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, or how close the inmate is to their release date.
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.
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.
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.
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.
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.
The clinical director has the final say over all Utilization Review Committee decisions. 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’s health record.16 Justification may be based on the category of care sought.
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.
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.
This video covers why your NARRATIVE is critical in your defense. Why? To date, the DOJ has published your Story or Autobiography in the form of your INDICTMENT, which was released everywhere across the net, and if you do nothing – that is what your Judge will read and assume is the gospel truth.
If you don’t agree with 100% of your INDICTMENT, you have a choice: to tell your story through Your NARRATIVE. I hope this Video helps, and I am available for any questions.
I) YourNARRATIVEshould be provided to your Probation Officer 1-2 weeks before your Presentence Interview to be included in your Presentence Report. It impacts STAKEHOLDERS you will meet,
Your Attorney:Aside from your charges, they will learn more about who you are. It may help in your defense.
Your Probation Officer: Following your interview and investigation, they will draft the official Presentence Report based on what they have learned from you. With no NARRATIVE, it will be skewed toward the version of the INDICTMENT. Please take the time to write your NARRATIVE and proofread it and your Presentence Report for accuracy with your attorney.
The Prosecutor will still likely want to convict you but may be swayed by your NARRATIVE.
The Courts /Your Judge usually already has a sentence in mind by the time you get to your sentencing hearing.
If your NARRATIVE was written and embedded within your Presentence Report, your judge likely would have read it, learning more about you than just what was in your INDICTMENT. Depending on your NARRATIVE, judges across the country agree that they want to hear from the defendantsbecause crimes do not happen in a vacuum. Judges want to learn the why. After learning the why, do you take responsibility for your actions? And do you have remorse for the harm caused to the victims of the crime you have perpetrated?
YOUR SENTENCING HEARING: Your First and Only Opportunity To Speak Directly With Your Judge
What Can You Do To Stand Out?
Michael. Santos interviews Federal Judge Mark Bennett on the importance of writing Your Personal NARRATIVE and including it in Your Presentence Report.
These factors help ensure that sentencing decisions are fair and just and that the punishment fits the crime. This is your opportunity to provide your Story, Autobiography, or NARRATIVE of your life and what brought you to this day. Accepting responsibility and Having Remorse for the Victims you Created.
Departure Factors (Woven into the Narrative)
E Factors: E Factors refer to circumstances that may warrant a departure from the sentencing guidelines established by the United States Sentencing Commission. These factors include aspects of the offense or the offender’s background that the guidelines do not adequately consider. Some examples of E factors include:
The defendant’s role in the offense
The defendant’s criminal history
The presence of substantial assistance provided by the defendant to law enforcement
The defendant’s mental or physical condition
Mental Illness: Did this contribute to the crime? Was there a history of significant abuse or trauma growing up? Either way, have you been in therapy? Has your attorney requested that you be evaluated? If there is a current treating therapist, it is best for all if they appear as witnesses. Most judges would rather hear from a treating physician than a doctor for hire. This is not to put down experts, as they provide expert testimony that can only come from a select few.
Was substance abuse involved in your charge(s)? Did you start treatment before your indictment, the guilty hearing, Presentence Interview (PSI), or Sentencing?
All the better, AA, NA, GA, or Psychological Counseling should be included in your PSR and Sentencing Memorandum. Letters verifying either completion or ongoing treatment add credibility.
The defendant’s acceptance of responsibility for the offense
Any other relevant factor that justifies a departure from the guidelines
F Factors (Below Guideline Range Factors): F Factors refer to circumstances that may justify imposing a sentence below the guideline range, even if a departure is not warranted. These factors are also considered under 18 U.S.C. § 3553(a) and include:
The Nature and Circumstances of the Offense
The History and Characteristics of the Defendant
The sentence must reflect the offense’s seriousness, promote respect for the law, and provide just punishment.
The need to afford adequate deterrence to criminal conduct.
The need to protect the public from further crimes of the defendant.
The need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.
YourALLOCUTION. During the judge’s conversation with you, in addition to covering the points below, he/she may want to know, in the end, your REENTRY PLAN or what you plan to do when you get out to not re-offend. This is a short, to-the-point video.
