Will Donald Trump avoid jail? It may depend in part on his ability to convince a probation officer that he would be “admissible to supervision.”
That’s according to Martin Horn, a former commissioner of both the New York City Department of Probation and the city’s Department of Correction, who spoke to POLITICO Magazine about the trial Trump is about to face as he tries to stay out of trouble .
In a typical case, a convict is questioned by a probation officer in the days following sentencing and is given the opportunity to take responsibility and provide mitigating factors that could reduce the sentence. That will be difficult for a man who continually rails against the case against him – not to mention the judge who will decide the verdict.
Horn, professor emeritus at John Jay College of Criminal Justice, said a probation officer will have to answer, “Is this person going to accept that he was rightly convicted and accept the strictures and limitations and requirements of a probation sentence?” ”
That will be one of the key factors Judge Juan Merchan must consider before announcing his sentence for the convicted former president on July 11.
Here’s how it could all play out for Trump.
This conversation has been edited for length and clarity.
Now that Trump has been convicted, when will his interaction with the New York City Department of Probation begin?
Before sentencing, this must happen before July 11. And the probation department is required to provide the report to the judge, defense and prosecutor no less than 24 hours before sentencing.
This usually happens within 10 days of the conviction. The judge sends an order to the probation department requesting that a pre-sentence investigation be conducted and sends a copy of the sentencing affidavit.
Should Trump go to the courthouse?
All I can talk about is what the typical defendant does, and this is clearly not a typical defendant.
A typical defendant would indeed be referred to the probation office. There is a different one in every county, but in New York it is at 100 Center Street on the 10th floor.
So for a typical defendant they would basically line up and then meet with a probation officer?
They were supposed to have an appointment. There are probation officers who specialize in writing these reports. And the convicted defendant might have to wait in the waiting room for a while – if that was a typical defendant.
I think we have to be realistic. Trump shows up, I don’t know what accommodation they’re going to make. But usually he is followed by a group of press. This can be very disruptive for the probation office and for the other test subjects or other people waiting.
Special accommodation must be made. Not because they are pleasing Trump, but simply in recognition of the reality of the situation. He shows up with Secret Service agents, the whole thing. Out of prudence, it probably has to be done some other way.
Going back to this alternate reality where Trump is a typical defendant, what does that interview process look like? Is he sitting across from a desk?
Yes, that’s exactly what it looks like. Sitting in an office across from a desk, across from a probation officer, a city officer, who does these things day in and day out. And there’s a template for these things.
There is a social history of the defendant: birth, family, family background, marriage, then a recitation of what the defendant has been convicted of, a recitation and a review with the person of any prior criminal history. I don’t believe it’s a current issue.
It could be discussed whether the person had a juvenile record. There is a discussion about that.
Its purpose is threefold: The primary purpose is to provide the judge with a complete understanding of the suspect so that the judge can make a thoughtful and informed sentencing decision that is appropriate to the crime and the suspect’s criminal history.
Secondly, to enable the court to make a judgment on whether or not this specific suspect – in our term of the art – is amenable to surveillance. Will they accept the restrictions of probation? There are a set of rules, some of which are dictated by government regulation. And some of these are specifically tailored to each defendant.
Is it likely that this suspect is willing to accept and comply with these rules? Are they capable of this? Do they have the intellectual and mental capacity to understand and comply with the rules?
And the third is to identify mitigating or aggravating circumstances that would justify leniency or a harsher sentence. It’s an opportunity for the defendant to tell his or her side of the story and say, “Well, I did this, but you have to understand that I was an abused child,” or something like that. It is an opportunity for the defendant to make their case for leniency.
Does the report contain a punishment recommendation?
Yes.
If they think someone should be locked up, would they include that?
Yes, they would have to justify it. They should explain the following: “Given this defendant’s prior opportunities for leniency, prior probation sentences, and conditional discharge, he nevertheless continued to commit crimes. Or, despite the suspect’s non-violence in the case, he has a prior record of violence,” something like that.
They have to justify why they are not giving probation.
And could the lack of a criminal history be a mitigating factor?
Certainly. Obviously, if you have a suspect with an extensive past, incarceration seems more likely. While probation is intended for low-level offenders who have committed minor crimes. The person may have been convicted of falsifying company records, but maybe he was accused of stabbing someone three years earlier, so the court needs to know that. Yes, they were only convicted of falsifying corporate records, but they have actually committed violence before. Or not, as in this case.
And it would discuss the age and work of the individual. Is this an employed person? Is this an individual capable of supporting himself? Is this a person with a stable place of residence? Supportive family? Those kind of things.
Is it relatively rare for a first-time offender in a white-collar case to receive a report recommending a prison sentence?
I would say yes. It would be the exception rather than the rule.
These reports are confidential. But the suspect can release it. The court may not release it. The public prosecutor may not release it. But the suspect can release it.
How much weight do you think a judge will actually give to this report?
More than 95 percent of convictions in New York City are the result of plea negotiations. That basically means that an agreement has been made between the defense and the prosecution, so the deal is already broken. The judge and the two opposing lawyers have already agreed on the sentence.
So when you ask, does the probation department make a difference? Mostly not. Like I said, 95 percent of the time it’s a plea deal.
The five percent when that is not the case? Yes, it’s probably educational.
If you were a lawyer, what is your ideal outcome from this report? Just to make those mitigating factors known?
Certainly. And if I were a lawyer, the determining factor seems to me to be: is this person susceptible to surveillance? Will this person accept that he has been rightly convicted and accept the restrictions, limitations and requirements of a probation sentence?
You can conclude it, you can understand what I mean.
Do you think Trump’s behavior so far has demonstrated this?
I’m not going to speculate on the details. My point is simply that these are things that a judge and a probation agency take into account when considering and answering the question of whether this is a person amenable to supervision.
Do you think Trump’s violations of the gag order could be included in this report?
If I were the commissioner and one of my probation officers wrote a report today and that wasn’t in there, I would think that was a deficiency in the report.
But a judge does not need to be told that.
If a probation officer concludes that the person has a record of conduct that indicates he or she is not amenable to supervision, how might that affect a judge’s sentencing decision? ?
Every judge is different. And how does it weigh against other issues? It’s not the only problem.
The judge must weigh the interests of justice. One of the purposes of punishment is to deter others from committing the same offense. It must convince the community that justice has been done. There are many considerations.
