Archive 2021

Federal Sentencing: From PSR Preparation To Providing An Appropriate BOP Placement Request

Preparing for the Sentencing Hearing, in some cases should start as soon as possible.
Why?
a) Depending on if it’s a state or federal case, there may only be only weeks after the guilty verdict to start.
b) Getting all medical records via a HIPPA release can take a long time as some physicians and hospitals are very busy. HIPAA COMPLIANT AUTHORIZATION FOR THE RELEASE OF PATIENT INFORMATION PURSUANT TO 45 CFR 164.508.
c) Coordinating character references, expert witnesses, and documentation for their PSR all takes time.
d) Developing the post guilty verdict case regarding recommendations for placement takes time.

I- The Presentence Report is used by;
1st) Judges
To establish the length of the sentence,
Has the option to make a placement request.

2nd) The BOP, For Facility Placement.

3rd) Probation Uses it during Supervised Release.

4th) It then becomes a permanent part of the defendant’s record.

5th) Lastly, for inmates, it’s referred to as the ‘Inmates Bible’.

II) Sentence Length Determined By The Court
USSC Sentencing Table (Point Based), [2018, CHAPTER 5: SENTENCING TABLE]
Offense Level (0-43+): *24+ categories.

Vs
Criminal History (0-13+)
Points for each prior sentence > 1 Year + 1 Month.
Points for each prior sentence > 60 days, not counted above.
Point for each prior sentence, <= 60 days not counted above; for up to a maximum of 4 points in this category.
Points for each revocation that has a new charge or occurs under federal supervision.
Point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points as noted above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.

III) BOP Determines Placement Designation
1st) Healthcare: provided based on a CARE LEVEL I-IV Structure
Applies to Medical and Mental Healthcare CARE LEVELs.
Psychology and Life Skills National Programs; limited availability with associated security requirements.
There are approximately 3000 Medications in the BOP, which fall into 3 tiers. PPRS Prison Match™ has all of these drugs categorized by tier level should this applies to your client.
Is a special diet requested?
Allergies: all need to be documented in the PSR.

2nd) Non-Medical Placement is based on;
Bed Space Availability. 
Aspirational: placement within 500 driving miles of legal residence.
Population Management; some inmates, for specified reasons, need to be monitored or separated from others.

2a) Public Safety Factors (PSF) & Management Variables [P5100.08, CN-I, 9/4/2019, Tables: Chapter 5, pages 12-13]
Could a Public Safety Factor (PSF: Chapter 4, pages 5-13) warrant a reduced security level?
Accepting Responsibility (gets point reductions).
Voluntary Surrender (gets point reductions).
Drug / Alcohol Abuse.
RDAP; within 1 year prior to date arrested (illegal or legal medications or drugs).
AGE: 55+ (0Pts), 36-54 (2pts), 25-35 (4pts), <25 (8pts), Unknown (8pts).
Education Level: High School (0pts), GED Progress (1pt), No degree (2pts).

Sentence Length
>10 years – Low
>20 yrs – Medium, (Females: High)
>30 yrs – High

Disruptive Group
Male inmates will be housed in a High-security level institution unless the PSF has been waived.

Greatest Severity Offense
Male will be housed in at least a Low-security level institution unless the PSF has been waived.

Threat to Government Official
Male or female will be housed in at least a Low.

Deportable Alien: (male inmate who is not a citizen will be housed in at least a Low).

History Violent Behavior
A female inmate whose current term of confinement or history involves two convictions or findings – Low.

Serious Escape
A female, serious escape with the last 10 yrs. designated to Carswell Adm. Unit, unless the PSF has been waived.
A male inmate with or without the threat of violence or escapes housed in at least a Medium.

Juvenile Violence
A male or female who has any documented:
a) Violent behavior, past or present, which resulted in a conviction, delinquency adjudication, or finding of guilt.
b) Violence: aggressive behavior causing bodily harm, death, or behavior likely to cause serious bodily harm. 

Serious Phone Abuse
a) A male or female who utilizes the telephone to further criminal activities or Promote Illicit Organizations.
b) Conviction is Not Required, housed at least in a Low.
c) The PSF should be entered regarding any one of the following, if applicable.