Discuss what “taking full responsibility” means to the defendant.
An acknowledgment that there are victims (e.g., even when the PSR indicates “no identifiable victim,” as it does in most drug cases);
A more impressive Allocution details how the defendant’s criminal conduct affected the victims.
An expression of genuine remorse.
A plan to use prison or probation time productively.
Discussing why the defendant wants to change his or her criminal behavior, perhaps most importantly, information that helps humanize the defendant and the defendant’s role in the crime.
Tell their story, but don’t minimize the seriousness of what your client did.
Judges will sometimes ask a defendant what he/she will do upon release to reduce their need to re-offend.
Show his/her strengths and weaknesses.
If you can show that you are on the same page with the court regarding the seriousness of the offense, the chances of accepting your other statements will increase.
II)Your NARRATIVE: these are some of the STAKEHOLDERS you have not yet met.
1. BOP Office of Designation, Grand Prairie, TX: As part of your Presentence Report, it will impact where they place you, yet you have never met them.
2. BOP Staff; Warden, Unit Team, Case Manager:
For case managers and unit teams, these are employees, and they see hundreds of inmates/people (if not thousands), so how can you differentiate yourself – demonstrate that you are staying out of trouble, doing your assigned job, attending FSA Classes, and doing other constructive work. Reading Non-Fiction, teaching a course, and documenting everything you do (these are ideas I learned from others). Are you an artist? That is important as long as you have constructive interest that can lead to a career after release.
There are few ways in prison to demonstrate an individual’s Personal Growth and Development that prepare them to reenter society as law-abiding citizens. However, using your time constructively is important, as BOP Staff will observe you daily.
Eventually, you will be released. Will you need to work? What are your interests? Is this too early or premature in your sentence to consider this question? Honestly -> No.
Already graduated College – Grad School, consider teaching a course and giving the credit to your case manager.
In the meantime, use your time constructively. Read to learn, which is Non-Fiction on any topic from painting to computers, History to Philosophy. And if you’re serious, which I hope you are, write down the parts that interest you for later use.
III) Sample Redacted NARRATIVE Available
Call 240.888.7778 for a personal one-on-one call to discuss your current issue or that of a loved one.
WHAT TO DO WHEN PRISONS (FEDERAL) FAIL 🥀TO PROVIDE MEDICAL CARE.
* LEGAL REPRESENTATION IS NEEDED – BUT JUSTICE MOVES SLOWLY
Should your client be denied medical care once they have either self-surrendered, were remanded, or are still incarcerated, do they know what to do? Was their medical background comprehensive when provided to their Probation Officer? While this hopefully is a rare occurrence – it does happen, as you have read in recent cases.
However, upon his release, The BOP brought Bardell in his wheelchair to the Dallas/Fort Worth airport in a van, only to drop him off without his wheelchair, bleeding and soiling himself.
…a 47-year-old with a family history of breast cancer discovered lumps in her left breast while in federal prison. Treatment was denied until it was too late to treat – a judge released her on compassionate release.
…a 70-year-old was denied care for so long that he lost an eye, and a judge released him on compassionate release.
…for 7 months, another begged to see a doctor until it was too late, and he died of cancer.
…a 50-year-old male complaining of headaches, but the doctors said he was faking it, was eventually diagnosed with a cancer tumor the size of an egg and died.
On a deeper dive into the availability of medical care in prisons, there is a real possibility that the minimum standard for inmate healthcare, which was established in 1976 by a Supreme Court ruling, could be Stopped-Overturned, using the same legal framework that caused the Overturning of Roe v. Wade in June.
Deliberately withholding treatment from prisoners with serious medical needs is considered “Cruel and Unusual Punishment⚖️” under the Constitution’s Eighth Amendment.
Call 240.888.7778 for a personal one-on-one call to discuss your current issue or that of a loved one.
FOR THE PATIENT/INMATE | LOVED ONES | AND THOSE WITH POWER OF ATTORNEY
Below, I review several methods for clients, now patients/inmates, to advocate for themselves and additional options for their loved ones, family members, and those with Power of Attorney.
