The Residential Drug Abuse Program (RDAP) is the crown jewel of the Federal Bureau of Prisons’ substance abuse rehabilitation programs. Inmates who qualify for this rigorous, residential nine-month drug treatment program receive up to a one-year sentence reduction. They also receive a recommendation for maximum halfway house placement. But while many federal prisoners desire to participate in drug abuse treatment, few qualify for the sentence reduction.
Please book a free initial consultation if you or a loved one are interested in the RDAP program in federal prison. Our team can advise you how best to seek drug abuse treatment placement, appropriate methods for showing a drug abuse history, and what to expect from this in-depth program. Likewise, we can challenge RDAP eligibility and one-year off denials.
Table of contents
- RDAP: Drug Abuse Treatment’s Shortfallings
- The Federal Bureau of Prisons, 18 U.S.C. § 3621, and Drug Treatment
- BOP Substance Abuse Treatment Programs
- How the Residential Drug Abuse Program Works
- Who May Participate in RDAP?
- Who is Excluded from Residential Drug Abuse Program?
- RDAP Program in Federal Prison: Not Fast, Easy, or Simple
- How to Sign-Up for RDAP
- Participation in the Residential Drug Abuse Program
- RDAP “Incompletes” and Failures
- Transitional Drug Abuse Treatment Phase
- Why RDAP is Touted a Success?
- Residential Drug Abuse Program: Failing In Its Mission
- Failure #1: Not Ensuring That “Every” Prisoner Will Receive Treatment
- Failure #2: The BOP’s Failure to Conduct RDAP Treatment In Timely Fashion
- Failure #3: The Exclusion of Those Who Need Drug Treatment the Most
- Federal Prison Drug Program: Treating the Wrong Offenders
- Recommendations: Ensuring Drug Users Are Treated
- Residential Drug Abuse Program Admission Denials
RDAP: Drug Abuse Treatment’s Shortfallings
It is now commonly understood that substance abuse problems play a significant 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. These programs are primarily unsuccessful in reducing imprisonment rates or the percentage of those imprisoned whose crimes relate to substance abuse.
Treating the Dealers and Ignoring the Users
One of the most expensive efforts in this regard is represented by the Federal Bureau of Prisons’ 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 federal prisons, employing an army of psychologists and correctional staff. These psychologists are known as Drug Treatment Specialists. Some 14,482 inmates cycled through RDAP in 2012, the last available public record. BOP officials have claimed success by pointing out that RDAP graduates recidivate 16 percent less than the BOP population as a whole.
Ongoing RDAP Program Admissions Policy Failures
Even a cursory analysis of the numbers and governing policies suggests that the Residential Drug Abuse Program fails on many levels. To start, eligible federal prisoners tend to possess attributes making them less likely to return to prison in the first place.
A closer examination of RDAP’s policies reveals this expensive program is designed to exclude the very population that would benefit most from intensive drug treatment. It also excludes many inmates whose recidivism takes a massive toll on their communities and society.
This page examines how and why RDAP should be deemed an expensive failure. It also discusses how the same funds and other resources could more effectively 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. It houses approximately 153,300 inmates in its 127 stand-alone prisons across 37 states. The federal prison system also has 65 satellite prison camps located adjacent to many of these federal prisons.
Even by government standards, the BOP is monolithic, consuming significant 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. This equates to nearly a quarter of the entire Department of Justice (DOJ) budget and is second only to the Federal Bureau of Investigations among DOJ agencies for spending.
Sentencing Reform Act of 1984
The Sentencing Reform Act in 1984 eliminated parole in the federal prison system. In response, Congress examined 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, providing, “The 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.
The Fabled One-Year Off
Four years later, Congress again amended § 3621 to incentivize inmate participation in BOP drug programs. Congress amended the law, stating, “The period a prisoner convicted of a nonviolent offense remains in custody after 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).
Defining Nonviolent to Exclude Drug Abuse Treatment
As discussed below, the BOP defined “nonviolent” very narrowly. This definition excludes many from the early release benefit. Still, the Bureau has a wide field of inmates to choose from.
