Tuesday, October 22, 2019

Addicted to jail (Probation Officers)

A few weeks ago, I wrote this piece in The Hill, "We're addicted to jail."  It addressed a problem that we have in the United States -- we jail too many people for too long.  I offered one modest proposal, that we get more defenders and civil lawyers on the bench and fewer prosecutors:
One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.
I've decided to continue to write on this subject and offer other proposals with the hope of trying to fix the over-criminalization problem that both sides of the aisle agree on (when they literally can agree on nothing else).  If you'd like to write a response (and sign your name) or make your own proposal, please feel free to email me and I will post it.

One crazy function of the federal criminal justice system is that probation officers, who are mostly non-lawyers, prepare a presentence investigation report, which includes a calculation of the federal sentencing guidelines.  In other words, these officers are analyzing complex legal questions and making a determination, many times after only speaking to the prosecution about the case.  Those reports often-times take the most extreme view of the guidelines (even more extreme than the government's view of the guidelines), views that are not supported by the plea agreement, by the law, or by the facts.  The reports also do not ever include reasons for why there should be a downward variance under 3553.  They simply repeat their standard policy that there are no factors that warrant a variance.  And then some judges will meet with probation officers ex parte and discuss the guidelines and potential sentences, all without hearing from the parties.  It's an upside-down practice.

So here's another modest proposal, this one regarding probation officers --

1.  Probation officers should not do any analysis of the guidelines whatsoever.  That should be left to the parties to each submit their guideline calculations. The judge and her law clerks can then analyze the parties' submissions and rule on any disagreements.  The same for variance arguments (up or down).    

2. Just as importantly, judges should not have ex parte meetings with probation officers before the sentencing (or accept ex parte "blue sheets" with probation recommendations as to sentence).  It's simply not fair to the parties.  The judge that I clerked for -- Judge Edward B. Davis -- would occasionally meet with a probation officer in chambers when he had a question about something in the report.  But he would never do it without the parties.   I remember one exchange he had with a probation officer who had not recommended minor role for a drug courier.  Judge Davis asked him why the reduction was not considered even though the case law was clear that it was to be decided on a case by case basis.  The PO responded that his office had a policy of never including it.  Judge Davis chuckled and asked, "Don't you work for me?" 

 We have a real jail problem.  The federal guidelines are in part to blame.  That issue is exarcerbated when probation officers have the ability to shape the debate over how those guidelines are applied and then have access to the judge without the parties before sentencing.  There is no downside to making these small changes to our sentencing process. 

Bigger ones to follow.

10 comments:

Anonymous said...

Probation officers serve an important factfinding function apart from the legal analysis. IMO their initial view on the law is a starting point...i dont think any Judge gives deference to the POs view of the law...remember DOM your last post was judges have a god complex? I agree more with that view much more than your narrative here that they are induly influenced by nonlawyer POs.

Interesting point that PSIs never include reasons for a downward variance. On the flip side, do they sometimes include reasons for an upward? Why do you think that is? Have you ever asked a PO unsuccessfully to put in reasons for a downward? What did they say? If a PSI gave reasons for an upward, do you think that was because the prosecutor requested it? Just curious. Interesting post.

Anonymous said...

I'd like to hear from a defense lawyer. Have you ever received a call or email asking you whether you have any information for the offense conduct section? I think the answer would be no. So the PO's important fact- finding mission is accomplished by talking to the AUSA and not the defense,

Anonymous said...

Another problem is that most federal judges-even the ones from private practice who weren't prosecutors-have never represented a client on a contingent basis. So they crap all over successful plaintiffs' lawyers when it comes time to award fees, conclude there is never a justification for a multiplier in a contingency case, think plaintiff lawyers deserve lower hourly rates than biglaw corporate and defense lawyers, and so on.

Anonymous said...

Federal judges are united in their dislike for civil plaintiffs lawyers and criminal defense lawyers.

Rumpole said...

I've yet to have a federal probation officer reach out to me on a case on their own accord to get a defense version of the facts. Although many are receptive to receiving a defense proffer of facts when asked if they will review one, little of what is given them ever ends up in the actual PSR.

Anonymous said...

Isn’t it the defense attorneys job to provide or to the probation officer preparing the presentence report? Most defense attorneys don’t even show up for the presentence interviews forget about providing offense conduct material. Why aren’t defense attorneys not including it in objections and then the court can make a determination whether or not it belongs? Probation officers are always trumped by the court and by the parties. An independent judiciary has always employed probation officers at the federal level in order to give a different viewpoint. Also most of the probation officer’s that do advanced PSI’s can run circles around most lawyers as far as guidelines analysis and application from what I have seen. That’s why so many defense attorneys employee former probation officers as analysts because they can’t do the work on their own.

Anonymous said...

Probation officers will not include the defense's point of view. The response is "file an objection."

Any defense lawyer who is not present at a PSI interview is committing malpractice.

Probation officers are always "trumped" by the parties. Not in this district.

A different viewpoint? The PSI always is the AUSA's viewpoint.

"Run circles around?" You're delusional.

Any defense lawyer who hires a ex-probation officer who has spent his or her career always advocating for a higher sentence should be ashamed.


Anonymous said...

I think part of the reason POs rely on the prosecution for offense conduct is that the prosecution has the burden of proof on sentencing enhancements, unless they are undisputed. POs have no idea what the defendant did. If prosecutor says defendant stole 10 million, defense says he stole 5 million, seems like the proper way to handle it is put 10 million if there is some evidence to support that view, and allow defense to object, and then you tee up a clear dispute of fact for the Judge, where prosecution must prove the disputed point.

Since the defense has no burden to prove a sentence enhancement, im not sure asking them to opine initially is the best framework. Letting them object might better refelect the burden of proof.

But i understand defense attorneys must feel left out of the process.

Anonymous said...

We need more former PDs as Judges, like former AFPD kash patel!

Bob Becerra said...

I like DOM's idea of the lawyers submitting the guidelines analysis instead of the Probation Officers. Same for Variance arguments. Legal advocacy should be between prosecutor and defense lawyer.