This does not replace the need for Legal Representation. While the Eighth Amendment and BOP Regulations [P6031.04 Patient Care] state that medical care will be provided, its availability is sometimes in question. If a BOP Second Opinion Consult is granted, sometimes months to years later, allowed – the local prison Clinical Director is not required to implement those treatment recommendations (Program Statement P6031.04 (Pg. 20-21), that could keep the patient/inmate’s care “Within The Standard of Care” in their community.
Unfortunately, the cases provided are current examples (as of 10/2023). The only proactive step one can take is to provide an accurate and comprehensive background that includes any medical issues they may have. Once included in their Personal NARRATIVE and provided 1-2 weeks before the Presentence Interview to their Probation Officer, it increases the chances of it being included in their official Presentence Report.
Should, on a rare occasion, a medical issue arise before the PSI where the current treating physician feels that the BOP (taking into account staffing issues in the BOP in general or at their Federal Medical Centers, or for other medical reasons), other actions may be indicated.
According to the BOP Policy, the court cannot order the BOP to provide specific medications, which may include treatments; BOP National Formulary Part I, 2022. Page 4, #9. Further, they appear to recommend consulting with BOP Counsel for that Region – so does it make sense to get their input before sentencing rather than after incarceration?
Ensure your client knows the dos and don’ts of the environment they’re about to enter – for it’s another world with a different set of rules.
HOUR ONE – IS AN EMOTIONAL SHOCK
Understanding the importance of the Administrative Remedy is just a part of the Preparation and Knowledge Process. Knowing what to expect in prison – before their first day contributes to reducing the fears they and their loved ones naturally are going through. Having been through this, please prepare them because it will benefit them in many ways.
Realizing that there are no guarantees, preparation provides them with the information needed to stay out of trouble as well as how to navigate and work to gain the maximum benefit from the First Step Act Programs (should there be enough support staff), RDAP, Second Chance Pell Grants for College Courses, and overall work on their personal development. All of this is helpful as they approach their early release date.
Not being personally prepared (I was also not a great client, as I was that deer in headlights) was a driving force that allowed me to be here with you today. Yes, I had a felony in 2006, but with colleagues’ support, my practice license was reinstated in 2010.
Transitioning from patient care to preparing those facing their life-altering event is my way to give back and is self-rewarding in its own right – a worthwhile career change.
The Bureau of Prisons (BOP) encourages inmates to utilize the Administrative Remedy Process to address grievances.
It is advised that the patient/inmate maintain an accurate written timeline of events on a calendar and
Please keep four copies (and the original)of all relevant documentation for future reference. This practice will help keep track of important details and ensure all necessary information is readily available.
Use email when available.
ONLY ‘1’ COMPLAINT PER ADMINISTRATIVE REMEDY REQUEST IS ALLOWED, AND EACHBP 8, 9, 10, 11, AND 2241 MUST HAVE THE SAME COMPLAINT.
The patient/inmate is to include copies of all previously submitted documents in their current complaint, with Minimal need for changes in wording.
Keep 4 copies of all original documents for future use.
Take copies of everything and keep the originals.
Ensure to document all pertinent information about the incident, including the specific Day, Dateto whom you Have Spoken, and The Time → of The Incident.
Not the date you are writing or filling out this form.
You’re expected to try and resolve the matter through a simple conversation with your counselor or (case manager), the BP-8.
Include; (1) THE DATE OF THE INCIDENT IN YOUR BP-8, (2) THE NAME of the individual(s) with whom you spoke, (3) WHY YOUR REQUEST is being made, and (4) WHAT YOU’RE ASKING FOR.
Each facility has its own rules. To start the process, speak with your counselor (BP-8) first to learn how their process works.
When the counselor responds, remember what they tell you – with attention to detail, write your notes later and note the conversation’s date, content, and time.
Once the counselor explains the process, follow the process strictly. Write the date that the incident“Happened,” not when you filled out the form – unless it’s the same date.
Supplies to get started;
If you can access a copy machine, make 4 copies of everything (possibly in the library). You may need a pen, tablet with paper, envelopes, and likely stamps. If there is no copy machine, you can handwrite 4 copies of everything – written precisely the same to be used on future BP Forms if needed.