Criminal acts conducted by telephone
-Leader/Organizer or primary motivator; or
a) communicate threats of bodily injury, death, assaults, or homicides.
b) conducts Fraudulent activity (actual or attempted) in an institution.
-Leader / Organizer who used the telephone to conduct fraudulent activity (actual or attempted)…
a) Smuggled narcotics or alcohol into a prison.
-Federal Law Enforcement notifies the BOP of concern and needs to monitor an inmate’s telephone calls…
a) The inmate has been found guilty of a 100 or 200 level offense code for telephone abuse.
b) A Bureau of Prisons official has reasonable suspicion and/or documented intelligence supporting telephone abuse.

Prison Disturbance
A male or female inmate who was involved in a serious incident of violence; Engaging / Encouraging a Riot:
a) Males will be housed in at least a HIGH-security level institution and
b) Females will be assigned to the Carswell Adm. Unit.

2b) Plus
a) Judicial Recommendations
b) Options For Work Cadre Participation (at secure facilities without satellite camps), where the inmate is allowed to work outside the perimeter of the institution.
c) PSF Waved: An inmate may receive up to three Public Safety Factors (PSFs) wavers.
d) Long Term Detainee transfers for positive or negative behavior may cause placement in a facility different from scored security or custody level.

IV) Making The Placement Request
In recommending a facility placement, it’s helpful to provide a reason, for example:
To facilitate regular family visitation, or
To permit participation in a specific:
a) Medical CARE LEVEL
b) Mental Healthcare CARE LEVEL
c) Psychology and/or Life Skills National Programs; limited in availability and has associated security requirements.
d) Vocational Training Program
e) UNICOR job availability

V) Military: Is your client a Veteran?
If possible, connect your client with a facility that caters to veterans.
FCI Morgantown started a Veterans to Veterans Service Dog Training Program in 2016.
The Participants are federally imprisoned military veterans who are housed in a special wing that is responsible for training service guide dogs, for veterans who have mobility impairments, Post Traumatic Stress Disorders (PTSD), or other military service missions.

If you’d like to discuss this, I look forward to speaking with you.

While In The BOP Your Client Needs A Medical Second Opinion – The Process

If your client is lucky enough to get approval, they still may face months (or possibly years) to get to see and then be treated by that specialist. Having their condition noted in their PSR along with their treating physicians’ recommendations included may prove helpful here. Taking all of this into account, the BOP is under no obligation to follow the consulting physician’s treatment recommendations; Program Statement P6031.04 (Pg. 20-21).

Taken from my article below; The Federal Lawyer, Jan/Feb. 2021 (Pages 45-46), I review the process that the BOP uses to provide care. Briefly, they’re based either on their definition of medical need, treatment cost, staff availability to accompany the inmate to see the physician, and how close the inmate is to their release date.

 

  1. Life-Threatening Conditions

Treatment for life-threatening conditions is essential to sustain the life or function of a critical bodily system and requires immediate attention.

The BOP refers to these conditions as “Medically Necessary–Acute or Emergent” and includes the following conditions in this category: heart attacks, severe trauma such as head injury, hemorrhage, stroke, detached retina, sudden vision loss, and complications of pregnancy or labor.7

   2. Medically Necessary Conditions

The BOP defines this category to include conditions that are not immediately life-threatening but which without treatment now, the inmate could not be maintained without significant risk of:

• Serious deterioration leading to premature death.                                                                                      • Significant reduction in the possibility of repair later without present treatment.                               • Significant pain or discomfort that impairs the inmate’s participation in activities of daily living.8

Examples of conditions the BOP includes here are chronic conditions such as:

  • High blood pressure, high cholesterol, heart disease,
  • Diabetes; severe mental health issues (e.g., bipolar disorder, schizophrenia);
  • Infectious disorders (e.g., HIV, tuberculosis); and cancer.9

   3. Medically Necessary but Not Urgent

The BOP defines this category as “Medically Acceptable—Not Always Necessary.”10 The group includes conditions for which “treatment may improve the inmate’s quality of life.”11 Examples of treatments for conditions in this category, as listed in the BOP, Policy on Patient Care, include:

  • Joint replacements,
  • Reconstruction of the anterior cruciate ligament (ACL) in the knee, and treatment of:
  • Noncancerous skin conditions.12

Such treatment procedures require review and approval by the institution’s Utilization Review Committee, which considers various factors, including:

  • Risks and benefits of the treatment,
  • Available resources (including the cost of security staffing and transportation),
  • The inmate patient’s medical history, and
  • How intervention (or lack thereof) will impact the inmate’s activities of daily living.13

