Kim Harward of Utah Sentencing Alternatives creates an alternative report to Adult Probation and Parole’s pre-sentence report. In an adversarial system, a criminal defendant should be allowed to present his or her side and an alternative pre-sentence report should serve that purpose. A criminal defendant through Utah Rules of Criminal Procedure Rule 22 may provide the sentencing Judge with “any information in mitigation of punishment.” See also, State v. Young, 853 P.2d 327 (Utah 1993).

The following is an open letter from Kim Harward:

During a sentencing hearing before Judge Boyden on the 14th of February a staff attorney for the Attorney General’s Office assigned to prosecute the case, suggested that Utah Sentencing Alternatives was perpetrating a fraud by submitting a report in a similar format as that used by AP&P. He did not challenge the information contained in the report, only the format. He then proceeded to impugn my integrity and character. Off the record he reportedly threatened criminal sanctions.

After listening to the audio of the sentencing and speaking with others who were present, I am publicly addressing the three issues vocalized by the prosecutor.

Use of the word “Protected” at the top of the report.

RESPONSE: the information contained in the report requires classification to comport with GRAMA requirements. “Protected” is the proper classification. The applicable code sections are referenced below (emphasis added):

§63G-2-103(20)… is classified protected as provided by Section 63G-2-305 (22)(a) a…document (i) that is…received, or retained by a governmental entity… (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.

§63G-2-305 The following records are protected… (9) records created or maintained for… criminal or administrative enforcement purposes, if release of the records: (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing; (d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source….

Including “Presentence Report” in the title.

RESPONSE: There are legal precedents throughout the country for defense-based sentencing reports. There are statutory provisions and judicial rules authorizing information to be presented to the court in a variety of formats, and there is a history of defense-based sentencing reports over the past fifty years. The purpose of all sentencing reports is to provide judges and other key decision-makers with relevant information about the defendant. Generally speaking, judges are appreciative of the additional information that is made available to them in defense-based reports as it aids them in formulating fair and just sentencing decisions.

Although the concept of defense-based reports is not new, they were not generally available in Utah until Utah Sentencing Alternatives began offering defense-based reports in 2009. The need for this service is predicated in large part by the quality of information currently being relied upon by judges across the state. As the quality and utility of the information provided by the government in this crucial process deteriorates it becomes markedly more challenging to fill in the gaps. The history of Presentence Reports in general and defense-based reports in particular is certainly relevant the present discussion. A good overview of this history is available in The History of the Pre-sentence Investigation Report (Center on Juvenile and Criminal Justice, available here: www.cjcj.org/files/the_history.pdf). The following excerpts provide some relevant context to the present discussion:

The origins of the modern presentence investigation began in the 1840s with the crusading efforts of Boston shoemaker John Augustus (1841-1859). It was Augustus’ belief that the “object of the law is to reform criminals and to prevent crime, and not to punish maliciously or from a spirit of revenge.”

Considered among the most important documents in the criminal justice field, the presentence investigation report (PSI) has been the central source of information to sentencing judges since the 1920s. Its original purpose was to provide information to the court on the defendant’s personal history and criminal conduct in order to promote individualized sentencing. With the advent of more punitive sentencing policies in recent years, the PSI has become more offense focused and less individualized.

Historically, responsibility for the development and presentation of the PSI was solely the role of the probation officer. However, PSIs produced by probation department’s have long been criticized for being routinized and biased against the defendant. This issue was compounded by the failure of defense attorneys to properly prepare their clients for the probation interview and for failing to adequately plan for the sentencing hearing.

In the 1960’s a new era in the history of the PSI emerged with the pioneering efforts of Dr. Thomas Gitchoff, a professor of criminal justice at San Diego State University. To improve the quality of defense representation at the sentencing hearing, Dr. Gitchoff introduced the privately commissioned PSI… The use of privately commissioned defense-based PSIs swelled in the late 1970’s and 1980s as a result of efforts by correctional reformer Jerome Miller and the National Center on Institutions and Alternatives (NCIA).

Contrary to what the prosecutor represented to the court, state statute specifically provides the opportunity for defense-based presentence reports. The applicable code sections are referenced below:

§77-18-1(5)(a) Prior to the imposition of any sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the department or information from other sources about the defendant.

Also contrary to what the prosecutor represented to the court, AP&P is not the only entity with the authority to prepare a report entitled Presentence Report. The applicable code sections are referenced below:

§58-50-2(3) “Private probation” means the preparation of presentence investigation reports and the performance of supervision services by a private probation provider and funded by a court-ordered fee, to be paid by the defendant, pursuant to Section 77-18-1.

Report author’s character.

RESPONSE: It is no secret that I was formerly employed by the Utah Department of Corrections for sixteen years. Likewise, it is no secret that I was terminated from the department (June 2008) following an arrest for DUI in February 2008 and my certification as a peace officer was suspended for two years.

My purpose in preparing defense-based presentence reports is to present criminal defendants’ in a human perspective; to include reasonable and relevant alternatives to imprisonment; and to build safe communities for future generations. Doing so requires a proper GRAMA classification, which is “Protected.” The title of the report is incidental. It is the information that is important. Consequently I have changed the title of the report to reduce the possibility of prosecutorial confusion. The reports are now simply entitled Felony Sentencing Report or Misdemeanor Sentencing Report, whichever is applicable.

Regarding the format – yes, the format does resemble that the document prepared by AP&P. This is very intentional, but not in an effort to deceive as suggested by the prosecutor. Rather, it is to allow for easier comparison of the information that is presented and to provide some consistency in the delivery of that information. In the two years I have been offering defense-based sentencing reports the format has undergone several revisions and will likely include others in the years to come. In general however, the type of information included in sentencing reports is well defined both in history and in statute.

Who prepares the report is highly significant. Whether it is the government or a private probation provider is directly correlated with potential bias and conflict of interest. Utah Sentencing Alternatives is not a private probation provider and we don’t provide mental health or substance abuse treatment. The sentencing reports we prepare and submit to the court are not used as a marketing opportunity for ancillary products or services and we do not maintain financial interests with other service providers. These are all business decisions that have made on purpose to enhance credibility and increase quality.

Finally, the outright character assassination attempted by this prosecutor was plainly an effort to dissuade others from using defense-based presentence reports prepared by Utah Sentencing Alternatives. The fact that he did not attack the information contained in the report and instead resorted to attacking my credibility is a high compliment and endorsement. The vehemence in which he attacked (evident in the audio excerpt available here) was likely born out of frustration and fear instead of reason and fairness. While similar intimidation tactics may be attempted in the future, I stand by my work and my credibility with an open invitation for transparency and dialogue.

I have posted the relevant excerpt of the February 14th sentencing on my website (available here) and the full audio is available upon request. I am also willing to provide the overall performance evaluations for 2005 – 2007 (satisfactory), the court docket for the DUI, and other information upon request.

Thank-you for your time in reading this letter and for your support.

Kim Harward
Sentencing Consultant

(801) 990-6271
(801) 610-2077 (fax)
Utah Sentencing Alternatives
890 Heritage Park Blvd., Suite 104
Layton, UT 84041

www.UtahSentencingAlternatives.com
info@utahsentencingalternatives.com
@SentSav (Twitter)