Getting the PSR right – Before the Sentencing Hearing.

Getting the PSR right – Before the Sentencing Hearing.
Photo Credit: The Marshall Report.

Photo Credit: The Marshall Report.

Imprisonment is a frightening experience for both your client and their family. Counsel and family can assuage some of these fears by addressing your client’s healthcare and program needs and where they intersect with those provided by the federal bureau of prisons before the sentencing hearing.

Role of the Presentence Report (PSR), at the Sentencing Hearing

The Presentence Investigation Report (“PSR” or “PSI” or “PSIR”) plays a critical role in Sentencing Guidelines, departures, and statutory sentencing considerations. From the judge at sentencing to the Probation Office’s use during Supervised Release, the PSR is considered a gospel fact about the defendant that continues to follow them after release as a permanent part of their record.

Once in BOP custody, the PSR becomes a bible about the inmate. The BOP’s interpretation of the PSR drives its decisions about security level, prison placement, programming, pre-release, and even medical care. The inmate’s federal prison life depends on that PSR.

One cannot overstate the PSR’s importance or the need for it to be accurate the first time. Asking to change the PSR later asks a court to change positions that it has already adopted as accurate. Even if this can be done – a big if – the amendment process can take years and many billable hours to complete.

Should there be a medical or mental healthcare issue, the PSR drafting process is the time to get it right. An inaccurate PSR can mean a lack of consideration at sentencing and inappropriate or absent care after imprisonment.

For example, if kidney dialysis is necessary, submit related physician notes to the Probation Officer through their PSR. If the defendant is undergoing liver dialysis while waiting for a liver transplant (Mars, for their transition period until they receive a liver transplant), make sure all events are documented as this author does not believe that dialysis is available for liver disease.

  • Everything is important, from osteoarthritis and degenerative joint diseases to food allergies and medically necessary diets. 
  • Everything needs to be documented, including how any maladies would limit “activities of daily living” (ADL).  Patient-inmates are considered ‘independent’ if they can accomplish their Activities of Daily Living (ADL) – things like dressing, bathing, and eating – on their own.
  • Then there are the Prison Activities Of Daily Living (PADL), due to the aging of those incarcerated.
  • Medications must also be identified to estimate which prescription drugs the BOP will make available. It is critical to identify whether the prescribed medications are available on formulary, or if they require a request for either non-formulary or are just not available.
  • As mostly generic medications will be provided, counsel your client that the same drug may be available in different sizes, colors, and shapes.
  • Understand that the BOP will discourage the use of non-formulary medications by requiring that they need special approval. More likely, BOP physicians will just switch the inmate’s treatment medications to those that are similar equivalents. Do you know which medications are either available and on formulary, or non-formulary, and what your options are?

These issues should be addressed with the court before incarceration because after incarceration the court has no real oversight. Letters from the client’s personal physicians should provide documentation about their prescription selection, and reasons why “similar” medicines are not appropriate for individual inmates, and the medical reasons why the only option is to continue the current medical standard of care.

Today the BOP uses a complicated method to convert a person’s medical diagnoses and treatments into a CARE LEVEL Classification Level. Classifications range from CARE LEVEL I for the healthiest inmate-patient, to CARE LEVEL IV for gravely ailing inmate-patients who need ‘in-patient’ care. Each facility then is identified by both a Security Level and this CARE LEVEL structure, where the inmates are placed accordingly.

Why accuracy is key?

Because one incarcerated, if you’re lucky enough to get a medical 2nd opinion, their treatment recommendations do not have to be followed and can take years to get to that conclusion.

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

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