The Residential Drug Abuse Program (RDAP)

RDAP is the only BOP program through which federal prisoners can earn a sentence reduction. To qualify for RDAP, one must, inter alia, have at least 24 months or more remaining to serve; present a verifiable, documented pattern of substance abuse or dependence within the 12-month period preceding arrest on the underlying offense; have no serious mental or cognitive impairment precluding full program participation; and be halfway house-eligible (which precludes participation by removable non-U.S. citizens).

The Federal Bureau of Prisons (BOP) estimates that 40 percent of federal inmates have diagnosable, moderate-to-severe substance abuse problems. The BOP operates three drug abuse programs. The first program is the 12- to 15-hour voluntary Drug Abuse Education Course offered at all institutions, designed to teach inmates about the consequences of drug/alcohol abuse and addiction by reviewing their personal drug use and the cycle of drug use and crime. The second program is the 12- to 24-week (90–120 minutes per week) Non-Residential Drug Abuse Treatment (NR DAP), which is targeted to, inter alia, those awaiting RDAP, those who do not meet RDAP admission criteria, and those found guilty of an incident report for use of drugs or alcohol. In addition to paying NR DAP graduates $30, BOP policy encourages wardens to consider them for maximum pre-release (halfway house and/or home confinement) placement. The third program is the nine-plus month, 500-hour Residential Drug Abuse Treatment Program (RDAP) for inmates with diagnosable and verifiable substance abuse disorders.

RDAP has been in existence since 1989 and employs Cognitive Behavioral Therapy (CBT) to treat substance abuse. The “inpatient” component is followed by an aftercare component, which is administered in the community during the final six months of an inmate’s sentence. Male inmates who successfully complete RDAP are 16 percent less likely to be re-arrested or revoked than cohorts who go untreated, and male RDAP graduates are 15 percent less likely to use drugs. Female graduates are 18 percent less likely to re-offend or use drugs. Id.

Through the 1994 Crime Bill, Congress also created an incentive for RDAP participation: Those nonviolent offenders who successfully complete the program while incarcerated (and who have not previously received early release via RDAP) are eligible for release up to one year before the expiration of sentence. 18 U.S.C. §3621(e). Importantly, prisoners ineligible for a reduction in sentence under §3621(e) are not precluded from participating in RDAP; the two are not mutually exclusive.

Congress’s action had its desired result, especially since RDAP is the only BOP program through which federal prisoners can earn a sentence reduction.

Admission to RDAP

RDAP participation is voluntary. Interested prisoners within 36 months of release may apply by requesting an eligibility interview via a “cop-out” (informal request from a staff member) or a BP-8 (formal request for resolution). The written request serves to initiate the RDAP application and should prompt an interview with either the institution’s RDAP Coordinator or a drug treatment specialist (DTS), or, if a prisoner is housed at a facility that does not offer the RDAP, a member of the Psychology Services staff.

To qualify for RDAP, one must, inter alia, have at least 24 months or more remaining to serve; present a verifiable, documented pattern of substance abuse or dependence within the 12-month period preceding arrest on the underlying offense; have no serious mental or cognitive impairment precluding full program participation; be halfway house eligible (which precludes participation by removable non-U.S. citizens); and sign acknowledgment of program responsibilities.

Section 3621 is silent with respect to how determinations about whether a prisoner has “a substance abuse problem” are made. And, while 28 C.F.R. §550.53(b) establishes criteria, in practice Program Statement 5330.11 controls. Staff reviews each program applicant’s PSR before scheduling an interview to ascertain whether the applicant meets the diagnostic criteria for abuse or dependence indicated in the Diagnostic and Statistical Manual of the Mental Disorders, Fourth Edition, (DSM-IV). An RDAP applicant’s chemical dependency need not be linked to his offense conduct, nor is a judicial recommendation necessary. There is, however, debate over how much drug or alcohol use is enough. Compare P.S. 5330.11 §2.5.8(2)-NOTE (“recreational, social, or occasional use of alcohol and/or other drugs that does not rise to the level of excessive or abusive drinking does not provide the required verification of a substance abuse disorder”) with Kuna v. Daniels, 234 F.Supp.2d 1168 (D. Or.2002) (social use of alcohol sufficient to warrant RDAP admission).

