Recommendations for Implementation

The presentence investigation (PSI) report, prepared by the probation office, provides the sentencing judge with information about the offender so that an informed, individualized sentencing decision can be made.  According to ABA standards, the court should order a PSI when it "lacks sufficient information to perform its sentencing responsibilities," or upon the motion of either the prosecution or defense.[1]  In Washington, state law requires the court to order a presentence report before imposing a sentence when the court determines that the defendant may have a mental illness. 

A PSI can better inform the court of individual case nuances to be considered in ordering case-specific conditions of probation.  The information presented in the PSI report should be neutral; that is, it should include both mitigating and aggravating factors.  According to the American Probation and Parole Association (APPA), the PSI should cover the following items:

• a description of the offense and circumstances surrounding it;
• a description of the status of any victim, including the impact of the crime on the victim;
• the offender's complete prior criminal record;
• the offender's social history, including family status and residence history;
• the offender's educational background and employment history; and
• the offender's medical history.[2]

The ABA standards state that PSIs should not become part of the public record.  Distribution of the reports should be limited to the sentencing court, the prosecution and defense, and to the entity (i.e., probation, jail, or prison) that will be responsible for supervising the offender.[3]   Many states have statutes or court rules that specify that the contents of presentence reports, including any mental health information, are confidential and may be disclosed only to the court, prosecution, and defense.  Most states permit the disclosure of their reports to correctional institutions that will be housing the offenders for use in classification.[4]

As noted earlier, communications between mental health providers and their clients are protected from disclosure without written consent from the client authorizing the release of information.  Furthermore, the offender has the right to refuse to answer any or all of the questions asked by the probation officer during a PSI interview and offenders with a mental illness need to understand this right.  Refusing to cooperate with a PSI interview, however, may be counterproductive, so the offender should obtain guidance from the defense attorney on how to proceed before the presentence investigation begins.

It is the obligation of the probation officer conducting the PSI to verify information contained in the report.  As a result, if the offender indicates that he or she is in mental health treatment, the probation officer must verify that with the treatment program.  To do so, the offender must authorize the release of information to the probation officer.  The probation officer and defense counsel should work together to assure that necessary written consents have been signed.  The information the probation officer receives from a treatment program should include the offender's diagnosis, treatment recommendations of the attending clinician, and progress with treatment.

When an individual's mental illness is already known, these reports should include information about any diagnosis that has been made, current and past treatment, and the resources available in the community that can help the offender refrain from engaging in the same or similar conduct that led to the arrest.  At least one jurisdiction assigns specially trained probation officers to these tasks.

Example:  Probation Department, Orange County (CA)

In Orange County probation officers specializing in mental health cases develop individualized integrated service plans and present them in the PSI that can include social services, housing, and medication as well as treatment for those with co-occurring mental health and substance abuse problems.

The capacity to have that assessment done in a timely manner by a qualified professional should be available.  The assessment should be conducted on an outpatient basis whenever possible.  An inpatient assessment should be necessary only when the person poses too great a risk of injury to others or to him or herself, or of failure to report to court or to the assessment.  In determining whether such risks exist, the judge should consult the prosecutor, defense attorney, probation officer, and any available mental health records.

Just as identifying those with co-occurring disorders is important for other decisions in the court process, it should also be done at sentencing.  See the discussions on this topic under Policy Statement 10: Modification of Pretrial Diversion Conditions and Policy Statement 11: Pretrial Release/Detention Hearing (also Policy Statement 29: Training for Court Personnel).

Those people with mental illness who have been in pretrial detention throughout the processing of the case, assuming that the recommendations included in Chapter 4: Incarceration and Reentry of this document have been implemented, would have received mental health services while in jail.  It is common for misdemeanants who have not been released pretrial (either by judicial decision or for inability to meet bail) to be found guilty of a crime and to be sentenced to time served.  At this point, they will be released from custody and need have no more involvement with the criminal justice system regarding that particular offense.  It is important that some discharge planning have been undertaken for such offenders, to ensure that their release will lead to a successful reintegration in the community with appropriate treatment and services.  Without such discharge planning, the likelihood of their returning to the criminal justice system in short order is greatly increased.    

Some of those who have been on pretrial release while the case was being adjudicated, assuming the implementation of the recommendations in this section, would have mental health conditions attached to their release.  As a start, the same options that exist for the pretrial release decision should also exist for the sentencing decision.  Additionally, once the individual has been convicted, the court has more authority to order mental health treatment.

Example:  Project Link, Monroe County (NY)

In Monroe County, Project Link has developed a close working relationship with the probation department to identify offenders most in need of mental health services.  It has a mobile treatment team, consisting of a psychiatrist, nurse practitioner, and five culturally diverse case workers, that is available 24 hours a day to focus on 40 of the most serious cases.      

Before ordering treatment as a condition of the sentence, the judge should, as specified in ABA sentencing standards, determine that the offender "will participate in and benefit from" the treatment program.[5]  The judge should also determine whether the offender needs mental health services.

(See Policy Statement 10: Modification of Pretrial Diversion Conditions and Policy Statement 11: Pretrial Release/Detention Hearing, for more on this topic.)