Should an outside specialist consult be needed for a non-emergent condition, a referral request is made to the prison’s Utilization Review Committee and clinical director. Other members involved in this decision-making process include:

  • The associate warden or warden,
  • Health service administrator or assistant,
  • The medical trip coordinator,
  • Any health care providers directly involved in the referral, and perhaps:
  • The director of nursing and
  • The chaplain or a social worker.14

 

The clinical director has the final say over all Utilization Review Committee decisions.15 If approved, the inmate-patient will be placed on a schedule or waitlisted until the specialist has an opening during the contract’s limited monthly hours, which may be several months or years later.

Notably, the clinical director is under no obligation to follow medical recommendations made by the outside physician consultant specialist. If the recommendations are not followed, the clinical director will document his/her justification in the inmate health record.16 Justification may be based on the category of care sought.

  1. Medically Appropriate

Some treatments, even though recommended by a health care provider and deemed appropriate by the clinical director, still require approval by the Utilization Review Committee, which is not likely to be granted. These treatments are considered by the BOP to have “limited medical value” and include cosmetic procedures and removal of noncancerous skin lesions.17 It is worth noting that some skin lesions may be misdiagnosed, so the denial of treatment for these appropriate medical procedures is a concern for inmates with such health needs. 

  1. Extraordinary Treatments

The BOP considers a medical treatment extraordinary if it “affect[s] the life of another individual, such as organ transplantation.”18 Thus, organ transplants and experimental/investigational treatments require the approval of the Utilization Review Committee, which is not likely to be granted.

If you’d like to discuss this, I look forward to speaking with you.

BOP: Self-Surrender, Ensuring a smooth transition

Avoid a stay in Solitary Confinement,
‘Self-Surrendering Successfully’ in the BOP.

Before the sentencing hearing.

1.     Ensure accuracy of the PSR.

2.     Verify public safety factors (PSFs) to ensure appropriate security levels. These could include or preclude camp placement for otherwise qualified defendants.

3.     Counsel should consult with the client to determine:

•       Which facility the client prefers.

•       Appropriately calculated security level verified.

•       Submit the proposed recommendation to the prosecutor to get their Non-Objection.

•       The Non-Objection then gets submitted to the court and clerk at sentencing.

•       PSR Accuracy.

a.     Formal findings are made by the judge: Federal Rule of Criminal Procedure 32(c)(1) and attached to the PSR before it is forwarded to the BOP.

b.     Findings are made in the “Statement of Reasons” (sealed form), the section of the judgment will also suffice.

c.     Check that the clerk prepares the judgment correctly including your SOR content.

d.     Criminal history score may not change a defendant’s score, but it can negatively impact prison designation.

After sentencing with the designation made:

·       Review with the defendant information such as nearby hotels, visiting hours, mail, commissary, telephone, items that are allowed in prison, etc.

What the defendant can bring with them:

1.     Basic wedding band, Bible.

2.     Prescriptions for medications (4 weeks recommended, at worst they are thrown out, at best they are available for your use. When surrendering on weekends or holidays the BOP may allow these to be used if not available from their onsite pharmacy), medical devices, and glasses (that are not made with metal).

3.     ID: birth certificate, passport, driver’s license, and social security card.

4.     Cash; $320 ($370 in November and December), then use either Money Gram or

Western Union for monthly deposits.

5.     Legal papers.

6.     List of personal names (including phone numbers and addresses).

A copy of the article can be found in LinkedIN

Treatment and Rehabilitation in Federal Prison: The Critical Role of the Presentence Report

Availability of Treatment and Rehabilitation in Federal Prison

The Federal Lawyer Jan./Feb. 2021                    Availability of Treatment and Rehabilitation in Federal Prison

 

 

The Critical Role of the Presentence Report
MARC BLATSTEIN, D.P.M.; FAY F. SPENCE, J.D.; E.J. HURST II, J.D.; AND MAUREEN BAIRD

Prisoners have a constitutional right to adequate medical care, but what that means and how to get needed treatment are often not well understood by attorneys representing criminal defendants.
This article attempts to address that knowledge deficit by explaining the medical, mental health, and substance abuse programs and policies in the federal Bureau of Prisons (BOP), as well as some of the educational, vocational, and other available programs intended to rehabilitate inmates and prepare them for return to society. Equally important, the article explains the critical role of the presentence report (PSR) in determining whether and how needed treatment and programs will be available to a defendant. Documentation is paramount, and the diligent attorney must be proactive in gathering and supplying the appropriate documentation to the probation officer preparing the PSR and to the court, along with a sentencing memorandum advocating for the defendant’s desired sentencing outcome and institutional placement, supported by the sentencing factors set forth in 18 U.S.C. § 3553(a).

