruments had less
crowded jails.
LO: 2
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The Pretrial Release Decision, Cont’d
 Factors that predict failure to appear & risk to the community:
• current charges
• outstanding warrants & pending charges
• active community supervision at time of arrest
• criminal history & history of failure to appear
• history of violence & substance abuse
• stability of residence & employment
• community ties
 Despite changes to reform bail in the 1960s, federal pretrial detention rates have been
increasing
LO: 2
What type of questions are asked of defendants?
 Have you ever felt you should cut down on your drinking or drug use?
 Have people annoyed you by criticizing your drug use or drinking?
 Have you ever felt guilty about your drug use or drinking?
 Have you had an eye opener the first thing in the morning to steady nerves or get rid of a
hangover?
 Do you ever use drugs to change the effect of another drug you have taken?
 Do you feel . . . nervous, hopeless, restless or fidgety, so depressed that nothing can cheer you
up?
 Do you feel that everything is an effort, worthless?
 Has a medical doctor ever prescribed medicine for an emotional problem such as depression or
nervousness?
What type of questions are asked of defendants?
 Have you been hospitalized for an emotional or behavioral problem?
 Did you receive special education services in school for an emotional or behavioral problem?
 Have you ever spoken to a psychologist or counselor about an emotional problem?
 Have you ever received treatment for an alcohol or drug problem?
 Do you have chronic medial problems that continue to interfere with your life?
 Are taking prescription medicine for a physical problem?
 Does someone contribute to your support?
 Does it constitute the majority of your support?
 How many people depend on you for their support?
What type of questions are asked of defendants?
 Are you satisfied with your living arrangements?
 Do you live with anyone who has a drug or alcohol problem?
 Have you even been a victim of emotional, physical or sexual abuse?
 What is your frequency of drug or alcohol use?
 Do you administer drugs orally, through an IV, smoke, nasal snort?
 Which substance is a major problem?
Types of Bonds
 Secured Bonds
 Surety bond
 When the defendant uses the services of a bail company
 Full cash bond
 Property/collateral bond
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 Defendant deposits bail amount in cash or property collateral with court
LO: 2
Types of Bonds cont’d
 Unsecured bond
 Does not require money up front
 Release on recognizance
 Requires only a signed agreement
 Conditional release
 Most often used with traffic offenders, specifies driving conditions until next hearing
LO: 2
Recent Trends in the Federal
Release Decision
 Despite the changes that were made to reform bail in the 1960s and keep people out of the
system, federal pretrial detention continues to grow.
 Pretrial detention rates have been steadily increasing in the federal system since 1992 to the
present time, and now comprise over 60% of defendants.
 State courts have remained consistent at 34%-38%.
LO: 2
 Some possible reasons:
 A change in individual situations
 Fewer defendants are employed—31%, compared to 57% in 1987
 More defendants are transient
 1/3 of defendants have lived in the same area for 5 years or more, compared to 2/3s in
1987
Pretrial Supervision
 Pretrial supervision (known as surety bond in some jurisdictions) can be ordered as a condition
of release
 Most state and federal felons released on bond have some sort of pretrial supervision.
 In the state systems, only 2 out of 10 defendants receive pretrial supervision
 Defendants on supervision are typically required to call in weekly, comply with curfew, submit
to drug testing, maintain employment and avoid contact with victims or witnesses.
LO: 1
Pretrial Supervision, Cont’d
 89% of the first violations of minor release conditions result in a warning on the first occasion,
while on a second violation, 86% are reported to the court.
 Serious violations result in the issuance of a bench warrant, detention or bail revocation.
 Defendants on bond for murder, burglary or motor vehicle theft the most likely to commit new
felonies, but more likely to appear for court.
LO:4
New Jersey Restrictions on Bail for Alleged Domestic Abuse Offenders
 Timothy Pack chased his former girlfriend with his car, rammed her car, causing her to drive into
a building. He was unable to bond out because the judge imposed $50,000 cash-only bail. The
bail decision resulted from a new law in the state the places stricter conditions for bail on
offenders who violate a pre-existing restraining order or are found in contempt of court.
