In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a “blueprint” for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.
Here, in part 2, we’ll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We’ll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.
First, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer’s conclusions about them.
And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.
An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as “Criminals.” DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a “Criminal.”
Thus, its not uncommon for such a person, when being interviewed by a Probation Officer, to indicate what a horrible experience the whole DUI thing has been, and how they’ve certainly learned their lesson, and will never be back for another DUI, or anything else, ever again.
At which point the Probation Officer could raise his or her hand to stop the person, and then go on to say something like this:
“I hope you’re right. But do you see these file cabinets in my Office? I have 437 active Probation files, and more than half of them are second time, or subsequent Offenders. This means that, statistically speaking, the chances are better that you will get in trouble again, rather than that you will not.”
Does this mean that a person shouldn’t say anything like “this won’t happen again?” Of course not, but it does mean that in terms of importance, such a statement carries very little weight, and ought not to be the cornerstone of any plan to go in a proactively influence the Probation Officers perception of the person.
Alcohol and Drug cases each have a testing component in the PSI process. In DUI cases, for example, it is required that a person undergoes a mandatory alcohol assessment. This is a written test, and the results, as mentioned before, are scored. In Drug cases, there is a similar test, but its focus is, not surprisingly, on drugs, and not alcohol.
Beyond preparing for the PSI interview, which includes the gathering of detailed biographical information about the person, including to whom and where they were born, where and with whom they were raised, a person facing a DUI or Drug charge must also prepare for the alcohol assessment test, or the substance abuse evaluation that will be part of the process.
There are quite a few different kinds of tests used in these cases. More than anything else, which test is used is a matter of geography. Knowing which test is used, or not, can give a person a head start in preparing to do well upon it.
Regardless of which test is used (M.A.S.T., N.E.E.D.S., SASSI, AUP, etc.), proper preparation for it, meaning knowing how to produce a more favorable score, means knowing the 5 markers of an alcohol or drug problem:
- Family History
- Social Comment
- History of Blackouts
- Social Conflict, and
- Effects Threshold.
If a person is not well versed in these concepts, then they have not been properly prepared for any such assessment. My Clients understand what each of these 5 markers means, and how they affect the scoring of any alcohol or drug assessment test, as well as how to take that test. Anyone who hasn’t been taught these things isn’t getting the whole picture.
As a general rule, the lower a person scores on any drug or alcohol assessment test, the less likely it is that they have, or will develop a drug or alcohol problem. This means that it is important to avoid scoring “points” on the test. That seems easy enough.
Now, understand that one of the questions on any such assessment test, like that used in a DUI, is something like “Have you ever been arrested for an alcohol-related traffic offense, and if so, how many times?”
This means that a person facing a DUI will have to answer “yes,” and will have to indicate how many times they’ve been arrested for DUI, which multiplies the number of points they receive for a “yes” answer. There is very little headroom in these tests before a person crosses the line from “no problem” to being assessed as “at risk” for an alcohol (or drug) problem to develop, if there already isn’t one.
This all means, then, that if a person goes in and scores just over the mark for a risk of developing an alcohol or drug problem, it is a COMPLETE WASTE OF TIME for their Lawyer to show up on the day of Sentencing and argue that they don’t have or are not at risk to develop a problem. At that point, the die has been cast, and NOTHING the Lawyer is going to say is going to change things. Even the best, most impassioned speech to the Judge is, at this point, “a dollar short, and a day late.”
The scary thing to me is that not all Lawyers are even aware of this. Countless times, I have been told by a Client that in a previous case, their Lawyer didn’t go over any of the stuff I do. These Clients, having been down this road before, recognize how important this step was in their prior case, and have no doubt as to how important it will be in their new case. I can safely say this to anyone who has had a prior Felony or DUI case: Whatever was Recommended in your PSI is what happened to you. If there was ANY deviation from that Recommendation, it was minor, at best. You went to Court, read the report, and then stood before the Judge as he or she Ordered everything in it.
