My Probation Interview Is Next Week. What Should I Not Say?

A defendant called me about his upcoming federal probation interview. He had developed a story for his conduct that he thought was pretty good. His version accounted for much of what the government alleged, at least from his perspective.

I listened, then asked him about the people who had been hurt. What decisions would he make differently? What had he done since learning about the investigation?

He had spent a lot more time defending his conduct than examining it.

I did plenty of that myself before going to federal prison. I spent three years as a defendant, worrying about how much prison time I would receive. I had a good lawyer and a lot of time. I didn't use that time nearly as well as I could have.

Your probation interview is approaching. Your lawyer may have advised you to answer the questions, keep your responses short, and avoid volunteering unnecessary information. There are good legal reasons for that advice, particularly when questions concern disputed offense conduct.

But I've spoken with federal judges and former probation officials who have explained something I wish I'd understood in 2007: The Presentence Investigation Report is an opportunity to help the judge learn about you before the sentencing hearing.

You can influence the report by sharing who you are, what you have learned, what your plans more moving forward, in your own voice. That doesn't mean the officer will write the glowing report you want or that the judge will impose the sentence you want. I just think defendants have an obligation, a duty to prove/show why they are different than the government's one sided version of events.

What Does the Federal Probation Officer Want to Know?

Chris Maloney served as chief federal probation officer in Massachusetts and New Jersey. Michael Santos interviewed him about the probation interview, the Presentence Investigation Report, and what defendants can do before sentencing.

Chris explained that probation officers work for the court. They gather information about the offense, criminal history, employment, finances, family circumstances, education, and other aspects of a defendant's background.

The judge may have met you briefly during a change-of-plea hearing. The probation officer has far more work to do before presenting a report to the court.

Think about what the officer already has available. Court documents, the plea agreement if there is one, the government's account of the offense, and records collected during the investigation. Your personal history may be summarized in a few paragraphs unless you help develop it.

You worked for 25 years? Fine. Where? What did you do? Were you fired after the indictment? What happened when you tried to get another job?

Those details aren't necessarily in the government's documents. And the probation officer isn't going to spend months getting to know you.

The interview gives you an opportunity to supply information the officer can investigate and potentially include in the PSR.

That is why we created our Probation Report Course and interviewed Chris Maloney. People should understand how this process works before walking into the interview.

Judge Mark Bennett Told Us Something Defendants Should Hear

When Michael interviewed Judge Mark Bennett, a federal judge who sentenced more than 4,000 people during his career, Michael asked whether defendants should write a personal narrative early enough to give it to probation before the report was finished.

Judge Bennett called it "one of the best ideas I've ever heard."

He went further. He said he would be "astoundingly impressed" if he read a PSR and learned that a defendant and defense attorney had invested the time to prepare a narrative before the report was completed.

Why would that impress him?

Judge Bennett explained that he reads complicated presentence reports more than once before sentencing. By the time you stand before him, he has already read about the offense and your life. Your attorney may have an excellent sentencing memorandum, but that arrives later in the process.

I encourage defendants to prepare their narratives before the probation interview, have their attorney review the content, and work toward getting the appropriate information into the PSR.

You can read or watch Michael's interview with Judge Mark Bennett.

I wouldn't treat his comments as a guarantee of how another judge will respond. But I would take the time to understand why a judge with that much experience found the idea so impressive.

Write About the Work You Did After the Investigation Began

Your narrative should describe your background and, where appropriate, address your decisions, the offense, and the people affected. Your attorney should guide any statements concerning guilt, disputed conduct, or matters that could affect an appeal.

I also want to know what you've been doing since the investigation began.

Let's talk about employment.

You were an executive making $400,000 a year. The company fired you after the indictment. You applied for jobs, and nobody wanted to hire someone whose name appeared in a federal criminal case. Eventually, you found a position paying $55,000.

Those numbers are hypothetical, but the circumstances are familiar to people facing white-collar prosecutions.