 In the past, Pack would have been able to put up 10% of his bail amount. He now must post the
entire amount in cash or a bail bond secured by real property, depending on the situation.
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Failure to Appear
 Defendants who failed to appear (FTA) did not attend their court date and seemed most likely
to flee the day before their trial, hearing, or just prior to surrendering themselves (Henry, 2007)
 Jurisdictions following up for failure to appear have decreased in recent years (Clark & Henry
2003)
LO: 3
Reducing Failure to Appear
 87% of pretrial programs reminded defendants of their upcoming court dates.
 A study by Goldkamp and White (1998) failed to demonstrate that varying degrees of
notification and deterrence made a significant difference in FTA and rearrest.
 Pretrial services officers submit a report to the sentencing court regarding the defendant’s
compliance with bond conditions.
LO: 4
Diversion
 The suspension or removal of a case from further court action provided the defendant
successfully completes the term of community supervision
 Diversion attempts to avoid the negative aspects of incarceration while providing rehabilitation
in the community.
 Charges are dismissed & there is no official conviction
 Prosecutors & defense attorneys in some jurisdictions recommend defendants for diversion
programs before arraignment or plea
LO: 3
Diversion
 Factors considered in diversion decision:
 prior criminal history
 mental health
 substance abuse history
 community ties
 gang affiliation
 official version of the offense,=
 other pending cases
LO: 3
Candidates for Diversion
 Diversion programs provide services for three types of individuals:
1. Juvenile or first-time adult offenders/felons
2. Offenders with special needs, such as mental health problems
3. Certain offenses: theft, possession of controlled substances, DWI, domestic assault,
prostitution
LO: 3
 Factors That Affect Granting a Community Sentence
 Eligibility for community corrections sentence
 Ability of defendant to meet conditions of probation
 Availability of community-based sanctions
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 Factors contained in presentence investigation report: offender’s social stability, family ties,
marital status, employment & drug abuse history
 Judges engage in process of “reflective justice”
Criticisms of Diversion Programs
 One criticism of diversion programs overall is a lack of clarity about the best course of action if a
participant fails to complete the requirements of a program.
 A second critique of diversion programs is that they may be perceived by average citizens as
absolving the defendant of responsibility.
Determinate Sentencing
 Determinate sentencing goals include:
• Reduce or eliminate sentencing disparity
• Increase judicial accountability
• Increase punishment for violent offenders
• Provide a basis for population projections & resource allocation
Sentencing Guidelines
 Goals include:
 Reduction or elimination of sentencing disparity
 Increased judicial accountability
LO: 1
 Increased punishment for violent offenders
 A basis for population projections and resource allocation
Sentencing Guidelines
 About half the states have adopted some form of sentencing guidelines
 Presumptive sentencing grids require judges to use the guidelines & provide written reasons for
any deviation
 Voluntary sentencing guidelines are suggestions that judges may or may not accept.
Sentencing Commissions
 Sentencing commissions exist at the federal level and in about half the states
 Monitor guidelines, departures, & make sentencing recommendations to the legislature
 Are responsible for evaluating and revising the guidelines as appropriate.