In terms of assessing a prisoner’s substance abuse history, the BOP places primary reliance on a prisoner’s self-reporting to the Presentence Investigation Report (PSR) writer. Whatever is written in the PSR is presumptively valid, and any claim of a disorder that the PSR does not plainly substantiate is treated as suspect. Counsel must, therefore, be attuned to a client’s substance abuse history. Counsel should meet with the client before the presentence interview to fully understand the nature and extent of the client’s problem(s) (e.g., illegal drugs, prescribed pharmaceuticals, alcohol, etc.). Prudence also dictates that counsel encourage clients to be fully forthcoming with the PSR writer, that is, not to minimize for fear of embarrassment. Subject to client pre-approval, counsel can foster this conversation by offering the PSR writer an overview during the interview, allowing the writer to follow-up directly with the client as deemed appropriate. Counsel can also provide documentation (e.g., medical records and clinical assessments) from an independent professional (e.g., physician, mental health professional, drug and alcohol counselor) concerning the existence and degree of a client’s dependence. Barring that, it is useful to find records that demonstrate the nature and extent of the client’s substance abuse difficulties, such as certified copies of DUI judgments, hospital records noting blood alcohol level, and/or a primary physician’s treatment notes with entries that substantiate the existence of the problem

Given the §3621(e) incentive, and to ferret out malingering, RDAP eligibility interviews often entail difficult questions designed to determine whether admission is sought in good faith to obtain treatment, or simply to secure a quicker return home. Applicants are routinely asked when they learned about the program and the §3621(e) credit, whether attorneys advised them to exaggerate treatment needs when meeting with probation, and the details of their drug or alcohol use (e.g., when, how often, where, with whom, others’ awareness, etc.). Counsel should thus advise clients not to malinger or to overstate their problems, either during the presentence interview or when seeking entrance into the program.

Should the BOP deem a PSR factually insufficient, an inmate might well be refused an interview or found ineligible for services. In that instance, counsel and/or the client may supply “collateral documentation.” As set forth in P.S. 5330.11, this “requires documentation from a substance abuse treatment provider or medical provider who diagnosed and treated the inmate for a substance abuse disorder within the 12-month period before the inmate’s arrest on his or her current offense.” (Emphasis added). This documentation must be sent to and received by the drug abuse treatment staff in the Bureau of Prisons institution. It is not to be sent through the inmate for him or her to provide to the drug abuse treatment staff. If the document is acceptable, the inmate will be referred to the Drug Abuse Program Coordinator for a diagnostic interview. Multiple convictions (two or more) for Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) in the five years prior to his or her most recent arrest will suffice to show eligibility for the RDAP program.

Program Statement 5330.11 directs that otherwise eligible prisoners must “ordinarily” be within 24 months of release to qualify for admittance to RDAP. Accounting for customary good time credits, the 24-month cutoff means that a defendant with a diagnosable disorder and no pretrial jail credit must receive a sentence of 27.6 months or greater to even be considered for the program. Notably, BOP officials have stated publicly that the 24-month cutoff has shifted to 27 months, which means a sentence of at least 31 months (if the prisoner is ineligible for pretrial jail credit).

Ineligibility for RDAP

The following categories of inmates are not eligible for the RDAP Program:

(1) Immigration and Customs Enforcement detainees;

(2) Pretrial inmates;

(3) Contractual boarders (for example, State or military inmates);

(4) Inmates with detainers that preclude halfway house placement.

The Sentence Reduction

The determination as to whether an inmate is ineligible for early release has been the subject of significant controversy. After much litigation, the BOP modified the criteria for eligibility for early release from a sentence for successful completion of RDAP. See 28 C.F.R. §550.58; Program Statement 5331.02, Early Release Procedures Under 18 U.S.C. §3621(e) (3/16/2009); and Program Statement 5162.05, Categorization of Offenses (3/16/2009). This change was intended to exclude violent offenders by the exercise of the implicit discretion placed in BOP by the statute, 18 U.S.C. §3621(e)(2)(B), rather than by definition of the statutory language “nonviolent offense.” The authority for determining whether prior offense history or current offense characteristics preclude §3621(e) credit has been moved to the BOP’s Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas.

