Before the Sentencing Hearing – The Defendants Future lies in their Presentence Report (PSR)
The Federal Bureau of Prisons (BOP) Designation and Sentence Computation Center (DSCC), in accordance with Program Statement 5100.08, evaluates all relevant information collected (in part through the Presentence Report) in determining a defendants specific prison placement, while the judge determines the length of the sentence by implementing the United Sentencing Table Guidelines (USSC).
Collectively, the Presentence Report (PSR) plays a critical role in determining your client’s future. This includes their length of time incarcerated together with prison placement;
- impacts a defendant throughout their term of confinement,
- follows the defendant after incarceration while under supervised release,
- and finally, it becomes part of their permanent record.
- It is therefore critical that the PSR be as accurate and complete as possible. How Federal Prisoners Are Placed – Frost | Bussert LLC
- The Presentence Report, often referred to as the ‘Inmates Bible’ effects every decision during an inmate’s time in federal custody. Getting it right from the outset is paramount.
In drafting a request for prison placement or designation, it’s helpful to include the points below in terms of the ‘reasons’ underlying them -by Alicia Vasquez and Todd Bussert (with attached documentation), into their PSR. Eventually these ‘framed recommendations’ may become part of the court’s Judgement and Commitment (J&C) orders imprisonment section, and together could lend itself towards BOP acceptance.
- Your client’s Medical (and Mental) Healthcare Needs; and how they fit into the BOP Care Level I-IV Structure.
- Medication availability: either on Formulary, Non-Formulary or just not available.
- Your client’s legal release residence.
- Your client’s programming needs, there are specific BOP Programs that address Mental Illness and other Psychological Issues.
- Public Safety Factors (PSF,- P5100.08, Chapter 5; Pages 12 – 13) can be used to either reduce or increase a security level.
- Increased security measures to ensure the protection of victims/witnesses and the public including Security Threat Groups; if any.
- Determining incarcerated security levels, options range from:
- Camps: either an FPC Minimum or a Satellite Minimum
- Then facility security ranges from LOW, Medium, High to USP, Supermax and Administrative.
- Judicial recommendations (per – 18 U.S.C. § 3621(b)), can be included in their ‘J&C (judgment and commitment) order’s imprisonment section’.
Accurately prepared, the Presentence Report together with a qualified placement request that includes ‘framed recommendations in terms of the reasons underlying them’, lays the groundwork for the best possible judicial recommendation, along with a potentially successful BOP placement outcome.
Document, document, document,…the best way to influence a judge’s ‘preconceived selection of a tentative sentence before the hearing’, maybe to file a sentencing memorandum that uses the §3553(a) factors to demonstrate why a sentence below the guideline range is “sufficient, but not greater than necessary”, to achieve the goals of sentencing. It should also include character letters (or videos) from people willing to offer insight into the defendant’s true nature, notwithstanding their awareness of the offense(s) of conviction; it will go a long way toward achieving the sentence you want.
Waiting until the actual hearing to make your sentencing and placement case makes it far less likely that the court will give appropriate weight to your position. Therefore filing your sentence memorandum at least a week before the sentencing hearing will go a long way to making a strong case for the sentencing outcome you seek.
If your client has a physical or mental impairment – drug or alcohol dependency issues; corroborate the issue with a doctor’s letter and/or report and with medical/treatment records (under seal, preferably via the Probation Office so that the information is appended to the Presentence Report and given to the BOP).
‘Similarly, if your client has a military service record or a history of good works, provide these appropriate documents or testimonials.’
Alan Ellis: Federal Prison Guidebook 2019, §13:10 TIPS ON GETTING YOUR CLIENT THE LOWEST POSSIBLE SENTENCE, James Publishing, Inc.
The Sentencing Hearing
Here the judge rules on the length of sentence, understanding that the BOP determines facility placement: both are dependent in part on the defendants PSR and Program Statement 5100.08.
Don’t let this be a missed opportunity!
- The judge’s determination of the length of a sentence is dependent in part on the PSR and probation officers’ potential recommendation.
- Prison placement/designation is not currently part of most law school curriculum as they do not teach in detail the nuances regarding the sentencing and placement processes.
The Courts PSR Development Process
The PSR and Presentence Interview (PSI) are formally completed by probation officers, but it’s up to the legal team and defendant to proactively gather all of the required documents (medical and non-medical alike along with testimonials) for use by the probation/parole officers (the court’s representatives). While there are many variables, probation officers utilizing Program Statement 5100.08: investigate, interpret and include all of these records into the official court’s PSR, and at times, passing on sentencing and/or prison placement recommendations to the court.
During a 2015 meeting I had with a local federal public defender mitigation specialist, he revealed the BOP’s at times less than optimal inmate placement regarding a specific client’s mental healthcare needs.
Currently, the medical portion of the PSR does not follow either the paper format that has been used by the medical community in the past or the current electronic medical record (EMR) format model that is used by most healthcare providers today. This, in turn, may lead to the inaccurate intake of the defendant’s medical records, (no matter how rare), possibly resulting in a less than optimal facility placement.
The remaining, albeit significant challenge, is a political one; that being the removal of the word ‘felony’ (in certain cases) from a defendant’s record. This is because the word ‘felony’ which appears on most job applications may prohibit the offender from reentering the job market before they ever get the opportunity to appear for an interview.
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