Drug Abuse

The Irrational Policies of Federal Drug Treatment for Criminal Offenders

It is now commonly understood that substance abuse problems play a major role in criminal behavior. Attempts to address this well-documented correlation have resulted in untold millions in taxpayer funds consumed by prison-based drug treatment programs that have been largely unsuccessful in reducing imprisonment rates or the percentage of those imprisoned whose crimes relate to substance abuse.

One of the most expensive efforts in this regard is represented by the Federal Bureau of Prisons (BOP) Residential Drug Abuse Program (RDAP). In 2013, the last available public reporting, the BOP spent $109,313,000 on drug treatment, which includes RDAP. The program operates in more than 60 BOP correctional facilities, employing an army of psychologists, referred to as Drug Treatment Specialists and correctional staff. Some 14,482 inmates cycled through RDAP in 2012, the last available public record, and BOP officials have claimed success by pointing out that RDAP graduates recidivate 16% less than the BOP population as a whole.

Yet, even a cursory analysis of the numbers and the policies that drive them suggests that RDAP is a failure on many levels. Beyond the fact that those deemed eligible for the program tend to possess attributes that make them less likely to return to prison in the first place, a close examination of RDAP’s policies reveals this expensive program is designed to exclude the very population that would benefit most from intensive drug treatment, and whose recidivism takes a massive toll on their communities and society at large.

On this page, we’ll look at how and why RDAP should be deemed an expensive failure and how the same funds and other resources could be more effectively used to impact recidivism and substance abuse among criminal offenders.

The Federal Bureau of Prisons, 18 U.S.C. § 3621, and Drug Treatment

The Federal Bureau of Prisons is the largest correctional agency in the Western world, with around 220,000 inmates in its 120 stand-alone prisons, not counting the 65 satellite prison camps which are located adjacent to many of these federal prisons.

Even by government standards, the BOP is monolithic, consuming great quantities of taxpayer funding. For FY 2014, President Obama’s proposed budget includes a staggering $6.9 billion for operating the Federal Bureau of Prisons – nearly a quarter of the entire Department of Justice (DOJ) budget and second only to the Federal Bureau of Investigations among DOJ agencies for spending.

After the passage of the Sentencing Reform Act in 1984, which eliminated parole in the federal prison system, Congress looked to substance abuse treatment as a tool to reduce incarceration rates.  In 1990, Congress amended 18 U.S.C. § 3621, which governs the imprisonment of those convicted of federal crimes, to provide that “[t]he Bureau shall . . . make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Pub. L. 101-647, S. 2903, 104 Stat. 4913. Four years later, Congress again amended § 3621 to incentivize inmate participation in BOP drug programs, adding “[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” Pub. L. 103-322, S. 32001, 108 Stat. 1897, codified at 18 U.S.C. § 3621(e)(2)(B).

As discussed below, the BOP defined the term “nonviolent” in a very narrow way, excluding many from the early release benefit. Still, the Bureau has a wide field of inmates to choose from. Almost 90,000 men and women confined in the Federal Bureau of Prisons are serving time for drug offenses, and many more with a history of substance abuse or a reported contributing factor of substance abuse leading up to their offense.

BOP Substance Abuse Programs: Drug Education, Non-Residential Treatment, and Residential Treatment

At present, the Federal Bureau of Prisons operates several types of drug treatment programs, starting with a “basic” 40-hour program, informally called the “Drug Education Class. This program is mandatory for any inmate with a history of substance abuse.  Figures from 2011 indicate that 31,803 inmates were enrolled in the basic program, with more than 51,000 on waiting lists that year. No early release benefit is included for participants of this program.

Next on the list is the BOP’s Non-Residential Drug Abuse Program, or NR-DAP, which is available for inmates who volunteer for it. BOP policy dictates that participants of this program must meet for at least 12 weeks. Practice indicates that these 12 weeks of drug treatment are usually held during a 6-month period. Participants in the non-residential program do not receive an early release benefit but are recommended for maximum halfway house placement upon the completion of their term of incarceration and are viewed as program compliant.

