Disclaimer: This post is not intended to disparage United States Probation Officers. They are diligent in, and good at, their duties.

A conviction for the commission of federal crime(s) is finalized with a fundamentally flawed sentencing process.  There are arguments to be made about many aspects of the sentencing process in federal court. For example, the Sentencing Guidelines are outdated and unduly harsh; the inability to expunge a federal conviction ensures a lifelong stigma that cannot be erased, irrespective of one’s rehabilitation. 

This post’s focus will be an evaluation of the effect that the United States Probation Department has on sentencing.  Federal probation officers have assumed a role, which, for all intents and purposes, is more powerful than the U.S Attorney’s role, and just less than that of the judge.

After one is convicted of federal crimes, and before the defendant’s sentencing, the individual is interviewed by a probation officer, who then generates and submits a PreSentence Investigation Report (PSR). The PSR is one of the most important documents to one convicted of federal crime. The Report is critical during sentencing and the subsequent classification category of an offender in his place of incarceration. 

A Presentence Report is a detailed history of the relevant background of the defendant. The Report summarizes the offense conduct as well as background facts about the defendant. In the PSR, the probation officer notes the Guidelines’ calculation for the crimes of which the defendant has been convicted. The officer also adds points, which increase one’s time of incarceration, in areas where the officer believes that (based on the precepts of the United States Sentencing Guidelines) an enhancement is warranted. The officer also has the ability to recommend downward adjustments to a sentence. Such a recommendation is rare. 

Thus, despite the PSR’s awesome importance, an impartial judge does not generate the Report in the case.  The Report is not authored by the Assistant United States Attorney, who has spent months, if not years, with the case. Instead, a U.S. Probation Officer writes a defendant’s PSR. As a result, the United States Probation Office has assumed a quasi-prosecutorial/quasi-judicial role in the sentencing process because, in 99% of cases, the AUSA (i.e., the prosecutor) adopts the PSR’s recommendation for the defendant’s sentence. The defense has the power to object to the information contained in the Report, but such objections are rarely successful to any impactful degree. 

The judiciary should scale back the role of the United States Probation Office. The duties of probation officers should be supervisory: both pre- and post-trial. A PreSentence Report should be compiled by a truly unbiased source and limited to the details on the defendant’s background. It is the prosecutor’s job, not a probation officer, to find areas for, and then argue for, enhancement of the sentence. 

As the country continues its dialogue on mass incarceration, we must re-visit and change the federal courts’ sentencing process’s broken policies and procedures.