Dr. Blatstein_The Federal Lawyer-The Critical Role Of The PSR_Jan-Feb 2021

Your Client Needs You: Psychotic Disorders, PTSD, Autistic, TBI, Epilepsy, there are BOP Placement Options Available.

Psychology National Programs

Scoring PSF/Management Variables and Security Level Requirements for Participation

All Programs have Limited Availability: both in facilities, and inmates bed space

Terms

Axis I Disorders: Mental health and Substance abuse

Axis II Disorders: Personality and Developmental; targets inmates with severe personality disorders, typically Borderline Personality Disorder, who have a history of behavioral problems in the institution and who are amenable to treatment. P5330.11 

Some BOP Facilities have trained: Inmate patient care assistants (PCA-Page 3):

  • FCI Butner, NC-Medium: Providing ADL assistance where needed.
  • Trained inmate Mental Health Companions to assist others with mental illness, working under psychology staff-
    1. USP Atlanta, GA-High (Secure MH Step Down Unit),
    2. USP Allenwood, PA-High (Secure),
    3. FCI Petersburg, VA
    4. USP Florence, CO-High
  • BOP Trained Inmate Mental Health Companions Observers for Suicide Watch on fellow inmates

Psychology Programs

1st: first-timer young male offender

  • < 32 years of age, or younger,
  • Who’s facing a sentence of 60 months or more?
  • In a medium-security facility
  • Receives $40 for successful completion of the 6-month program to help acclimate to life inside.

Brave Program2 Facility Locations: 

FCI Victorville, CA-Medium
FCI Beckley, WV-Medium

2nd: male in (or facing) a USP

    • 2 Tracks:

 

  1. Substance abuse/dependenceDelusion and/or a Substance-induced Psychotic Disorder
  2. Major mental illness as:
    • Psychotic Disorder that may include Mood, Anxiety, Schizophrenia,
    • Participants can be referred through staff assessment or self-referral

Challenge Program15 Facility Locations:

 

USP Allenwood, PA-High
USP Atwater, CA-High
USP Beaumont, TX-High
USP Big Sandy, KY-High
USP Canaan, PA-High
USP Coleman I, FL-High
USP Coleman II, FL-High
USP Hazelton, WV-High
USP Lee, VA-High
USP McCreary, KY-High
USP Pollock, LA-High
USP Terre Haute, IN-High
USP Tucson, AZ-High

3rd: male or female but who

  • does not require inpatient treatment.
  • has serious mental illnesses.
  • lacks the skills to function in a general population.

Mental Health Step Down Program 3 Facility Locations:

FCI Butner, NC-Medium (MH Step Down Unit)
USP Atlanta, GA-High (Secure MH Step Down Unit),
USP Allenwood, PA-High (Secure)

*Male inmates with a primary diagnosis of Borderline Personality Disorder are referred to the STAGES Program

 4th: male or female

  • with a history of mental illness related to;
    • physical, mental, intimate domestic violence, or traumatic Psychotic Disorder?
  • The program is given during their first 12 months of incarceration.

Resolve Program15 (F), 2 (M) Facility Locations:

ADX Florence, CO-Maximum (M)
FPC Alderson, WV-Minimum (F)
FPC Bryan, TX-Minimum (F)
FCI Tallahassee, FL-Low (F)
FCI Dublin, CA-Low (F)
FCI Waseca, MN-Low (F)
FCI Danbury, CT-Low (M)
FCI Aliceville, AL-Low (F)
FMC Carswell, TX-Adm. (F)
FSL Danbury, CT-Low (F) (Activating)
SCP Lexington, KY-Minimum (F)
SCP Greenville, IL-Minimum (F)
SCP Coleman, FL-Minimum (F)
SCP Marianna, FL-Minimum (F)
SCP Victorville, CA-Minimum (F)
SCP Danbury, CT-Minimum (F)
SFF Hazelton, WV -Low (F)