A Calendar is critical.
With No Response or Negative Responses – Keep Track of the Days For Each BP 8, 9, 10, and 11.
Deadlines are also critical; the BOP staff may be Late. You are not given that same grace period; if you are late, the staff may reject the complaint because the time to complain has expired.
Write down the day the incident happened.
Write down the day you made the informal complaint (which has to be within 20 days of the incident – or Sooner).
Although a person in prison must adhere to the deadline of [“#”] days, staff members are not required to respond, nor do they have to respond.
Nevertheless, you must show that you attempted to resolve the matter with an informal complaint.
If there is no counselor available, you should record that the counselor is unavailable and then write a letter requesting that;
TheWarden treated the letter as a BP-9, Administrative Remedy Appeal, or
The Regional Director treated the letter as a BP-10, Administrative Remedy Appeal, or
The Central Office treats the letter as a BP-11, Administrative Remedy Appeal.
START Each BP with the date and time of your original informal complaint (BP-8, attached), then (BP-9, attached), etc.
The date of the 1st incident is located in the BP-8 (but not the Date the BP-8 was Written)
OPTIONS;
You did not receive a response to your informal complaint. Write that no one responded to your complaint, and you filed the (NEXT BP # and Form IN SEQUENCE) to comply with deadlines.
If you received an unfavorable response, 1) Reply that you disagree with the decision on the complaint. 2) This is why you’re filing the (NEXT BP # and Form IN SEQUENCE) for a formal administrative remedy request.
If you’ve missed the deadline to file the formal complaint, you must explain the reason why. 1) For example, if you were sick or locked in the SHU, nobody provided you with a BP form. Do your best to comply with the deadlines because the BOP likes to Deny-Deny-Deny.
END Each BP Form by noting how you are submitting it.
When submitting the form to the counselor, add or include their name, date, and time.
If you are putting the form in the unit mailbox, indicate the date and time you put it in the unit mailbox.
If you are in the SHU and have to submit it to a staff member, write down that person’s name and the date and time you hand the form to them.
Include; (1) THE DATE OF THE INCIDENT IN YOUR BP-8, (2) THE NAME INDIVIDUAL(S) with whom you spoke, (3) WHY YOUR REQUEST is being made, and (4) WHAT YOU’RE ASKING FOR.
THE PROCESS STARTS
…with the “Informal Complaint,” or BP-8, or Cop-Out, that one requests from their Case Manager. At best, this is an informal conversation with your Case Manager to resolve the issue.
With No Response or a Negative Response within 24 hours – The Formal Process Begins. The next day…
The Patient/Inmate Next Requests a BP-9 from their Case Manager, who “Logs” this for the Record. This one goes to The Warden.
A 20-Day Clock Starts – and keeping track of the Days is Critical – Because if Late, the STAKEHOLDERS May Choose to Use It’s Being Late To Deny Your Request.
Include copies of everything previously sent (BP-8 or Cop-Out).
With No Response or a Negative Response within 20 Days
The Patient/Inmate requests a BP-10 from their Case Manager, who “Logs” this for the Record. This one goes to The Regional Director in your Region.
The 30-Day Clock Starts – and keeping track of the Days is Critical – Because if Late, the STAKEHOLDERS May Choose to use its Being Late To Deny Your Request.
Include copies of everything previously sent (BP: 8 or Cop-Out, 9).
With No Response or a Negative Response within 30 Days
The Patient/Inmate requests a BP-11 from their Case Manager, who “Logs” this for the Record. This one goes to The Office of General Counsel in Washington, DC.
1)The 40-Day Clock Starts – and keeping track of the Days is Critical – Because if Late, the STAKEHOLDERS May Choose to Use It’s Being Late To Deny Your Request.
File your BP-11 at the following address: Bureau of Prisons, National Inmate Appeals Administrator (Check against BOP List; if different, contact as many as possible.)
James Wills, AD/General Counsel, BOP Office of General Counsel, 320 First Street, NW, Washington, DC 20534, (202) 307-3198, Certified – Return Receipt.
