02. Presentence Investigation
The interview takes place at the local U.S. Probation office at a scheduled time. It is imperative that you are on time. In a more comprehensive investigation, the defendant is also visited at the home to verify background information given. The amount of time it takes will depend on the amount of information you are providing and how well you have prepared for the meeting. These meetings can last 2-4 hours, so clear your calendar for the day because you do not want to leave this interview until it is over.
Advanced preparation for the presentence interview is vital. Probation officers are very sensitive to defendants not taking responsibility for the crimes for which they have been either convicted or pleaded. Have a prepared answer for Acceptance of Responsibility ready and make sure that your attorney has approved it. It is never a good idea to paint a portrait of yourself as a “victim,” and how this will affect your family. Probation officers are aware of how families are affected and there is an appropriate time during the interview to disclose your family situation. Just be careful not to link your punishment to your family early in the interview.
With that said, you can take responsibility but also can explain ways that you believe your behavior was influenced in the course of the stated criminal actions. We have provided some sample questions in this section for you to practice your answers prior to the interview.
If you are someone who was involved in a white-collar crime, remember that U.S. Probation Officers may not be well-versed on the complexities of these types of activities since the majority of the cases they see are drug-related. You need to be patient and give them information that will allow them to understand the crime without demeaning them for not understanding financial transactions or investments. Many Probation Officers dread financial cases mainly because they have little financial training. Be patient and courteous in explaining or defining terms to help the evaluator understand the actions in question.
In evaluating your personal history and background, Probation Officers do focus on your more recent history but they will look into past influences on your life. During the interview, questions related to your personality, behavior, extent of family cohesiveness, attitude of parents, personal lifestyle, neighborhood, etc are all likely to be asked. Some examples of question could be:
What are the most important influences in your life?
How would you describe your family?
Where did you grow up? How would you describe the neighborhood?
How long did you live there?
What is your current living situation?
During the course of the interview, your immediate family members are identified, including parents and/or guardians, siblings, marriages, divorces, and dependents. The purpose of this is to gain information about your fulfillment of responsibilities toward the spouse, ex-spouse, children, or any other dependents. Probation will contact some of these family members, usually by phone, to get their perspectives. It is always a good idea to let people know that someone from Probation will be calling. Realizing that the crime does not define you as a person, the Probation Officer is looking for character references that will honestly provide answers as to your positive contributions to society. Some examples of questions could be:
What are the names of parents and siblings? Where do they live?
How would you describe your parents? Occupation (general)?
Any history of domestic disturbances in your childhood home?
What is the status of your relationship with your parents? Last contact?
Are your parents aware of your current situation? How do they feel about it?
Are your parents available to be interviewed?
What is your relationship with your sibling(s)? Are they aware of your situation? Are they available for interview?
In order to assist the Probation Officer, bring a contact list of people that you want her to speak with as part of the investigation.
Your marital status or other relationships are an important part of the interview. Relationships that resulted in children are also discussed in detail. Some examples of questions could be:
- Name and age of spouse/significant other
- Date and place of marriage or length of relationship if not married
- Present status of relationship
- Names, ages and custodial status of children, including information on arrangements for the children if the defendant is imprisoned
- Involvement with any social service agencies
- Previous marriage(s) and the names of spouses
- Date and place of marriage
- Date and place of divorce
- Status of relationship
- Children from previous marriage, custodial status of children, status of any court-ordered child support obligation
You will be asked about your relationship with your former spouse(s) and whether or not they are aware of your situation. Further, they will ask whether or not they may contact your former spouse(s) for an interview.
The purpose of these questions is not to intimidate but to gain a picture of your life and the impact that your incarceration is going to have on your family. If your relationships are strained, you will need to explain your position. Probation Officers have heard many stories of family issues, so yours will not shock. Some possible questions that Probation could ask family members include:
- How would you describe the defendant?
- What is the status of your relationship?
- What has been the impact of the offense on your relationship? The family?
- Any history of violence in the home?
- Physical health issues?
- What do you know about the defendant’s financial condition?
- If the defendant is incarcerated, how will it affect the family?
- Is there anything else you would like the Court to know about the defendant?