The crown jewel of the BOP’s drug treatment program is its Residential Drug Abuse Program (RDAP). Inmates who complete RDAP are the ones who may receive an early release benefit of up to one year, provided they complete its various components. Some 14,000 to 15,000 inmates participate in RDAP each year at the over 60 RDAP locations scattered across the country in federal prisons.

How RDAP Works

Participation takes place via a three-stage process:

  1. Inmates are required to participate in a course of activities in a prison’s dedicated treatment unit. According to federal regulations, this component must last a minimum of six months. See 28 C.F.R. § 550.52 et seq. However, the BOP operates RDAP under an internal policy that provides for at least 500 hours of participation, with “a duration of 9 to 12 months.” Federal Bureau of Prisons Program Statement 5330.11, Psychology Treatment Programs, § 2.5.1.
  2. A “follow-up” period is also planned if there is sufficient time between an inmate’s completion of the unit-based component and release. Traditionally, this period can range from several weeks to several months.
  3. Finally, to complete RDAP and receive an early release benefit, inmates must also participate in a “traditional drug abuse treatment,” or TDAT component, usually in a federally-contracted halfway house.

Who May Participate in RDAP

RDAP is a voluntary program, and while the BOP has in recent years pledged to enroll 100% of eligible inmates, as required by § 3621(e), recent figures indicate that only 80% of eligible inmates have been enrolled.

To enroll in RDAP, the following requirements ordinarily need to be met:

  1. The inmate should have at least 24 months remaining on his or her sentence
  2. The inmate must be housed at the medium-security level or lower
  3. The inmate must have a verifiable substance abuse disorder in order to be accepted. This is usually established via a presentence report or other official documentation. (In a notable application of this provision, former Atlanta mayor William C. Campbell, convicted in 2006 of tax evasion, saw his RDAP sentence reduction revoked after officials discovered he misled them about having an applicable substance abuse history.)
  4. All participants must agree in writing to comply with program rules.
  5. All participants must be able to complete all three components of the program, including the community-based TDAT portion.

Who is Excluded from RDAP

As expansive as RDAP’s entry requirements may appear on their face, its exclusions are widely applied.

Approximately 26% of the BOP’s population is potentially excluded from RDAP right off the top: all men and women who are non-U.S. citizens and who are the subject of detainers from the Immigration and Customs Enforcement (ICE) agency (as justification for this exclusion, the BOP points out that most inmates with ICE detainers, those subject to possible deportation, are generally excluded from halfway house placement, and as such, cannot complete the critical TDAT component of the program).

Federal inmates who cannot meet 18 U.S.C. § 3621(e)’s “nonviolent” provision are also excluded. The BOP has interpreted this provision in a narrow fashion.

In enacting § 3621(e), Congress apparently left it to the expertise of the BOP to determine what a “nonviolent” offense is.  Initially, the BOP excluded from early release any offender whose current offense or prior conviction was for homicide, forcible rape, aggravated assault, or other offenses commonly known as crimes of violence. However, in a wider exclusion, the BOP included those convicted of seemingly nonviolent offenses like drug selling or trafficking if the defendant was given a two-point upward sentencing range adjustment under the Sentencing Guidelines for possessing a dangerous weapon during the commission of the drug offense. See Lopez v. Davis, 531 U.S. 230, 234 (2001)(setting forth the history of exclusions involving U.S.S.G. § 2D1.1(b)(a)).  Notably, simple possession of such a weapon, even by a convicted felon, is not considered a violent offense for most Sentencing Guidelines and statutory purposes. This disparity led to a sea of litigation, in which the various federal courts of appeals bickered over whether the BOP had the power to so interpret § 3621(e). The BOP’s categorical exclusion policies even reached the United States Supreme Court, which, in Lopez v. Davis, supra, affirmed the BOP’s essentially absolute discretionary power in such matters.

As the regulations now stand, a wide array of current offense conduct and prior conviction records can exclude an offender from early release. Prior convictions warranting exclusion include the aforementioned crimes against the person; kidnapping; arson; or any “offense that by its nature or conduct involves sexual abuse offenses committed on a minor.” 28 C.F.R. § 550.55. A current conviction that involves the above crimes will also warrant exclusion, as will one that involves:

  • “the actual, attempted, or threatened use of physical force against the person or property of another”
  • the “carrying, possession, or use of a firearm or other dangerous weapon”
  • even a “serious potential risk of physical force”
  • the conspiracy or attempt to commit any of the above crimes.

