| VIII. PRISON INCENTIVES AND MANAGEMENT: EXPAND THE RESIDENTIAL DRUG ABUSE PROGRAM (RDAP) |
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Summary of the Problem: RDAP is a voluntary six-to-twelve-month program of individual and group therapy for federal prisoners with substance abuse problems. It is authorized by 18 U.S.C. § 3621, which directs the Federal Bureau of Prisons (BOP) to provide "residential substance abuse treatment and make arrangements for aftercare ... for all eligible prisoners," giving priority to eligible prisoners closest to their release dates. As an incentive to participate, Congress authorized, in 1995, a sentence reduction of up to one year for prisoners convicted of a non-violent offense. Participation in the drug abuse program increased greatly. By unilateral BOP rule, the one-year reduction is not available to certain classes of prisoners who are eligible under the statute, including those with detainers (eliminating 26.2 percent of prisoners who are removable aliens) and those who the Bureau of Prisons classifies as having committed a "crime of violence," which includes an offense that involves the mere possession of a weapon. RDAP is proven to reduce the likelihood of recidivism and drug abuse relapse, as well as reduce prison costs, both by shortening sentences and reducing recidivism. However, as a result of the rigid eligibility requirements, only a small percentage of prisoners who could take advantage of the incentive are allowed to receive it. Among those who do qualify, few receive the maximum benefit Congress authorized. There is currently a waiting list for RDAP that exceeds 7,600 prisoners.[i] Because priority is given to those who are closest to their release dates, and there are a limited number of openings, few prisoners complete the program in time to receive the maximum sentence reduction of one year. As of July 2008, the average RDAP participant received a sentence reduction of only 7.64 months. Proposed Solutions: Executive: The new Attorney General should issue a memorandum directing the BOP to administer the sentence reduction incentive consistent with federal law and to ensure that it be made available to all qualifying non-violent prisoners and those with detainers, and that the planning be done far enough in advance to ensure that qualified prisoners receive the full benefit Congress intended to bestow. Jurisdiction: Executive Branch: Department of Justice Background: Executive Branch, Legislative Branch and Judicial Branch: Prisoners with detainers: Nothing in federal law ties successful completion of RDAP to participation in community corrections. Instead, as originally conceived, success in a community corrections program orin a program within a prison facility would qualify. A rule change in 1996, prompted by a misunderstanding of guidance from the American Psychological Association (APA), limited the incentive to success in the former, thus eliminating all removable aliens. Their successful treatment would help them live drug free lives and not saddle their home countries with untreated substance abusers. The APA in 2000 encouraged the BOP to reinstate eligibility for prisoners with detainers, but the BOP has declined to change its policy. Crimes of Violence: Several lawsuits have challenged BOP's restrictions on eligibility for the sentence reduction incentive, particularly BOP's designation of certain crimes as "crimes of violence." In 1995, the BOP adopted a regulation defining nonviolent offenses by reference to "crimes of violence" in 18 U.S.C. § 924(c). It then began treating prisoners who had not committed such crimes, but who had merely possessed a firearm, as disqualified. In response to court challenges, in 1997, the BOP issued a new temporary rule that categorically excluded eligibility for a sentence reduction to anyone whose "current offense is a felony... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives[.]" That temporary rule became permanent in 2000 and survived a Supreme Court challenge in Lopez v. Davis, 531 U.S. 230, 239-41 (2001). It made anyone convicted under §§ 922, 924, 841, or 846 (with a gun enhancement) ineligible for the RDAP sentence reduction. Then, in Paulsen v. Daniels, 413 F.3d 999, 1004-05 (9th Cir. 2005), the Ninth Circuit found that the BOP's interim rule had not been created properly under the Administrative Procedures Act (APA). In early 2008, the Ninth Circuit handed down Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), finding that a replacement rule in 2000 also violated the APA because the rule was "arbitrary and capricious" and was invalid. Underutilization: The BOP does not make eligibility determinations early enough to ensure that prisoners who qualify receive the full year credit. This is because the BOP, when calculating proximity to release for purposes of who should take part in the overall drug program, does not include the possibility that a successful participant will be closer to release by one year. In other words, prisoners who are eligible for the reduction see non-eligible prisoners take their places in programs based on release dates that do not include the one-year reduction. The district courts are split on the issue of waiting until it is too late to evaluate and place prisoners in the program.[ii] The interpretation of "proximity to release" in 18 U.S.C. § 3621(e)(1)(C) is pending.[iii] Potential Allies, Potential Opposition, and Public Opinion: Potential Allies: National Council on Crime and Delinquency, Federal Public and Community Defenders, American Bar Association, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, Public Policy Section of the Academy of Criminal Justice Scientists, International Community Corrections Association, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, and the Constitution Project Public Opinion: A poll done by Zogby International on behalf of the National Council on Crime and Delinquency (2006) found "by almost an 8 to 1 margin (87 percent to 11 percent), the US voting public is in favor of rehabilitative services for prisoners as opposed to a punishment-only system. Of those polled, 70 percent favored services both during incarceration and after release from prison." Of those polled, 79 percent agreed that drug treatment was "very important" for successful reintegration into society after incarceration.[iv] A poll conducted by Peter D. Hart (2001) found that 63 percent of respondents were in favor of "reduc[ing] prison sentences for people convicted of nonviolent crimes." While 68 percent of those polled supported rehabilitative programming, only 28 percent favored longer sentences. Experts:
For Further Information: Stephen R. Sady, Lynn Deffebach, The Sentencing Commission, the Bureau of Prisons, and the Need for Full Implementation of Existing Ameliorative Statutes to Address Unwarranted and Unauthorized Over-Incarceration (June 2008) paper presented to the USSC Alternatives to Incarceration Seminar. Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf [i] The Federal Bureau of Prisons Annual Report on Substance Abuse Treatment Programs Fiscal Year 2007, Report to Congress, 10 (January 2008). [ii] See Salvador-Orta v. Daniels, 531 F.Supp.2d 1252 (D.Or. 2008) (citing cases). [iii] Thurman v. Thomas, No. 06-1400 (D.Or. filed Oct. 2, 2006). [iv]Krisberg, Barry, Ph.D. & Marchionna, Susan. Attitudes of U.S. Voters toward Prisoner Rehabilitation and Reentry Policies. National Council on Crime and Delinquency, 1, 5 (April 2006). |
| Last Updated on Wednesday, 19 November 2008 16:26 |