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).
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
To verify RDAP eligibility, in addition to drug and alcohol abuse, prescription medications along with other medications available over the counter are also included.
Some were overwhelmed, even as we approach the second wave.
On June 2, 2020, BOP Director Michael D. Carvajal, and BOP Medical Director Dr. Jeffrey Allen testified before the Senate Judiciary Committee. They issued a written statement to the Committee addressing actions the BOP was taking to protect inmates and staff. While it may be true that BOP institutions have such supplies, prisoners dispute they receive them in sufficient quantities. “We were issued three of those motel-sized bars of soap each week,” said Lily. “While we could purchase limited commissary items while under virtually 24-hour a day lockdown, they were often out of products such as soaps. Naturally, exchanges were not permitted. So, if you ordered enough soap for yourself and commissary was out, you’d have to wait for the next three mini bars of soap.”[1]
“Within 24 hours of [the CDC’s change in the recommendation to wear masks], we had provided face coverings to most of our staff and inmates,” explained the directors. “Within 72 hours, all of our inmates and staff were provided face coverings.” “While the staff was provided with KN95 masks, we were initially issued two paper masks with elastic ear straps…[2]
“In prison, we are cut off from the outside world,” Lily said. “We are separated from our families and the social anchor points people rely on. And when the BOP stopped telling us anything about the risk or danger we were in, it resulted in a general sense of helplessness, agitation, and fear. Prison officials created an environment where safety was reduced, and mental health issues were exasperated.”[3]
Andre Williams was 78-years old and had undergone a quadruple-coronary bypass[6] while incarcerated at FCI Butner, NC. For months before COVID-19 hit the prisons, he sought compassionate release. Finally, on April 1, a court granted his petition. Relief came too late. Four days after the grant, he tested positive for COVID-19. On April 13, he died.
While these two men were granted compassionate release,[7] they did not escape the virus. Before being released the prison did not test either man (Later 79-year-old Alan Hurwitz and Juan Ramon 60) for COVID-19. Rather they have transported them to the airport, escorting them onto the planes, ‘without notifying the aircraft carriers’. Later within days, one was dead, but not counted as part of the total number at Butner, as they died at home.
4/7/2020, Butner prison in Butner, North Carolina, has 39 inmates who had tested positive. That is more than any other federal prison. No staff member there had tested positive.
June 17, 2020; Massachusetts Lawmakers sent a Letter to Urge Federal BOP to Implement Widespread COVID-19 Testing: US Senator Elizabeth Warren (D-MA), Senator Edward J. Markey (D-MA) and Congresswoman Lori Trahan (D-MA),
Senator Warren and Representative Ayanna Pressley (D-Mass.) sent a letter to President Trump[15]calling on him to adopt and release decarceral guidelines to reduce the population.
There have been five total deaths at the Federal Medical Center, which currently houses 1,354 offenders.
5/18/2020, Stephen Cook sent a letter to the court in Tennessee, asking for compassionate release or to be sent to home confinement from the Federal Medical Center in Lexington, Kentucky. He suffered from sickle-cell and required monthly off-site treatment. The government opposed his release. Mr. Cook died on June 3, 2020.
Jun. 17, 2020; Federal Bureau of Prisons reports an active case of COVID-19 related to Springfield Fed Med[21] Center. Prison officials report 1,190 federal inmates and 170 staff have tested positive for COVID-19. There have been 85 federal inmate deaths and 1 prison staff member death attributed to COVID-19 disease.
Do you have clients facing incarceration in the BOP, and who are being treated forintellectual disabilities, neurological impairments,social deficiencies,or autism? If yes; which of the BOP’s ‘2’ available prison facilities are best suited for their placement? That’s right, there are only 2 locations.
I ask this is because the concept of prison officials engaging individuals with autism (for example), has its own brand of procedural issues. For those with a documented history, this could be critical for the safety of all parties; the inmate, correction officers, and the facility general population.
Increasingly, media outlets are reporting instances whereby police officers are confronting subjects on the streets and encountering behaviors of some as “resisting verbal commands” and “obstructing justice,” among others. Eventually, the presence of autism or a different disability is discovered after these police/civilian engagements. Thus, a BOP facility who at a minimum, provides this type of care at a couple of facilities, should be made part of the BOP placement request through the PSR.
A particular focus on autism-affected inmates, classified by BOP under the umbrella category as “Intellectual Disabilities, Autism Spectrum Disorders” and “Major Neurocognitive Disorders,” seeks to treat affected inmates with a multidisciplinary modality, albeit only available at two BOP locations nationwide. TheFederal Bureau of Prisons amended and published (May 2014)[v]its agenda to handle/treat mentally unstable inmates while incarcerated.