Almost 65,000 men and women confined in the Federal Bureau of Prisons are serving time for drug offenses. Additionally, many more have substance abuse histories or reported substance abuse as a contributing factor in their offense conduct.
BOP Substance Abuse Treatment Programs
Drug Education Class
The Federal Bureau of Prisons operates several types of drug treatment programs. The most basic program is the 40-hour 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. Additionally, more than 51,000 inmates were on a waiting list that year. Inmates who complete the program are not eligible for early release.
Non-Residential Drug Abuse Treatment Program (NR-DAP)
The BOP’s Non-Residential Drug Abuse Program (NR-DAP) is available for inmates who volunteer. Bureau policy dictates that program participants meet for at least 12 weeks. Practice indicates that these 12 weeks of drug treatment are usually held during a six-month period.
Participants in this non-residential drug abuse program do not receive an early release benefit. Even so, they receive a recommendation for maximum halfway house placement. This recommendation is conferred upon program completion.
Residential Drug Abuse Treatment Program (RDAP)
The crown jewel of the BOP’s drug treatment program is its Residential Drug Abuse Program (RDAP). Inmates who complete the federal prison drug program may receive an early release benefit of up to one year. This benefit is reserved until the successful completion of RDAP’s various components. Some 14,000 to 15,000 inmates participate in RDAP each year at the over 60 RDAP service locations scattered across the country in federal prisons.
The RDAP program in federal prison is the most commonly prescribed program by federal judges when sentencing offenders. It is also the most widely misunderstood program. Anyone seeking to participate in this drug abuse treatment program and reap the potential benefits should pay close attention to its requirements.
How the Residential Drug Abuse Program Works
RDAP is a unit-based residential program that involves daily group programming activities, individual counseling, and a great deal of peer-based interaction. It is also the fabled “one year off” program.
Eligible inmates might receive up to a one-year sentence reduction for successful completion under 18 U.S.C. § 3621(e)(2)(B), which is applied through Program Statement P5331.02, Early Release Procedures Under 18 U.S.C. § 3621(e). However, who is eligible and how the program is completed are left to the Bureau. This empowers the federal prison system with vast discretion. See Lopez v. Davis, 531 U.S. 230, 237 (2001), wherein the U.S. Supreme Court upheld the federal prison system’s broad discretion.
RDAP is only available at federal prisons. The program is currently offered only to medium and lower custody-level inmates. Ordinarily, the program takes nine to twelve months to complete and involves a follow-up period in community confinement (i.e., halfway house). Therefore, inmates must have at least twenty-four months remaining on their sentence to be considered.
RDAP participation takes place in the following three-stage process:
RDAP’s Residential Treatment Phase
Inmates are required to participate in activities in the 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. This requires “a duration of 9 to 12 months.” Federal Bureau of Prisons Program Statement 5330.11, Psychology Treatment Programs, § 2.5.1.
RDAP’s In-Prison Follow-Up Phase
A “follow-up” period is also planned if sufficient time exists between an inmate’s completion of the unit-based component and release. Traditionally, this period can range from several weeks to several months.
RDAP’s Halfway House Phase
Finally, inmates must also participate in “traditional drug abuse treatment” (TDAT) to complete the Residential Drug Abuse Program and receive an early release benefit. This TDAT component is provided in a federally-contracted halfway house.
Who May Participate in RDAP?
The RDAP program in federal prisons is a voluntary program. While the BOP has in recent years pledged to enroll 100 percent of eligible inmates, as required by § 3621(e), recent figures indicate that only 80 percent of eligible inmates have been enrolled.
The following requirements ordinarily need to be met to enroll in the Residential Drug Abuse Program:
- The inmate should have at least 24 months remaining on his or her sentence.
- They must be housed at the medium-security level or lower.
- 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.)
- All participants must agree in writing to comply with program rules.
- All participants must be able to complete all three components of the program, including the community-based portion, the Transitional Drug Abuse Treatment Program (TDAP).
RDAP admission is extended to a far wider pool of inmates than those whose participation would make them eligible for a sentence reduction under § 3621(e).
A “verifiable” substance abuse disorder is typically established by referencing substance abuse in the Presentence Report. Generally, documentation is required as to a substance abuse disorder within the 12 months before the inmate’s arrest on the current offense. An inmate with multiple convictions for driving while intoxicated can also suffice.
