Renagh O’Leary, Supervising Sentencing, 57 U.C. Davis L. Rev. 1931 (2024).
Abstract
Community supervision agencies and officers do not just supervise people on probation and parole. They also play a unique and privileged role at sentencing. In nearly every state, community supervision officers investigate and write the presentence report, which is often the judge’s primary source of information about the defendant and the crime of conviction. With minimal guidance from legislatures or courts, community supervision agencies set the policies that govern the presentence investigation and report process. This Article offers a descriptive and theoretical account of community supervision’s sentencing role in state courts. My account is based on an analysis of statutes, court rules, and a collection of almost 200 internal community supervision agency policy documents obtained through open records requests to community supervision agencies in every state. I find that community supervision agencies and officers do not simply implement sentencing policy; in key respects, they make it. In their sentencing role, community supervision agencies and officers take positions on highly contested first-order questions about the sentencing process itself: what goals, values, and assumptions should guide sentencing decisions? What types of facts should sentencing judges consider? How should those facts be found, and what meaning do they support? I argue that community supervision’s answers to these questions both reflect and reinforce what I describe as a punitive perspective on the sentencing process: one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures. Community supervision’s sentencing role elevates the punitive perspective on the pretense of neutrality and, by doing so, helps to insulate it from challenge and critique.