As a Police Officer, Cheri Maples, stated earlier, “…wisdom is being able to discern when gentle compassion is called for and when fierce compassion is called for.” That, my friends, rather sums it up.[ix]
‘The responsibility for a client’s mental and physical health should be safeguarded to protect them from themselves and others, providing a safe environment for the duration of their incarceration.’
This is the responsibility of the legal defense team, court, and BOP.
The Skills Program[ii]is available at these two facilities: FCI Coleman, FL-Medium FCI Danbury, CT-Low
The list of lingering maladies from COVID-19 is longer and more varied than most doctors could have imagined. Ongoing problems include fatigue, a racing heartbeat, shortness of breath, achy joints, foggy thinking, a persistent loss of sense of smell, and damage to the heart, lungs, kidneys, and brain. Screenshot 8/19/2020
As many as 1 in 3 patients recovering from Covid-19 could experience neurological or psychological after-effects of their infections, experts told STAT, reflecting a growing consensus that the disease can have a lasting impact on the brain. Beyond the fatigue, neuropsychological problems range from headache, dizziness, and lingering loss of smell or taste to mood disorders and deeper cognitive impairment.
Doctors have concerns that patients may also suffer lasting damage to their heart, kidneys, and liver from the inflammation and blood clotting the disease causes. Additionally, between 30% and 50% of people with an infection that has clinical manifestations are going to have some form of mental health issues,” said Teodor Postolache, professor of psychiatry at the University of Maryland School of Medicine.
So far the virus appears to cause its damage to the brain and nervous system not as much through direct infection as through the indirect effects of inflammation, said Victoria Pelak, professor of neurology and ophthalmology at the University of Colorado School of Medicine.
“Strokes are larger, potentially more damaging with this disorder. Once inflammation or blood vessel problems occur within the nervous system itself, those people will have a lot longer road to recovery or may die from those illnesses,” Colorado’s Pelak said.
Doctors are also watching for a syndrome called demyelination, as in the autoimmune disease multiple sclerosis, this can cause weakness, numbness, and tingling. It can also disrupt how people think, in some cases spurring psychosis and hallucinations. “We’re just not sure if this virus causes it more commonly than other viruses,” Pelak said.
The COVID-19 infection might also act as a “priming event” for problems to resurface in the future said Teodor Postolache. Psychological stress could reactivate behavioral and emotional problems that were initially triggered by the immune system responding to the virus. “What we call psychological versus biological may actually be quite biological,” he said.
“We can open the hospitals back up to the families. That’s important,” he said.
“We can be aware of these problems and tell the families about them so that the families will know that this is coming. [And]
we can do counseling and psychological help on the back end.”
8/12/2020, MIT Technology Review:[2] Covid-19 “long haulers” are organizing online to study themselves.
Slack groups and social media are connecting people who have never fully recovered from coronavirus to collect data on their condition.
Gina Assaf was running in Washington, DC, on March 19 when she suddenly couldn’t take another step. “I was so out of breath I had to stop,” she says. Five days earlier, she’d hung out with a friend; within days, that friend and their partner had started showing three classic signs of COVID-19: fever, cough, and shortness of breath.
Assaf had those symptoms too, but a full month after falling ill, she attempted to go to grocery shopping and ended up in bed for days. In those first few months, Assaf found a legion of people in situations similar to her own in a Slack support group for COVID-19 patients, including hundreds who self-identified as “long-haulers,” the term most commonly used to describe those who remain sick long after being infected.
It wasn’t until late July that the US Centers for Disease Control published paper recognizing that as many as one-third of coronavirus patients not sick enough to be admitted to the hospital don’t fully recover. So Assaf, a technology design consultant, launched Patient-Led Research for Covid-19[ii], released its first report[iii].
Based on 640 responses, it provides perhaps the most in-depth look at long-haulers to date and offers a window into what life is like for certain coronavirus patients who are taking longer—much longer—to recover.
8/12/2020, Wes Ely, a pulmonologist and critical care physician at Vanderbilt University Medical Center who studiesdelirium during intensive care (watch video)[22] stays. “The problem for these people (when coming off ventilators), is not over when they leave the hospital.”
Long term effects are health issues that are caused by an illness, disease, or treatment that lasts for several months or years after infection. Long-term effects can be physical, mental, or emotional and can occur even if the initial illness or disease is no longer present in the body.[23].
This applies to post COVID-19 patients (Long-Haulers), as physicians and scientists from around the globe begin to study these patients post-hospitalization.