Don't simply write that you obtained employment.

Explain what happened after losing the first job. How many applications did you submit? Did you have to call people you hadn't spoken with in years? Did former colleagues stop returning calls? Why did you accept work that paid a fraction of your previous salary?

You may have spent years managing people, and now you're doing work that someone with far less experience could perform. Did you show up every day anyway? Why?

I think that's worth telling the probation officer. It may show how you responded to losing your career and what you were willing to do to earn a lawful living.

Chris Maloney talked about employment during our interview. Work history helps probation understand how someone earns a living and fulfills responsibilities. If you couldn't find work, document your applications and rejections. Don't invent an employment history to make yourself look better.

Now consider volunteering.

What does it mean when someone writes, "I completed 100 hours of community service"?

Not much without the details.

Where did you volunteer? Why did you choose that organization? What did they ask you to do? Did you return after the first few visits? Was the work uncomfortable? Did you learn something about the people receiving help?

Some defendants pay a great deal of attention to accumulating volunteer hours and almost no attention to explaining what they did or what the result of their work was. That seems backward to me.

The same applies to restitution. If you've made payments, show the amounts and dates. If you sold something, reduced expenses, or took on extra work to make those payments, explain it accurately. Discuss your financial disclosures and any sensitive details with counsel.

Your narrative should help the probation officer understand your actions, including decisions that were difficult, inconvenient, or financially painful.

Don't manufacture any of it or lie or play the victim.

Keep Records. You May Need Them Years From Now.

Keep detailed records of your employment, job applications, volunteer work, restitution payments, counseling, and education.

Save the receipts, attendance sheets, emails, pay stubs, and letters. Organize them by date. If you volunteer somewhere every Saturday, maintain a record of when you went and what you did.

You may need these documents again.

If you go to federal prison, the Bureau of Prisons will use information in your PSR for classification, designation, and programming decisions. During supervised release, your probation officer may request records related to employment, finances, treatment, or other conditions imposed by the court.

If you owe restitution, the government's Financial Litigation Unit may request financial information during collection efforts. Keep your payment records and supporting financial documents. Depending on your case, those requests can continue long after the sentencing hearing.

You may also want to use these records someday to support a request for early termination of supervised release or another form of relief.

I wouldn't count on remembering the dates and details five years from now.

One of the things I regret about my own time before sentencing is how much work I could have documented but didn't. I later learned the value of keeping records while serving my sentence, when I began writing and documenting my activities.

You can make that habit part of your life before prison, assuming prison is where your case leads.

What Should You Avoid Saying During the Probation Interview?

You're not the victim. Most would never say, too many imply it.

I've seen narratives filled with sentences about becoming a productive member of society, learning valuable lessons, and making better decisions, only to show no evidence of lessons learned or how and why better decisions are being made.

Don't turn the narrative into a collection of slogans.

I also wouldn't walk into the interview trying to relitigate every accusation in the indictment. If you've pleaded guilty, work with your attorney on how to discuss your conduct and responsibility. If you dispute particular facts, your lawyer should determine how to address them. A probation interview is not the place to improvise a defense argument.

Be careful with phrases like "I made a mistake." I've used language like that myself. But if you pleaded guilty, can you describe the decisions you made? Can you identify who was affected? Have you thought about what you would do differently?

The defendant I described at the beginning of this article struggled with those questions. He was much more comfortable explaining why the government's version was unfair.

But you don't get much from writing a narrative that skips over every difficult question.

One other warning: don't tell the probation officer what sentence you deserve. That is a decision for the judge. Your attorney can make sentencing arguments, and you can help develop the information supporting those arguments.

What Should You Bring to the Probation Interview?

Bring what the probation officer has requested, and review the materials with your attorney before the meeting.

Depending on your situation, that may include employment records, tax returns, bank and financial information, restitution receipts, treatment records, educational documents, and evidence of community work.