Another means of exclusion relates to offenders who have a detainer, open case, or unsatisfied warrant in their file. The existence of such a “want” in one’s file will cause exclusion from early release consideration on the basis that the BOP will not permit such offenders to be sent to a halfway house for TDAT programming, regardless of the age of the open case or relative triviality.

Finally, exclusion from RDAP can result from a lack of English proficiency, mental health status, or serious medical conditions that would prevent the offender from fully participating in all aspects of RDAP.

Participation in RDAP

Because the BOP does not operate RDAP in all of its institutions, inmates who are confined at a non-RDAP facility must first get approved for transfer to an RDAP facility before participating in the program. While there are significant delays in this process, the BOP claims that it tries to ensure that RDAP-approved inmates arrive at such institutions with at least 24 months remaining on their sentences.

Once installed in an RDAP facility, they are usually housed at an RDAP treatment unit while awaiting formal entry into the program (at some institutions, there is a separate housing unit for inmates waiting to start RDAP). In fact, the BOP generally keeps in each unit a mix of RDAP participants, those who have completed the program and those awaiting formal induction.

RDAP activities include 9 months of unit-based programming, usually for a minimum of half a day, Monday through Friday. Inmates are permitted to work in the unit or in other positions within the institution, provided that they are able to participate in half-day treatment.

RDAP is operated as a “modified therapeutic community,” as the BOP puts it. Most activities are based on the Cognitive Behavioral Therapy (CBT) model.

In the CBT model, a person’s feelings and behaviors are believed to be influenced by his or her perceptions and core beliefs. The BOP follows this model with the goal of “helping inmates perceive events objectively and modify their irrational beliefs, [so] that they may become more successful in achieving pro-social goals.” Federal Bureau of Prisons Program Statement 5330.11, § 1.2.

Notably, the BOP does not generally utilize treatment ideals from 12-step programs like Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). According to the Bureau, “such programs are often powerful and important interventions in an inmate’s recovery, [but] they do not substitute for [non-residential] or residential treatment hours. They are considered support to the Bureau’s treatment protocols.” Id.

RDAP policy encourages a proactive atmosphere in such housing units, including signs, posters, motivational paintings, etc., that reinforce RDAP goals.

Beyond the individual treatment plans, RDAP operations rely heavily on “therapeutic activities” that include some traditional therapeutic community tactics. While most of the mainstream substance abuse field has moved from the TC model, the BOP still relies heavily on TC-oriented social controls, including:

  • promoting positive peer pressure and peer feedback
  • participants assisting one another in meeting their goal
  • changing negative attitudes to positive ones through activities such as attitude check
  • conducting daily community meetings, etc.

These tactics include requiring inmates to “hold each other accountable” by publicly informing the collective unit of others’ violations of RDAP or institutional rules. This policy, called “the code of honor” in the military (and “snitching” or “ratting” in prison), often awards inmates “points” when informing on others. Those who fail to collect enough points may be deemed non-compliant with the program’s rules themselves, and those unwilling to participate in the informing process are often removed from the program.

RDAP also uses group meetings accompanied by music, dance, and inmate-led theatrical performances. In many facilities, inmates are expected to chant slogans “[e]mphasized with upbeat tune and volume.” Id., § 1.6.3(a).

“Senior peers” and “group leaders” are also a regular part of RDAP, and all “junior” inmates are expected to view these appointed leaders as authoritative.