LO: 1
U.S. Sentencing Guidelines
 Originally set narrow, mandatory ranges of punishment based on the offense & defendant’s
prior criminal history
 In U.S. v. Booker (2005), the Supreme Court ruled that aggravating facts used to enhance
punishment must be proved to a jury beyond a reasonable doubt & that the Guidelines are
advisory, not mandatory
 Interaction between criminal history & offense level determines range of months of
imprisonment
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North Carolina Sentencing Guidelines
 Allow for more categories of offenders to be eligible for community-based corrections
 Provides 3 types of sentences: prison, residential intermediate sanctions, & nonresidential
community sanctions
 Within each class of offenses, there is an “aggravating,” presumptive,” & “mitigating” sentence
 Goal is to differentiate the type of offender sent to prison versus those who are punished in the
community
Indeterminate Sentencing
 Most states still use an indeterminate sentencing structure
 Judges have more discretion on the type & length of sentences
 Parole boards consider early release after a minimum sentence term has been completed
The Presentence Investigation Report
 The PSI is a document prepared by a probation officer to aid judges in the sentencing decision,
and:
 Is used by prosecutors, defense attorneys, parole boards and probation and parole
officers
 Describes the nature of the offense, offender characteristics criminal history, loss to the
victim and sentencing recommendations
LO: 3
PSI Report cont’d
• Seldom used for misdemeanor crimes
• Post-sentence reports may be written after a guilty plea & if the defendant waived a PSI
• In jurisdictions with sentencing guidelines, officers write guideline worksheets to
calculate sentences
Contents of the PSI Report
 Offender-Based PSI Reports (1920s1980s) were:
• Offender-based and focused on rehabilitation
• Utilized in indeterminate sentencing structures
 Offense-Based PSI Reports (1980s-Present):
• Offense-based and focus on the crime committed
• Utilized in determinate sentence structures
• In guidelines jurisdictions, apply guidelines to facts of the case
LO: 3
Preparing the PSI Report
 The PSI is ideally prepared after adjudication of guilt, but before sentencing.
 The PSI process consists of:
 The initial interview
 Collateral contacts & interviews
 Investigation and verification
 The evaluative summary
 The sentence recommendation
LO: 4
Victim Impact Statement
 A Victim Impact Statement is required in all federal PSIs and some state PSIs.
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 Includes physical injuries and emotional and psychological toll on victim and victim’s
family.
 A breakdown of the victim’s financial costs that were not covered by the victim compensation
fund are also provided.
LO: 3
Legal Issues Concerning the PSI Report
 Disclosure – limited to defendant, attorneys
 Inaccuracies – error must be harmful
 Hearsay – may be permitted
 The Exclusionary Rule – does not apply
 The Miranda Warning – is not triggered
 The right to a lawyer – is neither required nor prohibited by U.S. Supreme Court
LO: 5
Conditions of Community Corrections
 Authority to impose conditions rests with the courts
 Standard Conditions are imposed on all persons with community sentences regardless of the
offense.
LO: 2
Examples of Standard Conditions
 Obey all laws,
 Follow directives of supervising officer,
 Work or attend school,
 Refrain from substance abuse/ alcohol,
 Submit to drug testing
 Obtain permission to move,
 Report regularly to officer,
 Pay supervision fees,
 Agree to search at any time,
 Do not associate with criminals
Special Conditions
 Special Conditions: added to standard conditions & tailored to fit the problems & needs of the
offender:
Conditions of Community Corrections, Cont’d
 Limitations on special conditions
 Must be clear and specific
 Must be reasonable
 Must either protect society or rehabilitate the offender
LO: 2
Conditions of Community Corrections, Cont’d
 Supervision conditions must be constitutional.
 When fundamental constitutional rights are limited or infringed upon by a condition of
probation, the government must establish a “compelling state interest” that would justify
keeping the condition.
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First Amendment Rights
 First Amendment rights of religion, speech, assembly, press, and petitioning the government for
redress of grievances are considered basic, fundamental rights.
 A.A. meeting attendance as a condition of probation was ruled unconstitutional on religious
grounds by several lower courts.
LO: 2
Search & Seizure
 The Fourth Amendment right against unreasonable searches and seizures is not as highly
protected for probationers as other constitutional rights.
 In Griffin v. Wisconsin (1987), the U.S. Supreme Court ruled that a warrantless search of a
probationer’s home is valid as long as reasonable grounds exist. Department regulation
permitting search was valid.
