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Last Updated on: 20th October 2023, 09:16 pm
The federal probation office plays a big role in sentencing for federal crimes. They investigate offenders and make recommendations to the judge on sentencing. Knowing how they work can help defense attorneys advocate for their clients.
After a conviction, the probation office does a presentence investigation on the offender. This involves interviewing the defendant and gathering info about their background, criminal history, financial situation, mental health, and more. The probation officer then writes up a presentence report to give to the judge before sentencing.
The report includes things like:
This report heavily influences the judge’s sentencing decision. So it’s important for defense attorneys to review it and object to any errors or bias. You can submit information to the probation officer to present your client in the best light. And file formal objections to the final presentence report.
A big part of the presentence report is the probation officer’s recommended sentence. This includes whether incarceration is recommended and if so, for how long. It also covers things like fines, restitution, probation terms, and special conditions.
The recommendations are based on the U.S. Sentencing Guidelines. The guidelines provide a formula to calculate sentencing ranges based on the offense level and defendant’s criminal history. But they are advisory, not mandatory. The judge has discretion to depart from them.
Still, judges often defer to the guidelines and probation office recommendations. So defense attorneys should understand how the guidelines work in order to argue for the lowest sentence possible.
You can challenge the recommended offense level or criminal history score if they seem incorrect. Pointing out mitigating factors and grounds for a downward departure from the guidelines can help too.
Defense attorneys should advocate for alternatives to incarceration whenever appropriate. Things like probation, home confinement, community service, and rehab programs. Highlight your client’s strengths and low risk factors to argue against jail time.
The probation officer may be willing to recommend these alternatives, especially for first-time or low-level offenders. But they tend to take their cues from the prosecutor, so getting the AUSA onboard is key.
For offenders with substance abuse issues, emphasize treatment programs over incarceration. Drug courts and other problem-solving courts may provide supervised probation and mandated treatment.
In some cases, you can make compelling arguments for a sentence outside the guideline range:
Downward variances are common, especially after Booker made the guidelines advisory. But you have to show mitigating circumstances warrant a lower sentence. Upward variances are rare and harder to justify.
Get creative in arguing for departures and variances. Dig into the guidelines manual for grounds. And highlight individualized, case-specific factors for a variance.
Probation officers have other roles beyond sentencing recommendations:
They can be a resource for clients both before and after sentencing. Building rapport with officers helps, as they tend to have large caseloads.
Overall, understanding the role of federal probation can help defense attorneys advocate effectively at sentencing. Partnering with the probation office when possible leads to better outcomes.
U.S. Sentencing Commission. “Guidelines Manual.” https://www.ussc.gov/guidelines/2018-guidelines-manual. Accessed October 20, 2023.
U.S. Department of Justice. “Pretrial Diversion Program.” https://www.justice.gov/usao-wdwa/pretrial-diversion. Accessed October 20, 2023.
U.S. Department of Justice. “Justice AmeriCorps.” https://www.justice.gov/usao-ndca/justice-america. Accessed October 20, 2023.
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