The Presentence Report

Federal Sentencing in the age of  /COVID19; where possible, requesting Compassionate Release is optimal.

I) This is critical as prisons are (like cruise ships) perfect petri dishes for a contagion to spread.

II) These issues if possible need to be included in the defendant’s Presentence Report even though currently there are no treatments available, efforts have been made worldwide to identify. But still today, survival appears to be based on wearing a mask, social distancing at a minimum of 6′ and hand washing which is a daunting task at best.

This is important as the families of inmates along with the BOP Correction Staff can spread COVID-19 back into their communities. The challenge is that masks are not uniformly available to inmates and corrections staff alike, and social distancing is not practicable.

III) Another option is to request, developed by the U.S. National Library of Medicine regarding Drug Crimes – is Evidenced Based; Supervision In Liew of Detention or Treatment in Lieu of Prosecution: Diversion Sentencing. 

IV) Remdesivir[i] (A treatment for COVID that is currently not on BOP Formulary). It is used to shorten the time spent on supplemental oxygen, or before supplemental oxygen is needed as in Presidents Trump’s treatment at Bethesda Navy Hospital/Walter Reed 10/2020.

Before The Sentencing Hearing – the defendants future lies in their Presentence Report, from it:
    1. The judge determines the length of the sentence:
    2. The BOP Designation and Sentencing Computation Center (DSCC) determines facility placement.
    3. The Presentence Report (PSR):
      • impacts a defendant throughout their term on confinement.
      • follows the defendant after incarceration while under supervised release.
      • becomes part of their permanent record.
      • is considered the Inmates Bible as the PSR affects every decision during inmates’ time in federal custody. Getting it right from the outset is paramount.
      • provides for ongoing Medical (and Mental) Healthcare Needs, which are implemented through the BOP CARE LEVEL I-IV Structure.
      • medications; there are approximately 3000 available, and are dispensed via a 3 tier level structure; 
        1. On Formulary or available.
        2. Non-Formulary; These require a lengthy preauthorization process.
        3. Lastly, specific medication is just not available.
          • Here the legal team should consult with the testing physician to help identify if there was a suitable medication option available through the BOP Formulary of Non-Formulary their model. 
          • If no medication substitutes are available, this can be brought up before the sentencing hearing. 
      • identifies your client’s legal residence.
      • allows for programming needs as there are specific programs that address mental illness and other psychological Issues.
      • increases security measures to ensure the protection of victims, witnesses, and the public including Security Threat Groups, if any.
      • determines security levels, options range from:
        • Camps: either Minimum FPC or Minimum Satellite Camp.
        • Then the different levels range from a Low, Medium (and Medium USP), High (and High USP), USP, SuperMax, and Administrative.
    4. Preparing the PSR and for the Sentencing Hearing 
      • How Federal Prisoners are Placed-Frost/Bussert LLC; Provides a great overview of how to incorporate your client’s placement request through their PSR. 
        • In drafting a request for prison placement or designation, it’s helpful to include the points below in terms of the reasons underlying them; by Alicia Vasquez and Todd Bussert (with attached documentation into their PSR).
        • Eventually these ‘framed recommendations’ may become part of the court’s Judgment and Commitment (J&C) orders imprisonment section, and together could lend itself towards BOP acceptance.
        • Judicial recommendations (per–18U.S.C.§ 3621(b)), can be included in their J&C orders imprisonment section Accurately prepared, the PSR together with a qualified placement request that includes‘framed recommendations in terms of the reasons underlying them’ lays the groundwork for the best possible judicial recommendation, along with a potentially successful BOP placement outcome.
        • Departures and Offenders Characteristics
Allan Ellis’s Federal Prison Guidebook 2019, §13:10 Tips on getting your client the lowest possible sentence, James Publishing Inc. 
    • Document-Document-Document; The best way to influence a judges ‘preconceived selection of a tentative sentence before the hearing’, could be to file the sentencing memorandum that uses the §3553(a) factors to demonstrate why a sentence below the guideline range is “sufficient, but not greater than necessary”, to achieve the goals of a fair sentence.
      • Additional recommendations from Alan Ellis are including character letters (or videos) from people willing to offer insight into the defendant’s true nature, notwithstanding their awareness of the offense(s) of conviction; it could go a long way toward achieving the sentence you want.
      • Waiting until the actual hearing to make your sentencing and placement case makes it far less likely that the court will give appropriate weight to your position.
      • Therefore, filling your sentence memorandum at least a week before the sentencing hearing will go a long way to making a strong case for the sentencing outcome you seek. 
    • Does your client have a physical or mental impairment, drug or alcohol dependency issues; corroborate with their:
    • Doctors letter and/or report
    • Medical treatment record history (under seal, preferably via the Probation Office so that the information is appended to the Presentence Report so that it’s transmitted to the BOP).
    •  Similarly, if your client has a military service record or a history of good works, provide these appropriate documents or testimonials.
Don’t let this be a missed opportunity! 
    • Prison placement/designation is an integral part of the presentencing process.
    • How did I learn that there is a need? During a meeting I had years ago with a local Federal Defender Mitigation Specialist, he revealed that at times the BOP had a less than optimal accurate placement regarding several of their client’s mental healthcare needs.

PPRSUS is here to help

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