Have your personal narrative ready for attorney review and discuss when and how it should be given to probation. I favor getting a suitable narrative to the officer while the PSR is still being prepared, rather than presenting it for the first time shortly before sentencing.

Don't arrive with a hundred pages of material and expect the officer to figure out why each document is important.

Organize the records. If you have proof of employment, identify the period it covers. If you made restitution payments, include a payment history. If you volunteered, identify the organization, dates, and duties.

Your attorney should also prepare you for questions about the offense. Federal Rule of Criminal Procedure 32 provides that counsel, upon request, is entitled to notice and a reasonable opportunity to attend the presentence interview.

I would not recommend that someone make statements about disputed facts, hidden assets, financial conduct, or other legally sensitive subjects without first discussing them with their attorney.

Your PSR Can Follow You Long After Sentencing

This is the part of the probation interview that I think too many defendants overlook.

Chris Maloney explained that the PSR is not used only for the sentencing hearing. The Bureau of Prisons relies on it for designation, classification, and programming. Later, probation officers supervising someone after release may refer to it.

Think about the people who could read information collected during your interview. A judge preparing for sentencing, Bureau of Prisons staff reviewing your designation and programs, and a probation officer supervising you after release.

They won't all be reviewing it for the same reason. But the document may continue influencing decisions years after it was written.

Michael Santos spent 26 consecutive years in federal prison. He wrote, studied, taught, and documented his work throughout that sentence. After his release, he received early termination of supervised release.

Michael's circumstances were unusual, and I would never suggest that his writing alone produced the court's decision. But his experience has influenced how we teach people to plan for the years ahead.

What you document today may be useful for reasons you haven't thought about yet.

Read the Draft PSR. Every Page.

After the probation officer completes the draft report, your attorney will receive it for review.

Read it yourself, several times. The offense conduct, criminal history, finances, employment, family circumstances, education, health, and other sections deserve your attention.

Judge Bennett discussed how defense attorneys sometimes rely too heavily on the government's description of offense conduct. He told Michael that defendants who presented factual disagreements supported by evidence sometimes had more accurate accounts than the government's version.

If you find an error, tell your attorney and provide supporting information. Don't assume it will be corrected automatically.

Rule 32 generally requires the PSR to be disclosed at least 35 days before sentencing unless the defendant waives that period. Parties ordinarily have 14 days after receiving it to submit written objections. Your attorney should explain the deadlines in your case.

I would much rather identify a mistake while there's time to address it than discover it after the final report has been submitted.

Your Interview Is Next Week. What Should You Do?

Start writing your personal narrative, if you haven't already. Don't hire someone to create an impressive biography that has little to do with how you actually live.

Explain your history, the decisions you've made, what has happened since the investigation began, and what you're doing now. If you've lost your job, describe what you did next. If you've volunteered, explain why you chose that work and what it involved. If you've made restitution payments, organize the records.

Get the draft to your attorney. Explain that you want the probation officer to have appropriate information before the PSR is finalized. Share Judge Bennett's interview if your attorney hasn't seen it.

If you want more instruction, we have a free Probation Report Course and interviews with Judge Bennett, Chris Maloney, and other subject matter experts.

You can also join our free weekly webinar. We discuss questions from defendants preparing for sentencing, federal prison, and the decisions that follow. Register for a webinar.

Some people use our free resources and complete the work themselves. Others hire White Collar Advice to help write the narrative, organize supporting materials, prepare for the probation interview, or develop a broader sentencing mitigation plan.

If your interview is approaching, schedule a free 20-minute call with our team. Tell us when the interview is scheduled, what you've written, and what you've done since the investigation began. We'll discuss where our team could help and what work you can complete on your own.

I had three years before sentencing. If I had understood everything Judge Bennett and Chris Maloney later taught us, I would have used those years differently.

You may have a week. Use it.

Justin Paperny
Co-founder, White Collar Advice