Dear Honorable Salavantis,
The County Chief Adult Probation and Parole Association’s, Pa Partnership for Criminal Justice Leadership Team, Mark Bergstrom, and I present to the members of the Criminal Procedural Rules Committee, our recommended suggestions on the modifications to Pennsylvania Rules of Criminal Procedure, Rule 702 (Aids in Imposing Sentence).
BACKGROUND
Criminal courts in Pennsylvania are required to individualize sentences. The Supreme Court, in Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), linked this policy to the general provision contained in the Sentencing Code that requires the court to consider the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant when imposing a sentence. The Court held…
At least two factors are crucial to such a determination – the particular circumstances of the offense and the character of the defendant… We hold that regardless of whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in its sentencing determination. Failure to give such individualized consideration requires that these sentences be vacated.
Obviously, the extent and contents of a pre-sentence inquiry will vary depending on the particular case. A more extensive and careful investigation is clearly called for in felony convictions, particularly where long terms of confinement are contemplated. Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976).
The Court then directed the Criminal Procedural Rules Committee to prepare a recommendation for amending the Rules of Criminal Procedure consistent with the ABA Project on Minimum Standards of Justice (Approved Draft, 1968), which recommended that a pre-sentence report is particularly necessary where incarceration is for one year or more, where the defendant is less than 21 years of age, and where the defendant is a first-time offender. These minimum standards, also provided in the Model Penal Code (1962), are found in the current Rules (Pa.R.Crim.P. Rule 702(A)(2)) as a requirement that the sentencing judge place on the record the reasons for dispensing with the pre-sentence investigation (PSI) report when any of these circumstances are present.
In 1978, the General Assembly amended the Sentencing Code, 18 Pa.C.S.§1321 (relating to sentencing generally)[1], to require a more detailed consideration of individual factors, to require that the Court consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing, and to make as part of the record and disclose in open court at the time of sentencing the reason or reasons for the sentence imposed (Act 319 of 1978).
A decade later, the Supreme Court, in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), restated the philosophy of individualized sentencing, while rejecting the need of a detailed explanation of the sentence where a pre-sentence report exists. Regarding pre-sentence investigations, the Court noted…
Today, of course, ordering of pre-sentence investigation reports is the practice everywhere. We are indebted to Martin-Riggins for teaching the judiciary that a convicted defendant cannot be sentenced on the basis of the crime alone and that a full pre-sentence report informs the sentencing procedure.
Commonwealth v. Devers, 519 Pa. 88, 101, 546 A.2d 12, 18 (1988).
Although the Devers Court suggested that ordering a PSI report is common, the reality is that PSI reports are ordered in less than a third of cases sentenced in Pennsylvania[2]. And many of the PSI reports prepared do not include the “essential and adequate elements” identified by the Pennsylvania Superior Court in Commonwealth v. Goggins, 748 A.2d 721 (2000), which quotes the ABA Project on Minimum Standards of Justice, such as:
(A) a complete description of the offense and the circumstances surrounding it, not limited to aspects developed for the record as part of the determination of guilt;
(B) a full description of any prior criminal record of the offender;
(C) a description of the educational background of the offender;
(D) a description of the employment background of the offender, including any military record and including his present employment status and capabilities;
(E) the social history of the offender, including family relationships, marital status, interests and activities, residence history, and religious affiliations;
(F) the offender’s medical history and, if desirable, a psychological or psychiatric report;
(G) information about environments to which the offender might return or to which he could be sent should probation be granted;
(H) supplementary reports from clinics, institutions and other social agencies with which the offender has been involved;
(I) information about special resources which might be available to assist the offender, such as treatment centers, residential facilities, vocational training services, special
educational facilities, rehabilitative programs of various institutions to which the offender might be committed, special programs in the probation department, and other
similar programs which are particularly relevant to the offender’s situation;
(J) a summary of the most significant aspects of the report, including specific recommendations as to the sentence if the sentencing court has so requested.