Many defendants usually feel good about the information that their family provides about them. While these do play into the decision of the Probation Officer’s recommendation of a prison term, it may seem that their impact was not considered as much as you may have hoped. Many people who go to prison have family situations that are going to be damaged by a prison term, but that does not prevent judges from sending people to prison. This is not meant to discourage those positive comments that will come from your family, but to serve as a reality check when the report is completed and a prison term is recommended.
Questions regarding your medical condition are also part of the interview. Your history of significant medical problems, current medical problems, as well as courses of treatment, your physicians and any medications that you are taking. Some examples of questions that could be asked include:
- Height, weight, color of hair, color of eyes
- Tattoos and scars
- History of significant medical condition?
- Any current medical conditions and/or current treatments?
- Current medications and dosages?
- Family history of medical problems?
Have as much supporting medical information as you can for submission. A complete listing of of prescription medication and dosages is very important to have with you. Providing accurate health information may have an impact upon determining a prison sentence and the institution classification. Some people make the mistake of overplaying their medical conditions in an effort to avoid a prison term. This does not work. As you will see in our Prison Section, the BOP has the ability to treat most all medical conditions. If your health is determined to be at a level requiring extensive treatment, you may find yourself at a medical facility that is far from home and, possibly, a higher security level. If you have medical needs that need that level of care, there is certainly no reason to fear such a classification but some of these conditions could limit the number of facilities that can meet your care needs.
The interview will also gain information about your current and past mental health. As can be expected, your current mental health may not be at its best. However, you do not want to overplay that either, it is truly a major problem. Lack of sleep, anxiety, depression and racing thoughts associated with confusion are all normal symptoms for people going through an experience such as facing incarceration. If these are not manageable for you, then by all means disclose them to the Probation Officer. If there are indications that further psychological or psychiatric evaluation is needed, the Probation Officer has the authority to order those. Again, disclose your true feelings but be sure to state if you are confident in your ability to manage these. Some possible questions about your mental health could be:
- Describe your personality traits (positive and negative)
- History of mental or emotional problems?
- Family history of mental or emotional problems?
- Have you ever received treatment for mental or emotional problems? What was the diagnosis? Dates of treatment?
- Any medications for mental disorders? Dosage?
- Any history of suicide attempts?
- Name of any treatment providers?
- How have you been feeling recently? How are you feeling today?
If you are taking anxiety drugs, such as Valium, Xanax, Klonopin or Ativan for your stress, you need to ween yourself off of these as soon as possible. Prisons do not routinely dispense these drugs. Most people who report to prison taking these kinds of drugs are taken off of them immediately (cold turkey). Do yourself a favor and start the process of removing your dependency now.
You will be asked about any past substance or current substance abuse problems. In particular, these questions are asked for the benefit of the Bureau of Prisons who use this information about the abuse history for the 12 months prior to arrest for use in determining if placement in the Residential Drug Abuse Program (RDAP) is appropriate. One tool that Probation Officers have to evaluate a candidate is the Texas Christian University Drug Screen (TCDUS-II). That evaluation is available here so that you can get an understanding of the types of questions you may be asked. A similar evaluation could also be made once you are in prison and are being interviewed for the RDAP program. The types of questions that could be asked on drug and alcohol abuse could be:
- Age drug use began?
- How much did you spend on drugs or alcohol?
- Types of drugs or alcohol used/abused?
- Date of last use?
- History of treatment?
- Family history?
As part of normal procedure, Probation has the right to ask for a urine sample to check for drug use. Refusal to provide a sample can be reported in the PSR and an order can be obtained from the judge for you to comply. Some misreports of how to handle a the urinalysis have emerged over time. One is that testing positive for drug use will aid in getting you into the RDAP drug program, which is not true. Testing positive for drugs can lead to revocation of bail, additional testing and could be viewed negatively by the judge if put into the PSR. Do not take any drugs for the purpose of failing a drug test.
Your education level is important to determine. Primarily, the Bureau of Prisons mandates that if you have not completed high school then you have to participate in a program in prison leading to a GED. Proof of graduation from high school is imperative! Even though you may have graduated many years ago, at a minimum you have to have proof of your graduation from high school or you will have to participate in GED training classes in prison. Without proof of your high school diploma and your refusal to participate in the program, you will be subjected to a reduction in good time days earned on your prison term. If your high school does not exist any longer and you have no proof of your graduation, then you may have to take GED classes. If you have other certificates (college degrees, vocational training, etc.), bring that documentation as well.