To someone entering prison for the first time, they assume that they will still get medical care. The assumption may be that they will also get the same medications that they got on the outside, which is likely not the case.
1st) On Formulary -Available: These medications are available for BOP healthcare providers for inmate’s use.
2nd) Non-Formulary -These require a lengthy Preauthorization Process-: These medications while they are stocked, they are not immediately available for your use. The prescribing BOP Physician or other healthcare provider needs to go through a lengthy Pre-authorization process to get permission to provide this to you.
3rd) Similar equivalents- When there are no other options, here similar or equivalent substitutions are used. Should the need for a required drug be used where there is no equivalent substitute; this medical problem should be brought up before the sentencing hearing, and hopefully get the backing of the US Attorney, and finally the court.
Examples of medication confusion;
Cholesterol Control: PCSK9 Inhibitors vs. Statins. Statins are a popular treatment that has been available since the 1980s. PCSK9 inhibitors, on the other hand, are a new type of cholesterol drug. They were approved by the Food and Drug Administration in 2015.
But these Cholesterol generics look very different, and may not look like what the defendant has been taking – adding to their stress level.
Cholesterol Generics:(multiple colors and shapes, while having similar ingredients)
Generics
These are the drug of choice for the BOP as they are cheaper than brand name medications.
It may be beneficial to inform your client ahead of time that, while they’ll be taking a generic medication since there are many manufacturers who each produce similar generic drugs that may differ in color and shape; they should be appropriate.
Nobody likes surprises, especially if they are entering prison for the first time.
Examples of Lipitor (the generic name is atorvastatin)
The FIT Program is an evidence-based approach designed to ensure that each participant has an individually tailored treatment plan and receives a full-range of services to address their needs. The program will combine three psychology treatment programs, including the Residential Drug Abuse Program, for those who are eligible.
In the most recent publication of the DSM, the DSM-V, PTSD symptoms are grouped into five different clusters. One or more symptoms are required from each of these clusters in order for a patient to receive a full diagnosis.
Stressor– (one required) The person was exposed to injury or severe illness that was life-threatening, which includes actual or threatened injury or violence. This may include at least one of the following:
Direct exposure to the trauma
Witnessing a trauma
Exposure to trauma by being a first responder, such as police, firefighter, medic, or crisis counselor
Learning that someone close to you experienced the trauma
Intrusion Symptoms(one required) – The person who was exposed to a trauma then re-experiences the trauma in one or more ways, including:
Flashbacks
Nightmares
Distressing and intense memories
Distress or physical reactions after being exposed to reminders, known as “triggers”
Unpleasant Changes to Mood or Thoughts(two required) –
Blaming self or others for the trauma
Decreased interest in things that were once enjoyable
Negative feelings about self and the world
Inability to remember the trauma clearly
Difficulty feeling positive
Feelings of isolation
Negative affect, and difficulty feeling positive
Avoidance(one required) – This occurs when a person tries to avoid all reminders of the trauma, including:
Avoiding external reminders of what happened
Avoiding trauma-related thoughts or emotions, sometimes through the use of drugs or alcohol
Changes in Reactivity(two required) – This occurs when a person becomes more easily startled and reacts to frightful experiences more fully, including symptoms of:
Aggression or irritability
Hypervigilance and hyper-awareness
Difficulty concentrating
Difficulty sleeping
Heightened startle response
Engaging in destructive or risky behavior
Difficulty sleeping or staying asleep
All of these symptoms must have persisted at least one month, and they must be causing distress or functional impairment of some kind. These symptoms must not be related to any substance use, illness, or medications.
Also seen: https://www.linkedin.com/pulse/women-facing-federal-incarceration-bop-have-ptsd-dr-m-blatstein/?published=t
Do any of these mental health issues apply to the defendant? Federal prison placement includes Medical and Mental Healthcare needs to be implemented through the BOP CARE LEVELS I-IV along with there Structured Psychological Treatment Programs.
I) Brave Program A first-timer young male offender 32 years of age or younger, facing a sentence of 60 months or more
II) Challenge ProgramA male inmate facing a high-security penitentiary with a current diagnosis of either: Mood, Anxiety, Schizophrenia, Delusion and/or a Substance-induced Psychotic Disorders
III) Mental Health Step Down A male or female who lacks the skills to function in a general population prison setting and is willing to work with Psychiatry Services.