Rear Admiral Chris Bina, BOP Assistant Director, Health Services Division, 320 First Street, NW, Washington, DC 20534, (202) 307-3198, Certified – Return Receipt.
With No Response or a Negative Response within 40 Calendar Days
“The Central Office has 40 calendar days to respond as of the date it is received, which may be extended for An Additional 20 Calendar Days.” (“FBOP Administrative Remedy Program – Washington, D.C.”)
First, 👉Maintain an organized file to keep track of your loved one’s conversations and care, including dates, names, phone numbers, and steps taken.
Request a written detailed description of the issue with contact information for further details. KEEP COPIES OF EVERYTHING.
You could compose a respectful letter to the warden advocating for your loved one. Certified – Return Receipt.
Present the facts, describe the issues, suggest possible solutions, and ask for inquiry, communication, and collaboration. Help is what you’re asking for, and you’ll “await” their reply (I look forward to hearing from you).
If a loved one is in jail and requires medical attention, it is essential to take specific actions to ensure they receive appropriate care.
Request a written response from the Warden concerning your loved one’s medical condition and proposed treatment plan.
This will provide valuable insights into their health and the measures being taken to address any medical concerns they may have.
It’s a good idea to contact your loved one’s treating family doctor for additional support.
This could prove particularly beneficial if you have concerns regarding their current treatment plan or feel they aren’t receiving adequate care while incarcerated. The doctor could provide you with a letter to attach containing more insight into their condition and suggest ways to ensure they receive optimal care.
By staying informed and advocating for their medical needs, you can help ensure they get the right care – but no promises.
You’re creating what I call a Paper Trail, which lets all parties know that someone else is watching.
Send copies of your complaint letter to relevant officials, including the prison’s medical director, but if you cannot contact the prison, there is always a,
Medical Director, there is always The BOP Assistant Adm. addresses above) and your loved one in prison. Keep all originals for yourself. Check the BOP website and below for addresses.
Copy everybody.
👉Contact your member of Congress. To find your U.S. congressional representative, visit www.house.gov[xii] and enter your zip code. The name of your member will appear.
Call your congressional representative’s local office. Ask the staff member to whom you should send your letter.
Present the problem, stating the facts and your concern. Describe the efforts you and your loved one have taken to resolve the problem and ask that your congressional representative investigate the problem.
Then, follow up with a pre-set appointment-telephone call.
Second. 👉File a Formal Complaint Directly with the Facility and look up the prison contact information.
1) Find Your Prison Warden, or Warden Assistant or secretary,
3) Include the Patient /Inmate Number and Location
4) You can both call and write respectfully.
Include that you’re concerned about your loved one’s medical needs and their lack of care, sending a letter to the Warden.
Attaching a letter from their physician (at home) to provide additional context may be helpful. Certified – Return Receipt.
5) The BOP is a vast government agency. The new BOP Director, Peters, is doing her best to change its culture, so continue your advocating efforts.
Third. 👉If the prison did not resolve your complaint, file a complaint with the Bureau of Prisons (BOP) Regional Office (Above) that oversees the facility.
Bureau of Prisons, Headquarters, or the Department of Justice – Office of the Inspector General (2 contacts)
James Wills, AD/General Counsel, BOP Office of General Counsel, 320 First Street, NW, Washington, DC 20534, (202) 307-3198, Certified – Return Receipt.
Rear Admiral Chris Bina, BOP Assistant Director, Health Services Division, 320 First Street, NW, Washington, DC 20534, (202) 307-3198, Certified – Return Receipt.
Video PPRSUS. 14 explains how medical care is provided in federal prisons. The caveat can be read in recent reports in the news:
1 IN 4 INMATE DEATHS HAPPENED IN THE SAME PRISON. WHY? Being proactive includes obtaining a comprehensive medical history long before the Presentence Interview and setting foot in prison. With staffing shortages, this may not even be enough.
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 Program:A male inmate facing a high-security penitentiary with a current diagnosis of either Mood, Anxiety, Schizophrenia, Delusion, and/or 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) ResolveA 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, a primary diagnosis of Borderline Personality Disorder, and a history of unfavorable institutional adjustment.
