To Avoid Prison, Trump May Have to Convince a Probation Officer

Will Donald Trump avoid prison? It may depend partly on his ability to convince a probation officer that he would be “amenable 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 process Trump is about to undergo as he tries to stay out of the slammer.

In a typical case, a convict will be interviewed by a probation officer in the days after the verdict and be given the opportunity to accept responsibility and present mitigating factors that could reduce any sentence. That is going to be difficult for a man who has constantly railed against the case against him — not to mention the very judge who will decide the sentence.

Horn, who is a professor emeritus at John Jay College of Criminal Justice, said a probation officer will have to answer: “Is this individual going to accept that he has been justly convicted and accept the strictures and restrictions and requirements of a probation sentence?”

That will be one of several key factors for Justice Juan Merchan to weigh before he announces his sentence for the former president-turned-convicted felon on July 11.

Here’s how it all might 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 start? 

Before sentencing, so it will have to occur prior to July 11. And the Probation Department is required to deliver the report to the judge, to the defense and to the prosecutor, not less than 24 hours prior to sentencing.

Typically it happens within 10 days of the conviction. The judge sends an order to the Probation Department asking them to conduct a pre-sentence investigation and sends a copy of the certificate of conviction.

Will Trump have to go to the courthouse?

All I can speak to is what the typical defendant does, and obviously this is not a typical defendant.

A typical defendant, yes, would be directed to the probation office. There’s a different one in each county, but in New York it’s at 100 Centre Street on the 10th floor.

So for a typical defendant, they would essentially get in line and then meet with a probation officer? 

They would 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 were a typical defendant.

I think we have to be realistic. Trump shows up, I don’t know what kind of accommodation they’re going to make. But he’s usually trailed by a pack of press. That can be very disruptive to the probation office and to the other probationers or the other individuals who are waiting.

Some special accommodation has to be made. Not because they’re doing a favor for Trump, but just out of a recognition of the reality of the situation. He shows up with Secret Service agents, the whole thing. Just prudence suggests it probably should be done a different way.

Going back to this alternate reality where Trump is a typical defendant, what does that interview process look like? Is it sitting across from a desk? 

Yeah, that’s exactly what it looks like. Sitting in an office across a desk from a probation officer, a city civil servant, who does these things day in and day out. And there is a template for these things.

There’s 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 individual of any prior criminal history. I don’t believe it goes into pending matters.

It might discuss if the individual had a juvenile record. There’s a discussion of that.

The purpose of it is threefold: The primary purpose is to give the judge a complete understanding of the defendant so the judge can make a thoughtful and informed sentencing decision that’s appropriate to the crime and the criminal history of the defendant.

Secondly, to enable the court to make a judgment as to whether or not this particular defendant is — in our term of art — amenable to supervision. Are they going to accept the strictures of being on probation? There’s a set of rules, some of which are dictated by state regulation. And some of which are tailored specifically to each defendant.

Is this defendant likely to be willing to accept these rules and comply with them? Are they capable of it? Do they have the intellectual and mental capacity to understand the rules and to comply with them?

And the third is to identify any mitigating or aggravating circumstances that would justify leniency or a more harsh 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, I was an abused child,” or something like that. It’s an opportunity for the defendant to state their case for leniency.

Does the report include a sentence recommendation? 

Yes.

If they think someone should be incarcerated, would they include that? 

Yes, they’d have to justify it. They’d have to explain: “Given this defendant’s prior opportunities for leniency, previous probation sentences, conditional discharge, he has nonetheless continued to commit crime. Or, notwithstanding the defendant’s non-violent offense in the case, he has a prior record of violence,” something like that.

They have to justify why not to give probation.

And would a mitigating factor be an absence of criminal history? 

Sure. Obviously if you have a defendant who has an extensive prior record, incarceration seems more likely. Whereas, probation is intended for low-level offenders who have committed minor crimes. The person may stand convicted of falsifying business records, but maybe they were accused of stabbing somebody three years earlier, so the court needs to know that. Yeah, they were only convicted of falsifying business records, but they actually have a prior record of violence. Or they don’t — as in this case.

And it would discuss the individual’s age, employment. Is this an individual who is employed? Is this an individual who is capable of supporting themselves? Is this an individual who has a stable residence? Supportive family? That sort of thing.

Is it relatively rare for a first-time offender in a white collar case to get a report that advises a prison sentence? 

I would say, yes. It would be the exception, rather than the rule.

These reports are confidential. But the defendant can release it. The court may not release it. The prosecutor may not release it. But the defendant can release it.

How much weight do you think a judge actually gives this report?

Ninety five-plus percent of convictions in the city of New York are the result of plea negotiations. That basically means an agreement has been made between the defense and the prosecution, so the deal’s already been cut. The judge and the two opposing attorneys have already agreed what the sentence is going to be.

So when you ask, does the Probation Department make a difference? Most of the time not. As I say, 95 percent of the time, it’s a plea deal.

The five percent when it’s not? Yeah, it probably is instructive.

If you were a defense attorney, what is your ideal outcome of this report? Just to get those mitigating factors on the record? 

Sure. And if I was a defense attorney, it seems to me the determining factor would be, is this individual amenable to supervision? Is this individual going to accept that he has been justly convicted and accept the strictures and restrictions and requirements of a probation sentence?

You can infer, you can understand what I’m implying.

Do you think Trump’s conduct so far has shown that?

I’m not going to speculate on the specifics. My point is simply those are things that a judge and a probation office take into consideration when addressing and answering the question of, is this an individual who is amenable to supervision.

Do you think Trump’s gag order violations may be included in this report?

If I were the commissioner and one of my probation officers wrote a report today and it didn’t mention that, I would think that that was a shortcoming of the report.

But a judge doesn’t need to be told that by the way.

If a probation officer concludes this person has a track record of conduct that shows they’re not going to be amenable to supervision, how might that affect a judge’s decision at sentencing? 

Every judge is different. And how does it weigh against other issues? It’s not the only issue.

The judge has to weigh the interests of justice. One of the purposes of the sentence is to deter others from committing the same offense. It has to satisfy the community that justice has been done. There are a lot of considerations.