IV) Resolve: A male or female with a current diagnosis of a mental illness related to physical, mental and/or intimate domestic violence or traumatic PTSD
V) Skills A significant functional impairment due to intellectual disabilities, neurological and/or remarkable social skills deficits such as Autism Spectrum Disorder, Obsessive Compulsive Disorder, Epilepsy, Alzheimer’s, Parkinson’s or Traumatic Brain Injuries (TBIs) to mention just a few.
VI) Stages A male inmate with a serious mental illness and a primary diagnostic of Borderline Personality Disorder, along with a history of unfavorable institutional adjustment.
Diversion Sentencing for drug crimes as outlined by the National Library of Medicine. Both appear difficult or aspirational to get a buy-in from the court and then BOP.
Unfortunately, prisons and jails are perfect petri dishes for contagions to spread into their communities via the corrections staff and inmates. Masks along with 6’ of separation are unlikely and problematic to implement.
Focus: 6′ of Separation (Unlikely), Overall testing and contact tracing is not yet available for either the general public or those incarcerated as of this post update 5/9/2020.
COVID-19 in Prisons (Federal, State) and Jails, like Cruise Ships, unfortunately, act as perfect breeding grounds for any kind of virus and especially one that currently has no treatment protocols.
TERRE HAUTE – An inmate at the federal prison complex in Terre Haute who had COVID-19 has died, and three others there also have tested positive for the disease, the Bureau of Prison said Tuesday.
A Federal Bureau of Federal Prisons truck drives past barbed wire fences at the Federal Medical Center prison in Fort Worth, Texas, Saturday, May 16, 2020. Hundreds of inmates inside the facility have tested positive for COVID-19 and several inmates have died with numbers expected to rise. (AP Photo/LM Otero) (Copyright 2020 The Associated Press. All rights reserved.)
Tarrant County Public Health (TCPH) reported 485 new cases of the coronavirus Sunday, of which 423 were caused by the Texas Fort Worth Federal Medical Center prison outbreak. So far, the county has seen 3,695 positive cases and 780 recoveries.
As of Friday 5/8/2020, 823 inmates tested positive in FCI Lompoc (2 have died), and another 644 at FCI Terminal Island (6 have died at the San Pedro facility).
70 inmates test positive at the Lexington Federal Medical Center (FMC) in Lexington, Kentucky, however “communication with [FMC Lexington] has been sporadic, and sometimes it’s non-existent,” Lexington Health Department Spokesman Kevin Hall
COVID-19 continues to spread through Ohio prisons, with the FCI Marion and Pickaway correctional institutions combining for nearly 2,500 confirmed cases of the coronavirus. That is an estimated 80 percent of the inmates in those two prisons.
Union Files National Grievance Over Alleged Safety Violations at Federal Prisons During Coronavirus Pandemic. Forced leave, lack of protective gear, and privacy breaches are among the allegations.
The continued inaction of the BOP to swiftly reduce the population of inmates, particularly the elderly and those with underlying health conditions, is an unfolding story with tragic consequences.
April 14, 2020 (Marshall Project):
Nearly 600 prisoners and staff members are infected with COVID-19 in the federal system. Thirteen prisoners have died. Bureau of Prisons
Brooklyn, NY – Feb 2019: Protest over inmate conditions in front of the Brooklyn Metropolitan Detention Center which partially lost power and heat, resulting in a lockdown.
Bureau of Prisons Implements Partial Lockdown to Halt Spread; The challenge is that prisons and jails are not built to provide 6′ of separation to inmates and correction staff. I have to assume that PPE, cleaning materials and testing for all parties are not diligently implemented.
The Metropolitan Detention Center in Brooklyn, N.Y., had the first known case of coronavirus in the federal prison system. The facility is shown here in February 2019. KATHY WILLENS / AP
New procedures due to coronavirus concerns will last 14 days, after which the agency will re-evaluate. By COURTNEY BUBLÉ
wearing a basic face mask in the community setting to augment our protection against SARS-CoV-2, the virus that causes COVID-19, is biologically plausible, and potentially impactful.
An easy and cheap option for all inmates and correction staff, in either Jail, Halfway House, State, Federal or Private facility. We can argue the efficacy benefit later.
Participants can be referred through staff assessment or self-referral
Autism Spectrum Disorder and ALL OF ITS PARTS, 
Epilepsy, Alzheimer’s, Parkinson’s or
Routine Ongoing Outpatient visits
Not In-patient
Tx plan reviewed every 90 days
A male inmate facing a high-security penitentiary with a current diagnosis of either: Mood, Anxiety, Schizophrenia, Delusion and/or a Substance-induced Psychotic Disorders
VI)
FAQ Home Confinement On COVID-19. BOP Website Displays…..