You will be asked about your work history including:
- Current employment status, Student, Retired, Homemaker
- How long in current position? Salary?
- Is your current employer aware of your current legal situation? Can they be interviewed?
- If you are a business owner, will the company/business survive if you are incarcerated?
- What provisions have you made to make sure your business will continue to run in your absence.
- If on disability or Social Security, you need to provide documentation proof
It is possible that Probation will contact your employer about your case, particularly if there is a foreseeable third party risk. An example of such a risk would be when the defendant has been convicted or pled to charges related to mortgage fraud and is currently employed by a firm that initiates mortgages. Some defendants resign prior to any such notification to their employer.
A defendant’s financial condition is a very important part of the interview process as the court will use this to determine your ability to pay a criminal monetary penalty, and, if so, the manner in which it will be paid. You are required to prepare and file a listing of all assets owned or controlled as of the date of your arrest, along with your financial needs and earning ability. Even if your assets show that you have no ability, or a limited ability, to pay, you can expect that a judge will impose a restitution amount consistent with the amount of money involved in the stated criminal activity. This could mean millions of dollars in restitution even if you have no foreseeable means to pay it.
A complete examination of your financial status is part of the Presentence Networth Statement set of forms. This is a detailed worksheet of you every financial aspect of your life. For many people, these assets have been seriously depleted over the past few years but for some, it is imperative that you provide complete, and accurate information as required. Often times, consultation with your attorney is necessary in determining information that should be disclosed.
If your assets have been completely drained and you are considered indigent, the Net Worth Short Form Statement is used. Probation will review and ask questions about the financial information and will obtain other source to verify that the information you provided is correct. Probation may ask you to provide additional documentation (e.g. monthly statements and points of contact at financial institutions). Your ability to be forthcoming and the timely production of financial information requested is something that the Probation Officer will view favorably in the PSR.
In some cases, Probation may want to obtain documentation directly from an independent third party. Doing so may require that certain release forms are executed. Standard release forms that are routinely used by Probation include:
- Series of Probation Forms 11 - Authorization for release of military, drug abuse, mental health, government information, and financial records
- Series of Probation Forms 14 - Authorization for release of military service, medical history, employment, education, birth, and marriage or divorce records.
- Probation Form 48A - Used in cases requiring complex financial investigations in obtaining financial records.
It is common for many of these requests to be unanswered by the submission of the PSR so try to get the information yourself. The report is incomplete without this information and the Judge, and the BOP, will be using an incomplete report to make a final recommendation. You are the best source for getting this information and it best serves your interests.
In addition to interviewing you and your family, Probation also speaks with your defense attorney and the prosecutors involved in the case. Your attorney may be asked about her assessment of your involvement in the offense and any mitigating circumstances that should be considered at sentencing.
Victims may also weigh in with their opinion during the PSI, in a section of the report referred to as the Victim Impact Statement. In many federal cases, there are no direct victims affected by the case (e.g. drugs, insider trading) but Probation is required to reach out to victims when they can be identified. An assessment of the victims’ financial, social, psychological and medical impact are considered during the investigation. Just like in statements made by family members, hearsay evidence gained from victims may be used at sentencing but it must have some indications of reliability.
There are any number of questions that Probation could ask a victim of crime but some could be:
- Do you know the defendant?
- Describe how this offense has affected your life
- What was your total loss?
- Has your insurance company or any financial institution reimbursed you for your loss?
Your behavior while under pretrial supervision is also part of the investigation. Your ability to comply with rules of your pretrial release and reporting as required to pretrial services are noted.
Finally, a detailed review of any previous criminal history is conducted. About half of federal defendants have either no, or minor, previous criminal offenses. If you have any other convictions, these could have an affect on the term recommended under the Federal Sentencing Guidelines and the terms of incarceration. Even offense that may have occurred decades before are relevant. The more offenses, the more months you can expect under the recommended guideline sentence.