Criminal defendants seeking treatment while incarcerated must ensure that their Presentence Report explicitly depicts related information. Without this proof, RDAP eligibility will be in grave doubt.
Who is Excluded from Residential Drug Abuse Program?
While RDAP’s entry requirements may appear expansive, its exclusions are widely applied. This serves to bar many inmates from drug abuse treatment who have substance use disorders.
Not everyone admitted to RDAP is eligible for a sentence reduction. Qualifying for a sentence reduction under § 3621(e) requires far more and is determined by the Bureau per 28 C.F.R. § 550.55 and Program Statement P5162.05, Categorization of Offenses.
In general, inmates with prior convictions for homicide, forcible rape, robbery, or another offense deemed a “crime of violence” are excluded. Likewise, inmates whose current offense involves such conduct are also excluded.
The list of excludable convictions for a current offense also includes crimes that involved “the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device).”
Other expansions on the classic definition of a “violent crime” are included and can determine eligibility as a fact-specific endeavor. At times, the federal prison system has removed such violent crime determinations from the local level, relegating all decisions to a single national location. In most cases, a two-point sentencing enhancement for possession of a firearm is cause for exclusion.
Approximately 26 percent of the BOP’s population is potentially excluded from RDAP right off the top. This includes all men and women who are non-U.S. citizens if the Immigration and Customs Enforcement (ICE) agency has lodged a detainer against them.
As justification for this exclusion, the BOP points out that most inmates with ICE detainers (i.e., those subject to possible deportation) are generally excluded from halfway house placement. As such, these inmates cannot complete the critical TDAT component of the drug abuse treatment program.
“Violent” Offenders, Under an Expansive Definition of Violence
Federal inmates who cannot meet 18 U.S.C. § 3621(e) ’s “nonviolent” provision are also excluded. The BOP has narrowly interpreted this provision.
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 any of the following crimes:
- Forcible Rape
- Aggravated Assault
- Other offenses commonly known as crimes of violence.
However, the BOP included those convicted of seemingly nonviolent offenses like drug selling or trafficking in a broader exclusion. This required the defendant to have received a two-point upward sentencing 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)).
Simple Possion of a Weapon Not a “Violent” Crime
Notably, simple possession of 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 reached the United States Supreme Court, which, in Lopez v. Davis, supra, affirmed the BOP’s essentially absolute discretionary power in such matters.
Other “Violent” Crimes that Exclude RDAP Participation
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 previously-mentioned crimes against the person:
- 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 with a detainer, open case, or unsatisfied warrant. Any of these causes exclusion from early release consideration. This is performed because the BOP will not permit such offenders to be sent to a halfway house for TDAT programming. This is irrespective of the age of the open case or relative triviality.
Non-English Proficient Inmates
Finally, a lack of English proficiency, mental health status, or serious medical conditions may exclude federal inmates from the Residential Drug Abuse Program. This is limited to conditions (such as the language spoken) that would prevent the offender from fully participating in all aspects of the RDAP program in federal prison.
RDAP Program in Federal Prison: Not Fast, Easy, or Simple
While the RDAP federal prison drug program is the only meaningful way to obtain a post-sentencing sentence reduction, the RDAP program is not fast, easy, or simple.
Transferring Housing Units or Prisons
Residential Drug Abuse Program participants must move housing units and, at times, even transfer prisons to participate. They must also engage in an intensive program consisting of individual and group therapy sessions, along with a problematic system of holding fellow RDAP participants accountable for misconduct for minor, non-disciplinary issues.
Holding Other Inmates Accountable
For example, RDAP participants hold fellow inmates accountable for standing on the compound (instead of walking, which is required). It should be highlighted that RDAP participants don’t hold fellow program participants accountable for serious rule infractions such as drinking or getting high.
Also, note that Residential Drug Abuse Program participants are regularly disciplined, suspended, and kicked out of the program for misconduct. They are also expelled from the program for failure to complete a program component successfully (e.g., holding others accountable).