LO: 2
Search & Seizure
 In U.S. v. Knight (2001), the Supreme Court ruled when a police or probation officer has
reasonable suspicion that a probation condition has been violated, or a search may yield
evidence of a crime, a police officer can conduct a warrantless search of probationer’s home
LO: 2
Self-Incrimination
 In McKune Warden v. Lile (2002), the U.S. Supreme Court held that a sex offender treatment
program inside a Kansas prison that required an acknowledgement of all prior sex offenses does
not violate the Fifth Amendment’s privilege against self-incrimination.
LO: 2
Standard Probation Supervision
New Mexico Corrections Department
 State Laws - I will not violate any of the laws or ordinances of the State of NM, or any other
jurisdiction. I shall not endanger the person or property of another.
 Reporting - I will report to my Probation/Parole Officer as often as required and will submit
completed and truthful written reports as required by my Probation/Parole Officer. All
communication with my Probation/Parole Officer will be truthful and accurate and I will
promptly reply to any correspondence or communication I may receive from the Probation
Office.
 Status - I will get permission from my Probation/Parole Officer before: a) Leaving the county
where I am being supervised and/or residing; b) Changing jobs; c) Changing residence; or d)
Engaging in any major financial contract or debt.
 Association - I will not associate with any person identified by my Probation/Parole Officer as
being detrimental to my Probation supervision, which may include persons having a criminal
record, other probationers and parolees, and victims or witnesses of my crime or crimes.
Standard Conditions, cont’d
 Visits - I will permit any Probation/Parole Officer to visit me at my home or place of employment
at any time. I will permit a warrant-less search by the Officer of my person, automobile,
residence, property and/or living quarters if he/she has reasonable cause to believe the search
will produce evidence of a violation of my conditions of probation.
 Employment - Unless exempted, I will make every effort to obtain and hold a legitimate job and
fulfill all financial obligations required of me including support of my family. I shall cooperate
with my Probation Officer in any effort to assist me in obtaining employment. If I lose my job for
any reason, I shall report this fact to my probation/Parole Officer within 48 hours of the change.
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Standard Conditions, cont’d
 Weapons - I will not buy, sell, own or have in my possession, at any time, firearms, ammunition,
or other deadly weapons.
 Drugs - I will not buy, sell, consume, possess or distribute any controlled substances except
those legally prescribed for my use by a State Certified Medical Doctor. I will also provide urine
or breath test specimens for laboratory analysis upon request of the Probation and Parole
division.
 Arrest - I will report any arrest, charge or questioning by a Peace Officer to my Probation/Parole
Officer within 48 hours of the incident. The toll free number 1-800-428-5686 is available for
emergency contact with my Probation/Parole Officer.
 Transfer - If my probation supervision is transferred to another state, I will abide by any
additional supervision conditions required by that state.
 Informant - I will not enter into any agreement to act, or act as an "informer" or special agent
for any law enforcement agency without the permission of the Director of the Probation and
Parole Division and the sentencing judge.
Standard Conditions, cont’d
 Probation Costs - I will pay probation costs as determined by my Probation/Parole Officer on or
before the designated date each month to the Corrections Department in the form of a money
order or cashier's check.
 Photo - I will submit myself for photographing and fingerprinting as directed by the Probation &
Parole Division.
 Alcohol - I shall not possess, use or consume any alcoholic beverages and will not at any time
enter what is commonly known as a bar or lounge where alcoholic beverages are served or sold
for consumption on the premises.
New Jersey Restrictions on Bail for Alleged Domestic Abuse Offenders
 Timothy Pack chased his former girlfriend with his car, rammed her car, causing her to drive into
a building. He was unable to bond out because the judge imposed $50,000 cash-only bail. The
bail decision resulted from a new law in the state the places stricter conditions for bail on
offenders who violate a pre-existing restraining order or are found in contempt of court.
 In the past, Pack would have been able to put up 10% of his bail amount. He now must post the
entire amount in cash or a bail bond secured by real property, depending on the situation.
9.16.13