The unit component of RDAP is divided into several phases:

  • Phase I, the Orientation Phase: Involves a psychosocial assessment of each inmate and general indoctrination of the inmate. In this phase, participants are expected to “complete a statement that outlines his or her readiness for treatment” and “learn to accept feedback from staff and peers.” Orientation lasts less than two months.
  • Phase II, the Core Treatment Phase: This phase of the program uses “treatment journals and facilitator guides” purchased from The Change Companies, a federal vendor that supplies RDAP with such materials, under a multimillion-dollar contract it has held since 1999. Inmates are expected to complete workbooks supplied by The Change Companies to assist in the inmates’ “acquisition of thought processes and pro-social skills required to live a substance-free, crime-free, and well-managed life.”  Core Treatment lasts no more than five months.
  • Phase III, the Transition Phase: The inmate is tested via an analysis of their behavior.  If deemed pro-social and committed to positive change, the inmate may complete the program.

Inmates who do not complete the program may be deemed “incomplete” cases when their failure to complete the program is not due to certain disciplinary infractions, i.e., substance-related violations, violence, etc. If disciplinary issues arise, then he or she will be removed from the program with a negative presumption against re-entry. In either case, an inmate removed from RDAP may re-apply after 90 days. If allowed to return, they will not receive credit for their prior participation.

Upon completion of the unit phase, most RDAP participants move into TDAT programming at a halfway house. While up to one year of halfway house placement is now permitted for all BOP inmates, including RDAP inmates, most inmates are given less halfway house time. At least 120 days at a halfway house are required for TDAT credit and completion of the program.

TDAT programming usually consists of weekly meetings with a federal contract provider.

Why RDAP is Touted as a Success

According to the BOP, RDAP serves to:

  • Reduce relapse
  • reduce criminality
  • reduce recidivism
  • reduce inmate misconduct
  • reduce mental illness
  • reduce behavioral disorders
  • increase the level of the inmate’s stake in societal norms
  • increase levels of education and employment upon return to the community
  • improve health and mental health symptoms and conditions
  • improve relationships

Collectively, these outcomes represent enormous safety and economic benefits to the public. For more information on the BOP RDAP program, visit the Federal Bureau of Prisons Programs page.

As the BOP spends more than $109 million annually to operate RDAP and other drug treatment programs, it understandably touts the program as a successful endeavor. BOP senior staff routinely testify before Congress that RDAP participants recidivate and relapse due to substance abuse at a rate far lower than the BOP inmate population as a whole. At a hearing before Congress in 2011, then-director Harley Lappin — who resigned in disgrace following a DUI arrest, cited statistics stating that RDAP participants were 16% less likely to recidivate and 15% less likely to relapse. These numbers have been repeated annually before Congress by Lappin’s successors, including Charles E. Samuels, Jr., the present Director of the Federal Bureau of Prisons. In 2013, Samuels testified before a Senate committee seeking additional funding for RDAP, which “also helps somewhat” with the institutional crowding s. 3621 was enacted to help address this.

RDAP: Failing In Its Mission

Congress’s intent in enacting 18 U.S.C. § 3621(e) in 1990 was to not only provide substance abuse treatment to the rapidly expanding federal prison population but to help reduce the growth of that population. Its intent was well-defined. In almost unheard of speed, Congress amended § 3621 less than four years later to add the “up to one year” early release incentive.

In doing so, Congress left the BOP with wide discretion in implementing this obvious intent, relying on the adage that prison administrators themselves are in the best posture to address the details of implementing prison policies. Indeed, Congress empowered the BOP to decide whether an inmate’s participation constituted completion of the program, how much of a reduction in term to apply to an inmate’s sentence, and even what constitutes a “nonviolent offense” within the meaning of the statute.  Presumably, Congress believed that the BOP would promulgate regulations that carried out its intent.

Such a presumption would prove to be an ill-fated one: a review of the BOP’s actions since § 3621(e) requires the sole conclusion that the BOP has failed to carry out all of § 3621(e)’s mandates — at a huge cost to taxpayers.

Failure #1: Not Ensuring That “Every” Prisoner Will Receive Treatment

Section 3621(e) was written in explicit form, at least as to who should receive drug treatment: “Every prisoner with a substance abuse problem [shall] have the opportunity to participate in appropriate substance abuse treatment[.]” Id., § 3621(e)(1). Congress’s intent in this regard was not left unclear. Within the very text of § 3621(e), Congress even laid out a year-by-year expectation as to what percentage of BOP inmates would be offered drug treatment. Not less than 50% by the end of FY 1995; not less than 75% by the end of FY 1996; and for “all eligible prisoners by the end of fiscal year 1997 and thereafter.” Id.