Sentence Reduction and Drug Abust Treatment Possible
For those who qualify for RDAP, the year off is the best option for a sentence reduction. But this comes at a high social and time cost. For inmates willing to put in the work and who want to get help with their drug and alcohol addictions, the RDAP program in federal prison can do a whole world of good during the program and for years to come.
How to Sign-Up for RDAP
Inmates need to speak with their Psychology Department to sign up for the Residential Drug Abuse Treatment Program. During this meeting, the inmate needs to request an evaluation for RDAP placement.
Psychology Services Pre-Interview
When inmates have approximately three years remaining on their sentence, they are called to their Psychology Department for an RDAP eligibility interview. The Drug Treatment Specialist discusses program acceptance or denial during this interview based on individual case factors.
Assuming the inmate qualifies for program participation, the Drug Treatment Specialist will ask the inmate if they are still interested. If they are still interested, the Drug Treatment Specialist will schedule the inmate for an actual RDAP program in federal prison interview.
RDAP Eligibility Interview
In an RDAP interview, inmates are asked numerous questions to determine if they sincerely want to participate. This is designed to control for inmates who are just trying to get the one-year sentence reduction.
During this interview, inmates must sell themselves and their desire to obtain help for a serious drug and/or alcohol addiction. If the inmate meets the criteria mentioned above, they should qualify for the year off.
Groups Qualifying for RDAP, But Not the Year Off
As defined by PS 5162.05, crimes of violence preclude certain federal prisoners from being awarded the year off after completing the Residential Drug Abuse Program. These include homicide, forcible rape, robbery, and others. Sex offenders are not barred from the federal prison drug program participation or the year off, but they could be precluded based on other criminal history concerns and other reasons.
Note that just because an inmate may not qualify for the year off doesn’t mean they don’t qualify for the RDAP program in federal prison. The Zoukis Consulting Group has assisted several clients with obtaining RDAP admission to obtain help with addictions, even though they didn’t qualify for the year off.
Participation in the Residential Drug Abuse Program
Because the BOP does not operate RDAP in all of its institutions, inmates confined at a non-RDAP facility must first obtain approval for transfer to an RDAP facility before participating in the program. While there are significant delays in this process, the BOP claims it tries to ensure that Residential Drug Abuse Program-approved inmates arrive at such institutions with at least 24 months remaining on their sentences.
Once at an RDAP facility, inmates are usually housed at a federal prison drug program treatment unit while awaiting formal entry into the program. At some institutions, there is a separate housing unit for inmates waiting to start RDAP. The Bureau of Prisons generally keeps a mix of Residential Drug Abuse Program participants in each unit. This includes those who have completed the program and those awaiting formal induction.
The federal prison drug program activities include nine months of unit-based programming. This programming usually occurs Monday through Friday for at least half each day. Inmates are permitted to work in the unit or other positions within the institution, provided that they can participate in half-day treatment.
Modified Therapeutic Community
The Residential Drug Abuse Program is operated as a “modified therapeutic community,” as the BOP terms it. Most activities are based on the Cognitive Behavioral Therapy (CBT) model.
In the CBT model, a person’s feelings and behaviors are considered influenced by their perceptions and core beliefs. The BOP follows this model with a 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 to support the Bureau’s treatment protocols.” Id.
The Drug Abuse Treatment Experience
Residential Drug Abuse Program policy encourages a proactive atmosphere in these housing units. This includes signs, posters, motivational paintings, etc. These trappings allegedly reinforce drug abuse treatment 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 therapeutic community 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.
The Residential Drug Abuse Program 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).
Informing on Fellow Inmates
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. Inmates unwilling to participate in the informing process are often removed from the program.
“Senior peers” and “group leaders” are also a regular part of RDAP. All “junior” inmates are expected to view these appointed leaders as authoritative.
The unit component of the federal prison drug program is divided into three phases:
Phase I: Orientation Phase
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: Core Treatment Phase
The Core Treatment Phase uses “treatment journals and facilitator guides” purchased from The Change Companies. This copy is a federal vendor that supplies RDAP with program materials under a multimillion-dollar contract 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: Transition Phase
During the Transitional Phase, inmates are tested by analyzing their behavior. If deemed pro-social and committed to positive change, inmates may complete the program.