Commonwealth v. Goggins, 748 A.2d 721, 728, 729 (2000).
In 2007, the Conference of Chief Justices and the Conference of State Court Administrators enacted a resolution in support of the use of validated offender risk and needs assessment (RNA) tools, that “offender risk and needs assessment information be available to inform judicial decisions regarding effective management and reduction of the risk of offender recidivism.”[3] As described by the National Center for State Courts (NCSC):
RNA instruments are actuarial tools designed to inform community corrections-related decisions regarding risk management and reduction. They consist, in part, of static factors such as criminal history and age at first offense which are related to recidivism but cannot be altered through the delivery of services or treatment programs. In addition, and more importantly for recidivism reduction purposes, the tools identify dynamic risk factors (sometimes referred to as criminogenic needs) such as antisocial attitudes and antisocial peer groups that also are related to recidivism but can be addressed through services and treatment programs. Information from these tools assists in identifying specific offender risk factors that can be targeted with services and treatment programs in order to help reduce an offender’s likelihood of reoffending.[4]
As described by the NCSC, these RNA tools risk, as well as more advanced tools that address responsivity (RNR), may be used to suggest an appropriate disposition or conditions of community supervision, and may be incorporated into pre-sentence investigation reports (RNR-PSI).
The information available through an RNA or RNR address “essential and adequate elements” of a PSI, but also provide a mechanism for weighing factors and testing the findings and recommendations through validation.
In 2017, the American Law Institute (ALI) adopted the Model Penal Code: Sentencing (MPCS), which includes new provisions related to sentencing guidelines, sentencing commissions, and the consideration of evidence-based sentencing (Offender Treatment Needs and Risk of Reoffending). Section 6B.09 addresses both actuarial instruments to identify risk as well as processes to assess the needs of offenders for rehabilitative treatment. The MPCS recommends when these instruments or processes prove sufficiently reliable, commissions may incorporate them into the sentencing guidelines.
In 2019, following a decade of development and validation, the Pennsylvania Commission on Sentencing adopted a sentence risk assessment instrument. Incorporated into the sentencing guidelines, the instrument is used to identify low-risk and high-risk cases for which the court is encouraged to obtain additional information prior to sentencing. The additional information may assist the court in determining an appropriate and individualized sentence, including the suitability of various sentencing alternatives and programs as well as the duration and intensity of supervision. In 2023, the commission adopted revised sentencing guidelines, which consistent with the MPCS, recommends the use of validated risk, needs, and responsivity and related evidence-based practices to guide the decisions related to the intensity and duration of community supervision. This same information may be used to inform departures from the guidelines.
In a separate but complementary effort, the County Chief Adult Probation and Parole Officers Association of Pennsylvania embarked on an Evidence-Based Practices initiative to improve, extend, validate, and standardize the use of RNA and RNR assessments by county probation departments. In the many counties that have developed and validated the use of these instruments, they have supported effective community supervision strategies by focusing the use of limited resources on high risk-high needs cases and reducing the duration of terms and intensity of conditions on low risk-low needs cases. In tandem, the commission’s risk assessment may serve as a screening tool to target cases, and probation departments’ more detailed assessments may serve to inform the court regarding conditions to meet individualized risk, needs, and responsivity. But for this to work best, all information… the sentencing guidelines, the risk assessment recommendation, and the RNA/RNR with or without a PSI when recommended… must be available to the court prior to sentencing.
RECOMMENDATION
It is recommended that the Rules of Criminal Procedure be amended to encourage consideration of validated RNA or RNR assessments prior to sentencing, especially in those cases identified as low-risk or high-risk cases by the commission’s sentence risk assessment instrument and for which the sentencing guidelines include “additional information recommended.”
It is also recommended that the Rules of Criminal Procedure be amended to provide and/or encourage the incorporation of RNA or RNR assessments into pre-sentence investigation reports (RNR-PSI).