The BOP did not meet the “every prisoner” goal in 1997. In fact, even now, almost two decades later, the BOP still does not offer drug treatment to all who warrant it. It has failed to do so on a consistent, universal basis. In 2007, for example, the BOP enrolled only 80% of eligible inmates in drug treatment. In 2008, in its Annual Report of Substance Abuse Treatment For Fiscal Year 2008, it stated, “[w]ithout additional funding, the agency will [be] unable to meet [Congress’s goal] of treating 100% of eligible prisoners.”

The budget excuse continued on through 2012, the year in which the BOP requested an additional $15 million for RDAP funding. In a front-page article in USA Today, BOP spokesman Ed Ross told the press, “To the extent the budget allows, we will continue to add treatment staff to meet the needs of the increasing inmate population, and in the future, we expect to reduce the amount of time an inmate is wait-listed for treatment.”  Ross continued, “Reducing the time spent waiting to enter treatment will allow for longer sentence reductions at the back end for non-violent eligible inmates.”

In its FY 2013 request, the BOP continued to insist that budgetary problems were preventing it from complying with § 3621(e). This time the BOP requested an additional $13 million for RDAP funding. Notwithstanding RDAP and other drug treatment programs in federal prisons, being funded at more than $109 million, the BOP said it would need an additional 10% or more to finally meet its § 3621(e) obligation. To date, it has failed to do so.

The BOP has never explained why the congressional mandate that it offers substance abuse treatment to every eligible inmate depends on ever-increasing funding. In fact, in several amendments to § 3621(e), Congress has written into the law a provision authorizing full funding, but the BOP has continued to claim that the additional funds appropriated are not enough.

The BOP’s failure to offer substance abuse treatment to every eligible inmate has caused a significant logjam for RDAP participation, with wide-ranging consequences. First, the BOP’s failure to administer the program properly has resulted in shorter reductions in sentences. In December 2013, BOP Director Samuels admitted that the average reduction of sentence for those who completed the program was 7 to 9 months, not the one year authorized by the statute. This disparity is the result of a failure of the BOP to ensure that eligible inmates make it into the program in enough time to complete it.  Indeed, as the GAO found, only 15% of all inmates even made it into the program in time to have an opportunity to receive a full one-year sentence reduction.

Notably, § 3621, which governs imprisonment of all federal prisoners, makes no allowance for the BOP to not fully fund its treatment programs; while amendments to the statute have on occasion earmarked extra funds to do so, the congressional mandate for all eligible inmates is not tied to funding. Simply put, whether additional funds are earmarked, the BOP has the statutory responsibility to carry out § 3621(e)’s mandate by using some of the billions of dollars it receives annually to do so. As the drug treatment requirement is not an optional one, the BOP’s “funding” excuse cannot be accepted as valid. Section 3621 makes drug treatment a priority, one set forth in the very statute that empowers the agency to incarcerate prisoners in the first place.

Failure #2: The BOP’s Failure to Conduct RDAP Treatment In Timely Fashion

According to § 3621(e), residential drug treatment should last “at least 6 months.” 18 U.S.C. § 3621(e).

According to the BOP, though, RDAP participation must be no less than nine months. Program Statement 5330.11, § 2.5.10.

This 50% increase in program time appears based on the BOP’s opinion that a “minimum of 500 contact hours are required to carry out § 3621(e)’s mandate.” Id. (emphasis in original). While 500 hours would amount to roughly 13 weeks of actual program time for participants engaged in it for 40 hours a week, the BOP has decided to carry out § 3621(e)’s six-month provision by requiring inmates to do only a half-day schedule of substance abuse programming, for nine months, not six months.

Why the BOP elected to elongate the program’s duration is not explained in public policy. Yet this decision comes in the face of a general trend in the substance abuse treatment field to make such treatment shorter and more intensive, not longer. Indeed, in many parts of the country, the TC model has been outright rejected.

