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Presentence Reports and Sentencing Plans

August 27th, 2010
By Jamie Markham

In 2009 the General Assembly ordered the Administrative Office of the Courts and the Department of Correction to study the feasibility of conducting presentence investigations on “all offenders convicted of felonies for which the sentencing judge has the option of intermediate or active punishments.” S.L. 2009-451, sec. 19.14. The study was completed earlier this year, and a report on it is available here. It’s not the first time the issue has been studied. A similar report was completed in 1988 pursuant to Chapter 19 of the 1987 Session Laws, which ordered AOC to study whether presentence reports “should be mandatory for any, or all, offenses.” You can read that report here.

Both studies were prompted—at least in part—by recognition of the fact that far fewer presentencing reports are done in North Carolina than in most other states. In some jurisdictions they are all but mandatory, at least for certain crimes or categories of offenders. Both study reports posit that one reason presentence reports might be rare in North Carolina is that some in our criminal justice system simply don’t know what options are available for obtaining additional information about a defendant before sentencing. This post summarizes the options.

Presentence Investigation (PSI). Under G.S. 15A-1332(b), a court may, after conviction, order a probation officer to make a presentence investigation of any defendant. When a PSI is ordered a probation officer must “promptly investigate all circumstances relevant to sentencing and submit either a written report or an oral report either on the record or with defense counsel and the prosecutor present.” The PSI can include sentencing recommendations if the court requests them. On the defendant’s motion the investigation can take place before conviction; such motions are addressed to the judge of the session of court for which the defendant’s case is calendared or, if the case hasn’t yet been calendared, to a resident superior court judge in the district or the chief district court judge, as appropriate. When a person has been convicted of an offense involving impaired driving, the judge may, under G.S. 20-179.1, request a presentence investigation to determine whether the defendant would benefit from treatment for habitual use of alcohol or drugs. In DWI cases, it appears that no presentence investigation may be ordered if the defendant objects. Id.

By default, a probation officer will conduct the study in accordance with Division of Community Corrections policy, assessing factors such as the offender’s health, family and social history, criminal history, history of substance abuse, employment status, and educational background. In practice, however, the judge can adopt something of a cafeteria plan approach, specifying the particular types of information he or she desires. For the 2010 study, DOC used a streamlined PSI template, an important component of which is DOC’s Offender Traits Inventory (OTI), an assessment tool that predicts an offender’s likelihood of re-arrest (and it does so pretty well, by the way, as you can read about here).

Presentence Commitment for Study, or Presentence Diagnostic. If the court wants more detailed information than can be obtained in a PSI, it may, in certain cases, commit a defendant to DOC for a presentence diagnostic study. Under G.S. 15A-1332(c), the court can order a presentence commitment only when the defendant has been charged with or convicted of a felony, a Class A1 or Class 1 misdemeanor, or a crime for which he or she may be imprisoned for more than 6 months. Whether pre- or post-conviction, a presentence commitment may only be ordered with the defendant’s consent (unless the commitment is for a sexually violent predator investigation under G.S. 14-208.20). The commitment must be for the shortest period of time necessary to complete the study, but in no case may it exceed 90 days. When the study is complete the defendant is released from DOC back to the sheriff of the county in which his or her case is pending, with the same conditions of pretrial release that existed before the commitment (unless they are modified).

Presentence commitments can be arranged through DOC’s Diagnostic Classification Program, and the court can use form AOC-CR-232 to order the commitment. The locations at which DOC conducts diagnostics, including their rough target population are: (1) N.C. Correctional Institution for Women, Raleigh (female felons); (2) Fountain Correctional Center for Women, Rocky Mount (female misdemeanants); (3) Central Prison, Raleigh (male felons age 22 and older facing sentences of 10 years or more); (4) Piedmont Correctional Institution (CI), Salisbury (male felons from the Western/Piedmont counties, age 22 and older, facing sentences under 10 years); (5) Craven CI, Vanceboro (male felons from the Eastern/Central counties, age 22 and older, facing sentences under 10 years); (6) Polk CI, Butner (male felons between ages 18 and 25); (7) Western Youth Institution, Morganton (male felons age 18 and younger and misdemeanants under age 22); (8) Neuse CI, Goldsboro (male misdemeanants age 22 and older).