SUGGESTED AMENDMENT TO RULE 702
Rule 702. Aids in Imposing Sentence
(A) Pre-sentence Investigation Report
(1) The sentencing judge may, in the judge’s discretion, order a pre- sentence investigation report in any case.
(2) The sentencing judge shall place on the record the reasons for dispensing with the pre-sentence investigation report if the judge fails to order a pre-sentence report in any of the following instances:
(a) when incarceration for one year or more is a possible disposition under the applicable sentencing statutes;
(b) when the defendant is less than 21 years old at the time of conviction or entry of a plea of guilty; or
(c) when a defendant is a first offender in that he or she has not heretofore been sentenced as an adult.
(3) The pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence, and when available shall include a validated risk and needs assessment (RNA) or a validated risk, needs, and responsivity (RNR) assessment.
(4) The pre-sentence investigation report shall also include a victim impact statement as provided by law.
(B) Psychiatric or Psychological Examination. After a finding of guilt and before the imposition of sentence, after notice to counsel for both parties, the sentencing judge may, as provided by law, order the defendant to undergo a psychiatric or psychological examination. For this purpose, the defendant may be remanded to any available clinic, hospital, institution, or state correctional diagnostic and classification center for a period not exceeding 60 days.
(C) Risk and Need Assessments.
(1) The sentencing judge may, in the judge’s discretion, order a validated pre-sentence risk and needs assessment (RNA) or a validated pre-sentence risk, needs, and responsivity (RNR) assessment in any case.
(2) The sentencing judge shall place on the record the reasons for dispensing with the validated pre- sentence risk and needs assessment (RNA) or a validated pre-sentence risk, needs, and responsivity (RNR) assessment if the judge fails to order a validated pre-sentence assessment when the sentencing guidelines include “additional information recommended.”
It is important to note, that in several states, the use of assessment information, through statewide data collection, are analyzed to inform legislative reviews, revisions to the crimes code, and the development of a sentencing matrix (i.e., recommended supervision period, reporting frequency, drug testing frequency and programming attendance to name a few). Coincidentally, the Pennsylvania Commission on Sentencing is required by statute to establish a program to systematically monitor compliance with the guidelines and the risk assessment instrument 42 Pa.C.S.§2153(a)(14)), to evaluate the effectiveness and cost-benefit of various criminal justice interventions and programs (42 Pa.C.S.§2153(a)(16)(v)), and to provide interactive information to support decisions with risk and recidivism information (42 Pa.C.S.§2154(e)). The Commission developed and deployed SGS Web, a JNET-based application utilizing data exchanges with the Common Pleas Case Management System (CPCMS), accessible by all common pleas courts and used to prepare guidelines, automate the generation of the risk assessment, and report sentences and other required information to the Commission. The rebuilding of SGS Web, presently underway to support integrated guidelines, provides a platform for improved collection and analysis of RNA and RNR information and outcomes, and creates a mechanism for county-specific and statewide data management.
In conclusion, we would like to thank the Criminal Procedural Rules Committee Members in advance for your time and consideration with our suggested modifications for Rule 702. If warranted, we would also be honored to present to the committee on this request.
___________________________________ ________________________________
Chadwick J. Libby Mark H. Bergstrom
[1] This entire chapter was later transferred to Title 42.
[2] In 2018, 22,083 pre-sentence investigation reports were prepared by county probation departments (PBPP County Adult Probation and Parole Annual Statistical Report, 2018). During the same year, sentences for 70,671 individuals (31.2%) and 82,718 judicial proceedings (26.6%) were reported to the Pennsylvania Commission on Sentencing (PCS Annual Report, 2018). The number and quality of reports vary greatly by county.
[3] Resolution 12: In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism, National Center for State Courts (2007).
[4] Using Risk and Needs Assessment Information at Sentencing: Observations from Ten Jurisdictions. National Center for State Courts (2015).