The BOP and Pre-sentence Investigation Reports
The PSR is crucial. This document sets the stage for nearly every facet of the defendants incarceration. Inattention to the PSR is very costly. We help attorneys understand exactly what and how the BOP will execute the sentence and where etc.. We can also craft judicial recommendations that fit the PSR and the program needs of the defendant. When attorneys review their client’s Presentence Investigation Reports (PSRs), they may find themselves asking why the PSR provides what appears to be extraneous facts with little or no bearing on the sentence to be imposed. A minor entry in criminal history may be followed by paragraphs of details from arrest reports, while a major entry may be described in only a few lines. As United States Probation Officers are an arm of the court, by definition neutral in sentencing, it would seem PSRs should represent the complete and impartial facts intended for the court’s consideration in sentencing. That is not always the case.
As described by a former Probation Officer, the PSR is “like the Bible for the BOP. It extends way beyond the sentencing date.” Nancy Glass, The Social Workers of Sentencing? Probation Officers, Discretion, and the Accuracy of Presentence Reports Under the Federal Sentencing Guidelines, 46 No. 1 Crim. Law Bulletin Art. 2 (Jan.-Feb. 2010). Federal Rule of Criminal Procedure 32, governing sentencing, itself acknowledges that the PSR is submitted to the BOP. See FED. R. CRIM. P. 32(i)(3)(C)(providing “[a]t sentencing, the court . . . must append a copy of the court’s determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons”);
Advisory Committee Notes to 1983 Amendment providing: “If the defendant is incarcerated, the presentence report accompanies him to the correctional institution and provides background information for the Bureau of Prisons’ classification summary, which, in turn, determines the defendant’s classification within the facility, his ability to obtain furloughs, and the choice of treatment programs” and “the Bureau of Prisons and the Parole Commission make substantial use of the presentence investigation report. Under current practice, this can result in reliance upon assertions of fact in the report in the making of critical determinations relating to custody or parole”.
Given the substantial reliance on the facts contained in the PSR by the BOP, a critical role of the defense counsel in sentencing is insuring facts are both accurate and relevant to imposition of sentence. Alan Ellis, Securing a Favorable Federal Prison Placement, 30-APR Champion 22, 26 (2006). Failure to correct facts within the PSR, a record that remains with a prisoner long after a sentencing hearing is over, can have catastrophic long-term consequences.
These consequences can include restrictions on facilities based on special offender characterizations, ineligibility for desired programs, and characterization as a “sex offender” — a label that may subject a defendant to civil commitment procedures after a criminal sentence has run its course. The prospects of correcting the factual record established by the PSR process after sentencing are grim, given the minimal obligation imposed on sentencing courts to correct the PSR. See United States v. Saeteurn, 504 F.3d 1175, 1179 (9th Cir. 2007)(concluding sentencing court need only resolve factual dispute involving “matters that will affect the determination and imposition of a correct sentence” and need not resolve “disputes that will affect only post-sentence decisions and the manner and location of service of the sentence”).