RDAP “Incompletes” and Failures
Inmates who do not complete the program may be deemed “incomplete” cases. This occurs when their failure to complete the program is not due to certain disciplinary infractions (e.g., substance-related violations, violence, etc.). If disciplinary issues arise, inmates are removed from the program with an adverse presumption against re-entry.
In either case, an inmate removed from the RDAP program in federal prison may re-apply after 90 days. If allowed to return, they will not receive credit for their prior participation.
Transitional Drug Abuse Treatment Phase
Upon completing the unit phase, most Residential Drug Abuse Program 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, most inmates receive far less halfway house time. At least 120 days at a halfway house is required for TDAT credit and completion of the program.
TDAT programming usually consists of weekly meetings with a federal contract provider.
The TDAT requirement can prove troublesome for inmates with pending detainers or long-forgotten warrants. This is because they are prohibited from halfway house placement. Failure to complete the TDAT phase precludes RDAP completion, as well.
Until 2009, inmates housed in or sentenced in the area covered by the U.S. Court of Appeals for the Ninth Circuit could receive a reduction in such cases. The Federal Bureau of Prisons has since changed its regulations to eliminate any disagreement. See Peck v. Thomas, 697 F.3d 767, 772 (9th Cir. 2012).
Why RDAP is Touted a Success?
According to the BOP, Residential Drug Abuse Treatment Program 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
As the Federal Bureau of Prisons spends more than $109 million annually to operate the RDAP program in federal prisons and other drug treatment programs, it understandably touts the program as a successful endeavor. Bureau 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 percent less likely to recidivate and 15 percent less likely to relapse. These numbers have been repeated annually before Congress by Lappin’s successors.
In 2013, Charles E. Samuels, Jr., former Director of the Federal Bureau of Prisons, testified before a Senate committee seeking additional funding for RDAP. During his testimony, he explained that RDAP “also helps somewhat” with the institutional crowding. He explained that 18 U.S.C. § 3621 was enacted, in part, to address this overcrowding.
Residential Drug Abuse Program: 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. Congress amended § 3621 less than four years later to add the “up to one year” early release incentive in almost unheard of speed.
In doing so, Congress left the BOP with broad discretion in implementing this obvious intent. In doing so, Congress relied on the adage that prison administrators themselves are in the best posture to address the details of implementing prison policies. Indeed, Congress empowered the Bureau of Prisons to decide whether:
- An inmate’s participation constituted completion of the program.
- How much of a sentence reduction to apply to individual inmate.
- And even what constitutes a “nonviolent offense,” within the meaning of the statute.
Presumably, Congress believed that the FBOP would promulgate regulations that carried out its intent. Such presumptions proved to be ill-fated: a review of the BOP’s actions since § 3621(e) requires the only conclusion that the BOP has failed to carry out all of § 3621(e) ’s mandates — at a considerable 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 unclear. Within the very text of § 3621(e), Congress even presented a year-by-year expectation of what percentage of federal inmates would be offered drug treatment:
- Not less than 50 percent by the end of FY 1995
- Not less than 75 percent by the end of FY 1996
- “[A]ll eligible prisoners by the end of the fiscal year 1997 and thereafter.” Id.
The BOP did not meet the “every prisoner” goal in 1997. Even now, almost three 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.
Bureau Excuse: We Need More Than $109 Million
In 2007, for example, the BOP enrolled only 80 percent 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 through 2012 when the BOP requested an additional $15 million for Residential Drug Abuse Program funding. In a front-page article in USA Today, Bureau of Prisons 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 nonviolent eligible inmates.”
In its FY 2013 request, the BOP continued to insist that budgetary problems prevented it from complying with § 3621(e). This time the BOP requested an additional $13 million for RDAP funding. Notwithstanding the existing $109 million funding for RDAP and other drug treatment programs in federal prisons, the BOP said it would need an additional 10 percent or more to finally meet its § 3621(e) obligation. To date, it has failed to do so.
Bureau Excuse: No Excuse, Just Noncompliance with Federal Law
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 a provision authorizing complete funding into law. Still, the BOP has continued to claim that the additional funds appropriated are insufficient.
