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Pre-Sentence Investigations and Sentencing Hearings

Any time a person is convicted of a crime--whether a case goes to trial and is lost, or the defendant takes a plea deal--the next step is for the judge to impose sentence. This happens at the sentencing hearing. In most serious felony cases, a judge will order a pre-sentence investigation, often referred to as a "PSI," be conducted by the Department of Corrections (the "DOC"). What exactly is a PSI? What is its purpose? What effect does it have on a case and on sentencing?

What It Is

A PSI is two things. First, it is an actual "investigation" conducted by a probation and parole agent from the Department of Corrections. The agent looks into the background and history of the defendant, including criminal history. The agent interviews the defendant and perhaps the defendant's family members, as well as the victim and perhaps the victim's family members. Second, it is a formal document that is drafted by the DOC agent that contains the results (or at least some of them) of the investigation. This document can vary in length depending on several factors, including type of offenses, length of criminal history, willingness to speak with the investigator, and other factors. The PSI report is confidential, meaning that it is only sent to the judge, the prosecutor, and the defense attorney.

The Report Itself

The document has several different portions. The first portion details the defendant's name, age, height, weight, and other clerical information, including the current charges the defendant has been convicted of. Other information in this section includes permanent marks, like scars or tattoos, and any known gang affiliations and aliases. The next portion of the PSI gives a summary description of the facts of the present offense(s), and then the defendant's version of events. This portion will also list any other past criminal convictions, time spent incarcerated, and any other pending charges. The defendant is also afforded an opportunity to explain or dispute any past criminal charges and periods of incarceration.

The next section usually covers the defendant's family background and life history, which details information such as who family members are, their ages, background, and any contact they have had with the criminal justice system. In this portion of the PSI the writer will also address familial and residential stability, values, and attitudes held by the family of the defendant, which leads into the next portion of the PSI, called the Personal History.

This section is essentially a biography provided by the defendant; this portion of the PSI can be a few sentences to several pages long depending on how much information the defendant provides. Additional areas that will be touched on in this section will include employment, financial, and relationship history, health concerns, mental ability, substance use, etc.

The final section in the PSI is the summary and conclusion. This portion serves to sum up the information received by the writer, an actuarial assessment tool called COMPASS that purports to give insight into risk factors relevant to the defendant and to his or her likelihood to reoffend, and the agent's recommendation for sentencing, unless the court orders the PSI to be done without a sentencing recommendation. Also included towards the end of the document is a section usually called "Agent's Impressions," in which the writer offers his or her subjective, personal views on the defendant's acceptance of responsibility, remorsefulness, and general attitude. In our view, DOC agents--who may well have some manner of expertise on how the Department of Corrections itself operates, or at least on how probationers are supervised within it--generally lack legitimate expertise, knowledge, or professional training to form a basis for offering these kinds of opinions, but it is typical for them to offer them regardless. Judges or prosecutors may or may not put much stock in the personal, subjective opinions of the agent.

What Is The Purpose of a PSI?

There are several purposes to a PSI. The main function is to provide the court (meaning the judge) with sufficient information about the defendant so that the judge can sentence the defendant consistent with the factors required under Wisconsin state law, those being the gravity of the offense, the need to protect the public, and the character of the offender.

The PSI allows a defendant to give their version of events, not only about the current criminal convictions, but the broader history of his or her life and any influences that may have had an effect on the defendant and his or her actions. The PSI also gives the defendant an opportunity to accept responsibility for his or her actions and to express remorse. It should be noted that a defendant does not have to make any statements to the writer; a defendant is free to decline or refuse to comment, in which case the writer will attempt to gather information from any documents or records that he or she has access to.

The PSI also allows the victim to weigh in on how a crime may have impacted him or her in both the short and long term, and to express an opinion about what the sentence ought to be. The victim also has the right to address the court directly at the sentencing hearing, which is held after the PSI is completed. The defendant also has the right to address the court directly at the sentencing hearing.

Finally, the purpose of the PSI is to take the defendant's and victim's versions of events, as well as any other information from third parties, to form a broad picture of the defendant and his or her actions, and in doing so, usually to make a recommendation to the court about what an appropriate sentence would be.

What Effect Does This Have on Me?

The effect of the PSI on any given case varies. While the agent who wrote the PSI may make a sentencing recommendation, the judge is not legally bound in any way to follow the recommendation. In some sentencing hearings, the judge references the PSI frequently and adheres closely to the recommendation. In others, the agent's impressions and recommendation are barely mentioned by the prosecutor or the judge and the sentence the court imposes differs substantially from the recommendation. It is very common for the judge and the prosecutor to rely upon the factual information in the PSI to form the basis for their comments on and views of the case and the appropriate sentence.

The most tangible benefit that a PSI can have is to provide a broader picture of the defendant. It can provide positive information about the defendant or contributing factors to the defendant's actions. It can provide a forum for people like the defendant's family, friends, and employers--people who really know the defendant and can speak positively about his or her qualities--to voice support for the defendant. In addition, the sentencing recommendation can provide a baseline for sentencing, typically with a defense attorney arguing for the lower range of the recommended sentence, with a prosecutor arguing for the higher end.

While a PSI may come back and be helpful to a defendant, in other cases it may not. Sometimes we get a PSI and are surprised at how low the recommended sentence is. When that happens, it is helpful to our cause at the sentencing hearing. Other times, the recommended sentence is much higher than we feel is appropriate. One option at this point is to hire a professional who can conduct what is called an "independent" or "defense" or "alternate" PSI. This PSI may come back more favorable to the defendant. An independent sentencing consultant may do more research into the defendant's life, history, and the factors underlying the criminal behavior than the DOC agent was able or willing to do. In cases with specific concerns about mental health disorders, substance abuse issues, or sexual dysfunctions, the individual writing the alternate PSI is usually a professional with a background in this area, and can offer specific insights, backed by social science research, into the likelihood of reoffending, specific treatment needs, negative effects of incarceration or sex offender registration, and other case-specific factors

A sentencing hearing is a pivotal moment in one's case. The difference in arguments can sometimes be measured in years or decades of incarceration, or the difference between incarceration and probation. If you or someone you know is currently awaiting sentencing, Nicholson & Gansner, S.C. may be able to help you. Call us for a free consultation.

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