VIIa) Sex Offender Non-Residential Single Sex Crime or first-time Internet Sex Offense
VIIb) Sex Offender Residential Multiple sex crimes.
Medication availability falls into 3 tiers; this video helps explain whether your medication will be available by comparing your medication against those on the BOP list available online.
+3 points for each prior sentence > 1 Year + 1 Month.
+2 points for each prior sentence > 60 days, not counted above.
+1 point for each prior sentence, <= 60 days not counted above, for up to a maximum of 4 points in this category.
+2 points for each revocation with a new charge or under federal supervision.
+ 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points as noted above because the sentence was treated as a single sentence, up to a total of 3 points for this subsection.
Published by the criminal defense lawyers at Pate, Johnson & Church. Here, they provide the following 12 successful case examples of Compassionate Release,
The COVID Prison Project appears at first glance to be a great resource as it tracks current data and policy while monitoring COVID-19 and the number of
…COVIDCases, Deaths, and Vaccinesthat are given, as recently as 7/8/2022. It appears that the site updates at regular intervals.
You’ve been allowed to self-surrender to a minimum federal prison camp – but find yourself in isolation (or solitary confinement), because your paperwork has not arrived. This does happen, and can be avoided!
For the purpose of this article, we are going to examine the process that follows after the court agrees to let your client self-surrender.
Up until this point, there has been the back and forth between defense counsel, the U.S. attorney, and lastly the court. The defendant’s number one job has been to get their affairs in order and then to show up on the specified day, at their BOP Institution.
The process of getting the court’s order delivered to the specified BOP Institution on time is, for the most part, considered something that automatically happens as the next step in the process. But it is this author’s opinion that at times, the council should reflect on President Ronald Reagan’s famous quote; Trust – But Verify…
Because, in this case, here we have Trust, without the Verification. I offer the following so that more care and empathy for your client can be taken, as you guide them completely through this process.
These steps I believe will help to ensure a smoother, self-surrendering process;
Verify with all parties that: the receiving facility is in receipt of all the required judge’s orders for your client’s arrival – before they get there, 18 U.S.C. § 3621(c).
If your client is ultimately designated to a ‘satellite’ camp, let them know ahead of time that they have to present themselves to the adjacent, ‘higher secure facility – and not to the satellite camp.
Also let them know that at the higher secure facility, they are likely to see prisoners in handcuffs and shackles, guards with long guns, guard towers, etc., so they are not caught off guard.
This is because each client will deal with the emotional aspects of “prison” in their own way, especially if it’s their first time.
There they will be screened and given a change of clothes. The clothes that they came with along with peripherals, will then be boxed and returned to their ‘legal residence’.
Their birth certificate, passport, driver’s license, and social security card all will be kept, to be returned at the end of their incarceration.
Whatever legal papers you have accumulated, just like medical records, these copies can be kept with you as your own personal records. Your PSR, I believe is not allowed to be brought in with your other personal items.
What happens if you depend solely on the process, and do not verify that the court’s orders have preceded your client’s arrival?
Your client was allowed to self-surrender, and the rest was an ‘assumed formality’…
Upon your client’s arrival, the prison’s guards at receiving had not received any of the court’s orders regarding their sentenced incarceration – which does happen, no matter how infrequently.
Policy-wise, once they have your client’s birth certificate, passport, driver’s license, and/or social security card, this may only allow the facility to hold your client (meaning that they will not turn your client away), but likely will not allow them to formally admit them into the institution.
This ‘hold’ option further may also involve moving your client into an ‘isolation’ cell until the court order arrives, which according to staff, “may take up to a month”.
A core value in this author’s opinion is verifying that the institution has received all of his/her required court-ordered intake documents, before your client’s arrival.
Attorneys’ Reputation and Future Referrals: No one really wants to go to prison. Therefore, while this defendant (and their family), may or may not turn out to be a great referral resource, bad reviews on the other hand can come from anywhere and travel at lightning speed – case in point.
For those of you who already do this, your clients are grateful – even if they don’t know, or show it.