Result: Average RDAP Sentencing Credit 7 to 9 Months
The BOP’s failure to offer substance abuse treatment to every eligible inmate has caused a significant logjam for Residential Drug Abuse Program participation, with wide-ranging consequences.
The BOP’s failure to properly administer the program has resulted in shorter sentence reductions. In December 2013, BOP Director Samuels admitted that the average sentence reduction for those who completed the program was 7 to 9 months, not the one year authorized by the statute.
This disparity results from a failure of the BOP to ensure that eligible inmates make it into the program with enough time to complete it. Indeed, as the Government Accountability Office determined, only 15 percent of all inmates even made it into the program in time to have an opportunity to receive a full one-year sentence reduction.
Result: Continued Noncompliance with Federal Regulations
Notably, § 3621, which governs the imprisonment of all federal prisoners, makes no allowance for the BOP to not fully fund its treatment programs. At the same time, amendments to the statute have on occasion earmarked extra funds to do so. Significantly, 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 optional, the BOP’s “funding” excuse cannot be accepted as valid. Section 3621 makes drug treatment a priority, one outlined 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
Residential drug treatment should last “at least 6 months.” 18 U.S.C. § 3621(e). But, according to the BOP, RDAP participation must be no less than nine months. Program Statement 5330.11, § 2.5.10.
Bureau Changes RDAP from 6 to 9 Months Duration
This 50 percent increase in program time appears based on the Bureau’s opinion that a “minimum of 500 contact hours are required to carry out § 3621(e) ’s mandate.” Id. 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.
Public policy does not explain why the BOP elected to elongate the program’s duration. 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, the therapeutic community model has been outright rejected in many parts of the country.
Bureau Needlessly Elongates RDAP at a Cost of $126 Million Annually
Even in the face of a professional trend of shorter treatment, the BOP’s insistence on an extended 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. This is based on the increased cost of housing prisoners who would have otherwise been released, even by the BOP’s conservative numbers.
Longer, Less-Intense RDAP Program Equals Fewer Inmates Treated
As an obvious corollary, simply operating the Residential Drug Abuse Program as a six-month program instead of a nine-month program would allow up to 25 percent more eligible inmates to complete the program each year. Just as obviously, doing so would allow a more significant number of inmates to receive the full one-year sentence reduction 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. This price is currently being paid by inmates drug abuse treatment was intended to serve and also 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 their 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 “nonviolent” 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.
Bureau Excuse: We Define Violence Different than the Courts and Congress
The BOP doesn’t stop there. Sentencing judges cannot consider the possession of a dangerous weapon a “violent” crime for purposes of the United States Sentencing Guidelines. Likewise, many federal statutory recidivist provisions do not allow for this. For example, the enhanced penalty for “career offenders” does not count such offenses.
On the other hand, the Federal Bureau of Prisons has decided that simple possession of such a weapon is a violent crime. Anyone with such a conviction is deemed ineligible for early release. Even if an inmate’s codefendant was the one possessing such a weapon, an offender might be excluded, so long as their sentence included a two-point Guidelines adjustment for that conduct. This is a common occurrence in federal drug prosecutions.
Litigating the Farce: Bureau Litigation Over RDAP Crime of Violence Exclusions
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.
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. On the other hand, those sentenced or confined in the rest of the country were not eligible for early release.
After this disparity resulted in even more costly federal litigation, the BOP ultimately rewrote the relevant regulation to eliminate the Ninth Circuit exception and thereby deprive all inmates of firearms enhancements across the nation.
Section 3621(e)’s Fatal Flaw: Relying on Prison Administrators
The BOP’s vigorous efforts to maintain an expansive exclusionary policy as to what constituted a “nonviolent” offense illustrates what many believe 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 Federal Bureau of Prisons, the Residential Drug Abuse Program 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 self-reports a substance abuse problem, even a marijuana “addiction,” they are eligible for early release under § 3621(e). Any federal criminal defendant savvy enough to self-report an alcohol problem before sentencing, in a presentence report, can be deemed eligible for § 3621(e) early release, excepting, of course, those on the automatic exclusion list. Of course, the Bureau has started cracking down on this, electing to withhold drug abuse program eligibility from additional inmates.