Even in the face of a professional trend of shorter treatment, the BOP’s insistence on a longer program has other, more tangible costs. In a 2013 article published by the well-respected Prison Legal News, Brandon Sample and Derek Gilna posited that increasing the length of RDAP from 6 to 9 months costs taxpayers more than $126 million each year, based on the increased cost of housing prisoners who would have otherwise been released, even by the BOP’s own conservative numbers.

As an obvious corollary, simply operating RDAP as a six-month program instead of a nine-month one would allow up to 25% more eligible inmates to complete the program each year. Just as obviously, doing so would allow a greater number of inmates to receive the full one-year reduction in sentence that Congress envisioned in the first place.

Simply put, the BOP’s unexplained insistence on a half-day, nine-month RDAP program instead of the six-month one called for by the statute has exacted a terrible price on not only the inmates RDAP was intended to serve but also upon the taxpayers who are footing the bill for the program.

Failure #3: The Exclusion of Those Who Need Drug Treatment the Most

According to the BOP, the term “nonviolent” used in § 3621(e) is not the same “nonviolent” used to sentence offenders to its custody under the United States Sentencing Guidelines. The Guidelines themselves have interpreted the term as meaning the use of force or threat of force against the person. See Amendment 583 (1998) (defining “non-violent” as involving physical force or potential for the same, for purposes of downward departures based on diminishing mental capacity).

As mentioned earlier, the BOP’s interpretation of the term “nonviolent” in § 3621(e) carries similar language. One whose offense of conviction includes “the actual, attempted, or threatened use of physical force against the person or property of another” is excluded. 28 C.F.R. § 550.55. As is anyone whose offense carries a “serious potential risk of physical force” and those who attempt or conspire to commit such crimes. Id.

The BOP doesn’t stop there. While a sentencing judge cannot consider the possession of a dangerous weapon a “violent” crime for purposes of the United States Sentencing Guidelines, nor for many statutory recidivist provisions (for example, the enhanced penalty for “career offenders” do not count such offenses), the BOP has decided that simple possession of such a weapon is a violent crime; anyone with such a conviction is deemed ineligible for early release. In fact, even if one’s codefendant was the one possessing such a weapon, an offender might be excluded so long as his or her sentence included a two-point Guidelines adjustment for that conduct (a common occurrence in federal drug prosecutions).

While this position has rendered thousands of otherwise eligible inmates ineligible for early release under § 3621(e), the BOP has also spent untold millions in litigation costs in defending its discretion to so exclude them. At one point in the late 1990s and early 2000s, inmates confined or sentenced within the area governed by the United States Court of Appeals for the Ninth Circuit – primarily the West Coast and Arizona – were permitted early release for firearms possession, whereas those sentenced or confined in the rest of the country were not. After this disparity resulted in even more costly federal litigation, the BOP ultimately rewrote the relevant regulation so as to eliminate the Ninth Circuit exception and thereby deprive all inmates of firearms enhancements across the nation.

The BOP’s vigorous efforts to maintain an expansive exclusionary policy as to what constituted a “non-violent” offense illustrates what many feel is a fundamental flaw in § 3621(e) to begin with, the exclusion of those who would most benefit from RDAP, and the decreased public safety arising from their exclusion: those who commit serious crimes to feed their substance abuse and addictions.

As written and as regulated by the BOP, RDAP often carries out its treatment in an odd way: those who deal drugs are universally not excluded from early release, but those who commit street crimes to buy their drugs are excluded.

This is so because as long as a drug dealer or trafficker can self-report a substance abuse problem, even a marijuana “addiction,” he or she is then eligible for early release under § 3621(e). In fact, any federal criminal defendant savvy enough to self-report an alcohol problem prior to sentencing in a presentence report can be deemed eligible for § 3621(e) early release, excepting, of course, those on the automatic exclusion list.