In ALL cases, preparing for the Sentencing Hearing should start as soon as possible. Why? a) Depending on whether it’s a state or federal case, there may only be weeks (or months) after the guilty verdict. b) Getting all medical records via the HIPPA release can take a long time as some physicians and hospitals have been busy, especially in the age of COVID-19. HIPAA-COMPLIANT AUTHORIZATION FOR THE RELEASE OF PATIENT INFORMATIONPURSUANT TO 45 CFR 164.508. c) Coordinating character references, expert witnesses, and documentation for their PSR all takes time. d) Developing the PSR, along with recommendations for placement, takes time.
I- The Presentence Report is used by; 1st) Judges To establish the length of the sentence, along with they have the option to make a placement request.
2nd) The BOP, For Use It For Facility Placement.
3rd) Probation: Use 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 based on;
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 with a new charge or 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 toMedical and Mental HealthcareCARE LEVELs. Psychology and Life Skills National Programs have now been embedded into the First Step Act, with its limited availability and associated security requirements. There are approximately3,500 Medications in the BOP, which fall into 3 tiers. PPRS Prison Match™ has all of these drugs categorized by tier level should this apply to your client. Is there a special diet request? 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 (may get point reductions). Voluntary Surrender (gets point reductions). Drug / Alcohol Abuse may allow RDAP. RDAP; Required usage is within 1 year prior to the 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 Males 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 the 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 has 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 TrainingProgram in 2016. The Participants are federally imprisoned military veterans housed in a special wing responsible for training service guide dogs for veterans with mobility impairments, Post Traumatic Stress Disorder (PTSD), or other military service missions.
If you’d like to discuss this, I look forward to speaking with you.
By now, the judge has already read your Presentence Report and hopefully your Personal Narrative, where you’ve explained how you arrived at this point in your life, standing before the court today. You have the opportunity to show the court that you take responsibility for the harm you’ve caused your victims, that you’re committed to making things right, and that you’re determined never to return to this courtroom. This is your moment to make a strong impression, and it’s important that you seize it.
SENTENCING MEMORANDUM
Judge Scola notes that sentencing memorandaare the first opportunity for lawyers to make a positive impression on him. “I am very impressed with lawyers who show legal advocacy in their presentence memorandum ondisputed guideline issues. I appreciate lawyers who give me everything I need well in advance of the hearing.”
Your Sentencing Memorandum is written by your attorney and provided to the court approximately 7-10 days before the day of your sentencing hearing and can be provided in written or written and video format. As you have initially read several examples of your attorney’s writing style, you have both agreed on your memorandum’s final message.
Depending on the number of “Character” Reference Letters, the best (3 or less) have been attached, summarizing their common theme in the Memorandum, then noting that there are (for example) another 27 that you have provided to your Probation Officer. They have all been reviewed to ensure that none will come off as insulting to your judge. Also attached is your Personal Narrative, Release Plan, and possibly your Allocution, depending on how nervous you are or will be at the time. If needed, the Allocution can also be in Video format, and if financing is an issue, a smartphone can be used. What Federal Judges Want to Know at Sentencing.
Judges across the country have been interviewed, and here are their thoughts – ‘From the Bench.’
Judge Xinis has expressed a dislike for sentencing memos that appear to be copy-paste jobs. She believes that simply citing legal precedents without providing relevant information about the defendant does not serve the memo’s purpose. Instead, Judge Xinis prefers that lawyers explain why a variance is justified. She also wants lawyers to start with the offense and the defendant’s details upfront, as she is interested in the facts of the case.
Experienced lawyers provide me with information about the 3553(a) factors and explain why a deviation from the guidelines is warranted. If a case involves excessive punishment, they elaborate on the legislative history or the U.S. Sentencing Commission history behind the guidelines, if such exists. Additionally, they clarify how a guideline sentence could undermine the community’s respect for the law.
Judge Xinis is a dynamic and engaged judge known for her active involvement in the proceedings. She takes pride in asking a lot of questions and welcomes live character witnesses to the court. Judge Xinis is particularly interested in live testimony from mental health professionals and is known to engage them on specific points in their report. She believes that lawyers can significantly impact the sentence by presenting a strong argument in court.