5th: Male

  • With serious mental illnesses, and a
  • Primary diagnosis of Borderline Personality Disorder, along with
  • Hx of unfavorable institutional adjustment linked to this disorder

Stages Program2 + 8 Facility Locations:

Secure Stages Program: (2017 National Program)

  • FCI Terre Haute, IN-Medium
  • USP Florence, CO-High (Effective 9/ 2014)

These may also be available here, therefore checking with the BOP is recommended:

  • FPC Bryan, TX – Minimum
  • FMC Carswell, TX – Med. Ctr
  • FCI Aliceville, AL – Low
  • FPC Coleman, FL – Minimum
  • FPC Marianna, FL – Minimum
  • FCI Tallahassee, FL – Low
  • FCI Dublin, CA – Low
  • FPC Victorville, CA – Minimum

6th: Females; with

  • Substance abuse – who may be RDAP eligible.
  • Mental illness,
  • And a history of domestic violence – with a PTSD diagnosis.
  • All care can be provided here without the need for a transfer.

The Female Integrated Treatment (FIT) Program – 1 Location:

  • FCI Danbury, CT-Low – The New (FIT) Program

7th: Those with significant

  • Autism Spectrum Disorder and ALL OF ITS PARTS,
  • Difficulty interpreting what others are thinking or feeling.
  • Difficulty regulating emotion.
  • Difficulty maintaining the natural give-and-take of a conversation.
  • The tendency to engage in repetitive or routine behaviors.
  • Strict consistency to daily routines; outbursts when changes occur.
  • Problems with: social stimuli and aversions to smells, tastes, textures, along with the inability to decipher unwritten rules.
  • Obsessive-Compulsive Disorder,
  • Epilepsy, Alzheimer’s, Parkinson’s or
  • Traumatic brain injuries (TBIs)
  • cognitive limitations: psychological – intellectual or neurological deficits,
  • This is a 12-18 month program, participants may elect to continue participation.

Skills Program– 2 Facility Locations:

  • FCI Coleman, FL-Medium; (Male & Female)
  • FCI Danbury, CT-Low (male)
  • Dental care (non-routine) is tough to find for people with autism, as they require general anesthesia.

—————————–DRUG Issues—————————-

8th: Drug Abuse Education resulted in:

  • Substance abuse that contributed to the offense,
  • Substance abuse that resulted in a supervised release violation.
  • This is a 12-15 hour Educational Course / Not a drug treatment program.

9th: Nonresidential Drug Abuse Education Program

  • Upon completion may receive $30
  • For minor or low-level substance abuse impairment.
  • Benefit; the possibility of spending the maximum period in a halfway house (RRC)

10th: RDAP

  • To verify RDAP eligibility, in addition to drug and alcohol abuse, prescription medications along with other medications available over the counter are also included.

 

———————– Sex Offender Management Programs (SOMP) ———————————-

11th: Low to moderate sexual offender?

  • Single-sex crime; or first-time Internet Sex Offense?

SOMP Nonresidential (SOTP -NR) SOTP-NR Program8 Facility Locations:

FCI Elkton, OH-Low
FCI Englewood, CO-Low
FCI Petersburg- Medium
FCI Marianna, FL-Medium
FCI Seagoville, TX-Low
FMC Carswell, TX-Med. Ctr. (Females)
FMC Devens, Massachusetts
USP Marion, IL-Medium
USP Tucson, AZ-High

12th: high-risk offender?

  • History of multiple sex crimes (re-offense sex offender),
  • Extensive non-sexual criminal histories, including;
  • rape, sodomy, incest,
  • transportation with coercion,
  • sexual exploitation of children,
  • unlawful sexual conduct with a minor, and/or
  • internet pornography?

SOMP Residential (SOTP -R) – SOTP-Residential Program2 Facility Locations:

  • USP Marion, IL-Medium/High
  • High FMC Devens, MA-Med. Center.

13th: Sexually Dangerous Persons

Certification & Civil Commitment

  • The Walsh Act,
    • one “who has engaged or attempted to engage in sexually violent conduct or
    • child molestation and
    • who is “sexually dangerous to others.”
  • a person is considered sexually dangerous to others if he;
    • suffers from a serious mental illness, abnormality, or
    • a disorder where he would have serious difficulty in refraining from sexually violent conduct or
    • child molestation once released.

SOMP Commitment and Treatment Program Facility Location:

Physician Presentence Report Service, LLC