For me, I wasn’t long into the Practice of Law when I figured this out. Knowing that the PSI was essentially a “blueprint” for what was going to happen did not, however, give me any clue about what to do about that. Instead, I began “reverse engineering” the process, and began to see the connections between what the Probation Officer pointed out as important in his or her rationale for making any particular Recommendation. I spent years learning about and studying the etiology of alcoholism, and alcohol and drug problems, and the various schools of thought in treating those problems. I became, at least in my mind, a pseudo-expert in the field of alcohol and drug assessment testing, and learned how to help my Clients avoid scoring any higher than they had to on any particular test.
My interest in this field went well beyond just helping my Clients do well at Probation. As a result of my rather extensive studies, I became a highly successful Driver’s License Restoration Lawyer. I help people who have had their Driver’s License Revoked for multiple DUI’s get back on the road. Because of my knowledge of the whole panorama of alcohol and drug issues, I have accumulated a win record of 98.9% in the last 27 or so months, since I began keeping track, having won 182 out of the last 184 License Appeals I have filed. My success in License Appeals is due to my detailed knowledge of alcohol and drug assessment and treatment. It is this knowledge that has led to the success I’ve had. It is certainly not the success I’ve had as a Lawyer that led to this knowledge.
That knowledge plays a huge role in many Criminal cases, from DUI to Drug cases to Domestic Violence, where the majority of cases involve one or both parties having used alcohol (or drugs) prior to the incident itself.
In the larger PSI picture, knowledge of alcohol and drug assessment and treatment is but one facet of the process. Important as it is, I have also made it my business to learn all the other facets of that PSI process.
A line I often quote is that “good work is the key to good fortune. Winners take that praise, but losers seldom take that blame.” I take this to mean that there are no shortcuts in preparing the Client to undergo a PSI. As I noted, there is a lot to this, and most of it has gone unmentioned here, but I think that, at this point, the reader should at least be able to glean how important the PSI is in terms of the ultimate Sentence handed down by a Judge in any case.
I often say it this way to my Clients: If you go in for your PSI, and there is something in your background that might seem like an unresolved conflict (maybe you were abused as a child, or felt neglected, or whatever), or you otherwise test out as being at risk to develop an alcohol or drug problem, it doesn’t matter if you have the O.J. Simpson dream team of Lawyers, and they call the Pope, the Archbishop of Canterbury, President Clinton and President Bush Senior as character witnesses. At the end of all that, the Judge might indicate how impressed he or she is, and then look down at the PSI Recommendation and read it off, word for word, or at least darn close to it. If that PSI indicates you have an alcohol (or drug) problem, or are at risk to develop one, than you can count on making some new friends in the various classes and such you’ll be attending by Court Order.
On the other hand, if you are properly prepared for the whole PSI process, and go in and score low on any assessment test, indicating that you neither have an alcohol (or drug) problem, and that you are not at risk for one, and that you otherwise present yourself as a low risk to get in trouble again (technically called a low risk of recidivism), then your Lawyer can show up in Court with his or her lips sewn shut, and just point to the PSI and give a thumbs up, and you’ll walk out of Court having done well.
That may be a bit of an oversimplification, but it does not change the fact that the best position the Client (and Lawyer) can be in is to walk into Court, read the PSI, find a favorable (meaning lenient) Recommendation, and explain to the Judge why he or she should follow it. This is even truer when you remember that the Judge is inclined and predisposed to follow it anyway.
What happens in a Criminal Case is almost always what is Recommended in the PSI Recommendation. The best skill a Lawyer can bring to the table, once the Criminal charge itself has been settled, is to thoroughly prepare the Client for this PSI. If that’s done right, then the Client can know that they produced the best outcome possible.
If this is not done right, or not done at all, then everything is left to chance, and given the Legal Fees that Lawyers charge, that’s almost another crime in and of itself.
In the final analysis, the Lawyer’s job involves far more than just showing up in Court and talking to the Prosecutor and Judge on behalf of the Client. It also involves more than preparing the Client for the PSI. It requires the Lawyer have both the knowledge and experience with the specific Court system where a case is pending, and that the Lawyer knows not only how “they do it” there, but how that’s different from how “they do it” in other places. And this experience takes years and years to develop.
When someone asks “what is going to happen?” in a Criminal case, they are really asking, more than anything, why any particular thing will happen. And if you know how results are achieved, then you can certainly take the appropriate steps to achieve better results. As much complexity and detail as there might be here, it’s really no different than studying for a test. Learn the subject, know what’s going to be asked, and be ready.