She encourages lawyers to present a compelling argument on why a prison sentence should not be the default sentence and what sentence would be sufficient but not greater than necessary. Judge Xinis is committed to ensuring a fair and just trial, and her passion and dedication to her role is evident in every case she presides over.
Most judges, including Judge Mehta, consider the failure to submit a sentencing memorandum as a missed opportunity for legal advocacy. This document is of utmost importance as it provides an opportunity to explain why the defendant committed the crime and demonstrate that they have undergone a positive transformation since the offense. It is also a chance to showcase the steps taken toward rehabilitation and assure the judge that the defendant is less likely to re-offend. For instance, individuals who have successfully overcome substance abuse addiction demonstrate to Judge Mehta that they possess genuine strength of character and are less likely to commit crimes again.
Live testimony is an essential aspect of a case, particularly when it comes from mental health experts. Judge Mehta finds it helpful because it allows him to question the witnesses directly. He also prefers character witnesses to speak in person rather than sending a letter. Notification to Judge Mehta’s chambers several days in advance is all that is required to request live testimony. Judges agree that when evaluating cases, both live testimony and data and statistics from similar cases, including those related to mental health, are crucial.
It is highly advisable, particularly in complex cases, to submit sentencing memoranda and letters early on, according to Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia in Washington. To ensure a thorough review, it is recommended that these documents be submitted several weeks before the sentencing date.
Judge Charles R. Breyer of the U.S. District Court for the Northern District of California in San Francisco, who is also the vice chair of the Sentencing Commission, expressed concern about lawyers who fail to realize that they can request a recess to speak with their clients if they begin to play the victim or blame others during allocation.
When preparing a sentencing memorandum, it is important to minimize the use of citations. Refraining from quoting or citing Booker, Kimbrough, Gall, or the 3553 factors is recommended. Rather, an effective alternative is to create a sentencing video. This approach can save time and compellingly showcase the defendant’s regret and personal connections through well-spoken character witnesses. It is also crucial to own up to the offense and express sincere remorse, emphasizing that the defendant is typically a responsible and productive member of society who made an uncharacteristic error.
Point out instances of disparity by showing what sentences other judges in the same district are imposing on similarly situated offenders in similar cases. Use data from the Sentencing Commission, including national data and statistics, i.e., Interactive Data Analyzer (IDA). Judges are more likely to follow the sentencing patterns of their peers in the same district, state, and circuit. Finally, consider starting a restitution program. Even a small amount is better than nothing.
Call 240.888.7778 for a personal one-on-one call to discuss your current issue or that of a loved one.
BOP Prisons and Jails 2020 | Unprepared | COVID-19
COVID- 19 in Prisons and Jails are unprepared and may now be forced to recommend, in some cases alternative diversion sentences and/or home confinement.
I can only believe that the PSR could play a significant role in this process.
Six feet apart, unlikely
Prisons and Jails (, like Cruise Ships, act as perfect breeding grounds
Inadequate access to medical care poses a severe threat to a population that is already more vulnerable to coronavirus: there are about 10,000 people over 60 in federal custody, and about a third have pre-existing conditions. Photograph: Jonny Weeks/The Guardian
In prisons and jails across the deep south, coronavirus threatens to overwhelm
chronically underfunded, understaffed and overpopulated facilities
You ask why and I have no idea. But these revelers are now on their way home to spread the virus throughout their families, friends and fellow workers’ personal space. Yet another vector.
The spread of COVID-19 from these beaches will ultimately whether direct or indirectly impact our society and prison system.
Couple this with the unprecedented delay of the federal government to act in any manner to assist state governors since January 2020, COVID-19 has exploded across the country exponentially! These same prisons and jails are already overcrowded, resulting in a healthcare disaster ready to get out of control.
ICE Now could be another vector waiting to explode, impacting immigrants and ICE officers alike. While ICE claims to “have a plan”, the horse has already left the barn.
Trump disbanded the NSC pandemic unit that experts had praised
Public health and national security experts shake their heads when President Donald Trump says the coronavirus “came out of nowhere” and “blindsided the world.”
very impressed with lawyers who show legal advocacy in their presentence memorandum ondisputed guideline issues. I appreciate lawyers who give me everything I need well in advance of the hearing.”
