Scoring Criminality in the Courthouse
The latest trend in the judicial system is the courts use of diagnostic tests to determine probation conditions. The only report that used to be incorporated by the court was the Pre-Sentence Investigation (PSI). This is still used, but it is cumbersome, as it requires a full investigation of the facts of the case, victim impact and defendant characteristics. Courts don’t like cumbersome.
Typically a Pre-Sentence Investigation report takes about three months to produce, but it is thorough and allows for the defense to provide mitigating information such as character testimony and a response to factual disputes. Pre-Sentence Investigation reports haven’t exactly gone the way of the Dodo bird, but it is sighted nearly as often as a Bald Eagle.
Courts looking to expedite the process find solace in the LSIR (Level Service of Inventory Revised) and now the CAST(Centralized Assessment and Screening Team). These reports don’t go into what is often considered unnecessary detail like specific offense facts and victim impact. (However, it is still the prosecutions job to consider these factors when determining whether to offer probation in the first place.)
The LSIR and CAST are designed to focus on defendant characteristics and suggest appropriate probation conditions and programs. It assumes that probation is the appropriate resolution. The problem is that the analysis is still subjective, as it requires a human being to make these decisions. Which human makes the call turns out to be the luck of the draw.
In addition, the human who makes the call does know about the facts of the case since a copy of the offense report is provided to the human tasked to the analysis. Therefore, in a case involving possession of an ounce of cocaine, for example, it is likely that the human scoring the CAST will presume that drug treatment is necessary irrespective of all the other information provided to him.
I’ve had clients with almost identical backgrounds and facts get pegged with diametrically different conditions. Drug treatment, for example, can be as simple as counseling or narcotics anonymous. It can get burdensome, such as out-patient treatment. Or it can be downright intrusive, such as the State provided treatment programs, which involve six months or more of incarceration.
I recently had similar clients on drug cases; one was ordered to attend out-patient treatment and another was sent to PEDEN for six months. Both of these clients had jobs, families and minor criminal records. Their age was similar. The drugs were the same and within the State Jail range. Both admitted to using the drugs recreationally. The only substantive difference I could determine was gender.
As I have stated previously on this blog in discussing the LSIR, the danger of this pre-sentence analysis is the timing. In many courts, the plea is taken first and then scheduled for sentencing. This is when the CAST is ordered. At sentencing, many Judges take the recommendations of the probation department as gospel, despite the devastating impact that incarceration would have on the defendant.
There are ways around this. I have taken to stacking the deck. If I am in a court that rubber-stamps CAST recommendations, I will approach the Judge first and discuss the option of withdrawing our plea if the CAST analysis is unconscionable. Often times this discussion will elicit an agreement not to send my client to in-patient or some other unnecessary condition. If the Judge refuses any variation, I inform my client of the danger and let him decide whether the plea is worth the gamble. Sometimes it is.