Federal Prison Drug Program: Treating the Wrong Offenders
To place this policy argument into context, we present two relevant cases. The first concerns a federal inmate who probably shouldn’t have qualified for an RDAP sentence reduction. The second case study illustrates a case where an inmate probably should have qualified for the RDAP program in federal prison sentence reduction.
Lorenzo Garcia: No Need, Yet RDAP Sentence Reduction
A notable example of how some seemingly inappropriate candidates receive time off is found in the case of Lorenzo Garcia. Mr. Garcia is the former superintendent of the El Paso, Texas, school district.
Garcia had been sentenced to 43 months in federal prison for unlawfully inflating schools’ test scores 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. They were so numerous that they became known as “Los Desaparecidos” or “the disappeared.”
While Garcia’s sentencing judge expressly declined to recommend the federal prison drug program for Garcia, he qualified anyhow. Over the objections of many in the El Paso community, he received an 11-month reduction of sentence for completing RDAP. The community was so angry that Representative Beto O’Rourke, D-TX, called on the Bureau of Prisons to revoke Garcia’s sentence reduction award.
BOP spokesperson Chris Burke refused to comment, only saying that Garcia’s release date was calculated per § 3621. “Privacy concerns prevent me from commenting further,” he said. Burke was quoted in a December 2013 New York Times piece that reported the RDAP program in federal prison “has become a popular way for white-collar criminals to reduce their prison time.”
“E”: Clear Need, Yet No Drug Abuse Treatment Sentence Reduction
Not so lucky was “E,” a 32-year-old inmate whose judge, imposing sentence for E’s violation of his supervised release for using drugs, recommended he enroll in the Residential Drug Abuse Program.
In computing E’s sentence, his sentencing 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 Federal Bureau of Prison’s basis for this conclusion was that while E’s new sentence resulted from drug use, the supervised release sanction was imposed in connection with his previous firearms case. This was a case from a decade prior (and E had been released from prison on). As such, E will complete RDAP but receive no early release incentive because he is not considered a “nonviolent” offender.
Drug Addicts Excluded from the Federal Prison Drug Program
E’s story is not uncommon. 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 employed in § 3621(e) and by the BOP. The burglary of a retail store is a crime that is cause for automatic exclusion. So too is a purse-snatching committed by a junkie who needs 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. These offenders have no weapons other than the note demanding money in most cases. Most wear no disguise and are captured almost immediately.
Notwithstanding the obvious need 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 even to volunteer to participate in RDAP without an early release incentive. Bed space is filled by the “nonviolent” drug traffickers who sell the drugs. These bed spaces are also filled by 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 federal prisoners who need it and reduce recidivism can be more effectively realized with four fundamental changes in the Bureau of Prisons’ policy. This may also necessitate alteration of § 3621 itself.
Reduce the Drug Abust Program to a Full-Time Six Month Program
The BOP’s unexplained insistence on a nine-month Residential Drug Abuse Program program should be discarded. In its place, a six-month program should be instituted that utilizes full-time programming. This is an easily implemented measure that will save millions of taxpayer dollars each year. It will also allow a more significant number of inmates to participate in the program, even with the same amount of bed space.
Incentivize the BOP to Include Inmates with Drug Abuse Program Need
The BOP should be encouraged to ensure that all eligible inmates are processed into the RDAP program in federal prison in time to receive the full one-year release incentive. This, too, will save millions of dollars of taxpayer money each year. Of course, it may require the BOP to fully fund RDAP from its own $6.9 billion annual budget. Residential Drug Abuse Program must become a higher budgetary priority for the BOP, which is required to do so under the terms of the statute.
Reevaluate the Bureau’s Definition of “Nonviolence”
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 federal prison drug program treatment to countless offenders who could use it most, to the detriment of public safety.
Expand Section 3621’s Eligibility Provision
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. This could be facilitated by enabling sentencing courts to order an offender’s participation.
Residential Drug Abuse Program Admission Denials
If you’re denied acceptance into the program or the year off, you can always file an administrative remedy seeking a review of the denial.
Contact us for more information or details about the Residential Drug Abuse Program.
Published Apr 7, 2016 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Mar 18, 2022 at 4:38 pm