Archive July 2018

Getting the PSR right before sentencing.

Getting the PSR right before sentencing.

Abstract

Imprisonment is a frightening experience for both your client and their family. Counsel and family can assuage some of these fears by addressing federal prison healthcare both before the sentence begins, and while the inmate is in Federal Bureau of Prisons (“BOP”) custody.

Role of the Presentence Report

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 gospel fact about the defendant.

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 and 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. 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.

Medications must also be identified to estimate which prescription drugs the BOP will make available. It is critical to identify whether given medications are available on formulary, or if they require a request for non-formulary medications. Understand that the BOP will discourage non-formulary medications that require special approval. More likely, BOP physicians will just switch the inmate’s treatment medications to similar equivalents.

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.

Today the BOP uses a complicated method to convert a person’s medical diagnoses and treatments into a CARE LEVEL Classification. 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, and inmates are placed accordingly.

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