Treating the Wrong Offenders

A notable example of how some seemingly inappropriate candidates get time off is found in the case of Lorenzo Garcia, the former superintendent of the El Paso, Texas, school district. Garcia had been sentenced to 43 months in prison for unlawfully inflating the test scores of schools under his purview. He did so by forcing many students to drop out of school if they proved to be a drag on the school’s scores. Many of the students were Mexican immigrants and were so numerous that they were referred to as “los desaparecidos” or “the disappeared.” While Garcia’s sentencing judge specifically declined to recommend RDAP for Garcia, he qualified anyhow, and, over the objections of many in the El Paso community, he received an 11-month reduction of sentence for completing RDAP. So angry is the community that Representative Beto O’Rourke, D-TX, has called on the BOP to revoke Garcia’s award. BOP spokesperson Chris Burke refused to comment, saying only that Garcia’s release date was calculated in accordance with § 3621. “Privacy concerns prevent me from commenting further,” he said. Burke was quoted in a December 2013 New York Times piece that reported RDAP “has become a popular way for white-collar criminals to reduce their prison time.”

Not so lucky was “E,” a 32-year-old inmate whose judge, imposing a sentence for E’s violation of his supervised release for using drugs, recommended he enroll in RDAP.  In computing E’s sentence, the judge counted his prior conviction for possession of a firearm as part of his criminal history. So did the BOP in assessing E’s security classification status. Amid E’s otherwise exemplary participation in RDAP, he was informed that his “prior” conviction was, for purposes of RDAP’s regulations, his “current” offense and was thus cause for exclusion per § 3621(e) early release as a current firearms offense. The BOP’s basis for this conclusion was that while E’s new sentence was the result of drug use, the supervised release sanction was actually imposed on him in connection with his previous firearms case that he had been sentenced for a decade before (and had been released from prison on). As such, E will complete RDAP but receive no early release incentive because he is not considered a “non-violent” offender.

E’s story is not an uncommon one, and perhaps even more common are the stories involving offenders whose crimes were unquestionably motivated by drug use but who are excluded by the expansive definition of violence in use in § 3621(e) and the BOP.  The burglary of a retail store is a crime that is cause for automatic exclusion, and so is a purse-snatching committed by a junkie in need of a fix.

Virtually every unarmed “note job” bank robbery committed today is undertaken by a drug addict seeking a small sum of cash to support a substance abuse habit. In most cases, these offenders have no weapons other than the note demanding money. Most wear no disguise and are captured almost immediately. Notwithstanding the obvious need that these offenders have for drug treatment – and there are thousands sent to federal prison each year – none of them will qualify for § 3621(e) consideration. As such, most will never have the opportunity to even volunteer to participate in RDAP even without an early release incentive because bed space is filled by the “nonviolent” drug traffickers who sell the drugs, and the Lorenzo Garcias of the BOP, white-collar criminals who are unlikely to recidivate in the first place.

Respectfully, the expansive exclusion of any offender whose offense or history contains the most tenuous connection to violence is a failure of untold magnitude.

Recommendations: Ensuring Drug Users Are Treated

The statutory mission of § 3621(e) to offer substance abuse treatment to those federal prisoners who need it, and to reduce recidivism, can be more effectively realized with several important changes in BOP policy and, in the end, alteration of § 3621 itself.

  1. The BOP’s unexplained insistence on a nine-month RDAP program should be discarded in favor of a six-month one that utilizes full-time programming. This in itself is an easily implemented measure that will save millions of taxpayer dollars each year and will allow a greater number of inmates to participate in the program, even with the same amount of bed space.
  2. The BOP should be encouraged to ensure that all eligible inmates are processed into the RDAP program in time to receive the full one-year release incentive. This, too, will save millions of dollars of taxpayer money each year, even if it requires the BOP to fully fund RDAP from its own $6.9 billion annual budget. RDAP must become a higher budgetary priority for the BOP, which, under the terms of the statute, is required to do so.
  3. The BOP should be forced to re-evaluate its regulations as to the definition of “nonviolence” set forth in § 3621(e). Its expansive and illogical application of the term has created the fundamental flaw of depriving treatment to countless offenders who could use it most, to the detriment of public safety.
  4. If we are serious about reducing recidivism and shrinking the number of federal prisoners, then § 3621 should be amended to allow a greater range of inmates to receive the early release incentive by allowing a sentencing court to order an offender’s participation.