Sentencing Plan through a Sentencing Services Program. Sentencing Services is a consortium of nonprofit and state-operated agencies that provides sentencing plans for certain offenders. A sentencing plan is a written report to the sentencing judge that assesses a defendant’s background and then matches his or her needs to available resources. G.S. 7A-771(3a). Plans may also make a recommendation regarding an intermediate punishment. The court may, at any time prior to sentencing, request a sentencing plan for a defendant who (a) is charged with or has been offered a plea for a felony offense for which active time is authorized but not required (i.e., offenders who fall within an I/A or C/I/A cell on the felony punishment chart); (b) has a high risk of committing future crimes without some form of intervention; and (c) would benefit from the preparation of a comprehensive sentencing plan. G.S. 7A-773. Before a guilty plea or verdict, the defendant himself or herself may initiate a request for a plan—in fact, about three-quarters of plan requests start that way—and so may the prosecutor, although that is pretty rare. In misdemeanor cases involving a Class A1 or Class 1 misdemeanor and a prior conviction level III defendant, the court (and only the court) can request a plan. G.S. 7A-773.1. Sentencing Services programs, which are organized under the Office of Indigent Defense Services, are available in over half of North Carolina’s counties. Form AOC-CR-613 can be used to request a sentencing plan. More information about Sentencing Services, including a sample plan, is available in a 2010 report available here.

Finally, some administrative details about all reports and plans. Presentence reports and sentencing plans are not public records, and they may only be made available to the defendant and his or her lawyer, the prosecutor, and the court. On the defendant’s motion the court may, in its discretion, order that a report or plan be expunged from the record. G.S. 15A-1333. If a sentencing plan is completed before conviction, the information obtained in the course of preparing it may not be used by the State for any purpose at trial. G.S. 7A-773.1(d). And finally, to account for the fact that superior court judges rotate through different districts in North Carolina, a judge who orders a presentence report may, in his or her discretion, direct that the sentencing hearing in the case will be held before him or her in another district during or after the session in which the defendant was convicted. G.S. 15A-1334(c).

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One Response to “Presentence Reports and Sentencing Plans”

  1. Prosecutor says:

    Here are the problems with a PSI:

    1. Probation and Parole does not have the resources and manpower to do the job they are supposed to do already. This is going to do one of two things: a) take resources away from supervision of probationers, or b) substantially delay the amount of time it would take to properly produce a PSI. Which leads me to…

    2. This will delay the criminal justice system even further than it already is. Now, we will have to delay sentencing for months at a time while we wait for a report to be completed. This *will* become a standard delay tactic in the defendant’s bag of tricks to put off the inevitable. It also means yet another calendar of cases to deal with, and an even longer wait for victims of crime to get closure on their cases.

    3. Structured Sentencing really eliminates the value of a PSI. The sentencing grid is so precise as to what type of probation is available per defendant, and what specific terms of probation are required, that I do not see how a PSI would substantially change what a judge can offer. Most of my cases fall within an I/A block, so I know going in that if I agree to probation, then there will be an intermediate sanction. Also, when I make a probationary plea offer, I lock in the conditions of probation as part of the plea. I base those conditions on the facts of the case and the defendant’s record, not on the fact that the defendant had his lunch money stolen when he was in fifth grade and has resented it ever since. And my plea offers mostly spell out the exact conditions of probation I will agree to. I have never seen anything of value in a PSI that would change any of that, and I have seen many of them, which brings me to my fourth point…

    4. I used to practice in a state where most judges would order a PSI prior to sentencing, and when they were finally completed (several months later), the judge would pretty much ignore the recommendations and give the same sentence he would have done anyway (most judges there were very predictable with sentencing, as most judges are anywhere). All it wound up doing was dragging the process out for another six months, and making victims wait even longer for resolution to their cases.

    If the Legislature wants to get back into doing PSIs, then they should fund Sentencing Services, since those reports are pretty much the same thing as a PSI. Going that route would at least free up Probation and Parole to do the job they were intended to do.

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