BOP policy, which the Supreme Court has upheld, denies early release to persons who have been convicted of a crime of violence—homicide, forcible rape, robbery, aggravated assault, child sexual offense (but not possession of child pornography), arson or kidnapping—or a felony offense (1) that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another; (2) that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device); (3) that by its nature or conduct, presents a serious potential risk of physical force against the person or property of another; or (4) that by its nature or conduct involves sexual abuse offenses committed upon children. Inmates with firearm convictions and inmates who have received a two-level adjustment in their drug guideline offense severity score for possession of a dangerous weapon (including a firearm) pursuant to Guideline Section 2D1.1(b)(1) are also ineligible for early release. For information on the specific crimes that would preclude an inmate from an early release, see Program Statement §5162.04.

Inmates who have a prior felony or misdemeanor conviction for:

• Homicide (including deaths caused by recklessness, but not including deaths caused by negligence or justifiable homicide);
• Forcible rape;
• Robbery;
• Aggravated assault;
• Arson;
• Kidnapping; or
• An offense that by its nature or conduct involves sexual abuse offenses committed upon minors.

Inmates who have a current felony conviction for:

• An offense that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another;
• An offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive devise);
• An offense that, by its nature or conduct, presents a serious potential risk of physical force against the person or property of another; or
• An offense that, by its nature or conduct, involves sexual abuse offense committed upon minors;
• Inmates who have been convicted of an attempt, conspiracy, or other offense which involved an underlying offense listed in paragraph (b)(4) and/or (b)(5) of this section; or
• Inmates who previously received an early release under 18 U.S.C. §3621.

Importantly, certain sex offenders, in particular individuals convicted of possession of child pornography, are not automatically disqualified from §3621(e) eligibility.

Amount of Reduction

The Bureau has implemented a sliding scale for the amount of a sentence reduction: those serving 30 months or less are ineligible for more than a six month reduction; those serving 31-36 months are ineligible for more than a nine-month reduction; and those serving 37 months or longer are eligible for the full 12 months. See P.S. 5331.02 §10.

RESIDENTAL DRUG ABUSE PROGRAM LOCATIONS

The Residential Drug Abuse Program (RDAP) is available at the following

facilities:

NORTHEAST REGION

FCI Allenwood – Low (PA)

FCI Allenwood – Med (PA)

FCI Berlin (NH)

USP Canaan (PA)

FCI Danbury (CT)*

FCI Elkton (OH)

FCI Fairton (NJ)

FCI Fort Dix 1 (NJ)

FCI Fort Dix 2 (NJ)

FPC Lewisburg (PA)

FPC McKean (PA)

FCI Schuylkill (PA)

NORTH CENTRAL REGION

FPC Duluth (MN)

FCI Englewood (CO)

FPC Florence (CO)

FCI Florence (CO)

FPC Greenville (IL)*

FPC Leavenworth (KS)

USP Leavenworth (KS)

FCI Milan (MI)

USP Marion (IL)

FCI Oxford (WI)

FPC Pekin (IL)

FCI Sandstone (MN)

USMCFP Springfield (MO)

FCI Terre Haute (IN)

FCI Waseca (MN)*

FPC Yankton (SD)

SOUTHEAST REGION

FCI Coleman (FL)

USP Coleman II (FL)

FPC Edgefield (SC)

FCI Jesup (GA)

FCI Marianna (FL)

FPC Miami (FL)

FPC Montgomery (AL)

FPC Pensacola (FL)

FCI Talladega (AL)

FCI Tallahassee (FL)*

FCI Yazoo City (MS)

MID-ATLANTIC REGION

FPC Alderson (WV)*

FPC Beckley (WV)

FCI Beckley (WV)

USP Big Sandy (KY)

FCI Butner (NC)

FPC Cumberland (MD)

FCI Cumberland (MD)

SFF Hazelton (WV)*

FCI Morgantown (WV)

FMC Lexington (KY)

FMC Lexington (KY)

FCI Petersburg – Low (VA)

FCI Petersburg – Med (VA)

FCI Memphis (TN)

SOUTH CENTRAL REGION

FCI Bastrop (TX)

FPC Beaumont (TX)

FCI Beaumont – Med (TX)

FCI Beaumont – Low (TX)

USP Beaumont (TX)

FPC Bryan (TX)*

FMC Carswell (TX)*

FCI El Reno (OK)

FCI Forrest City – Low (AK)

FCI Forrest City – Med (AK)

FCI Fort Worth (TX)

FCI La Tuna (TX)

FCI Seagoville (TX)

FPC Texarkana (TX)

WESTERN REGION

FCI Dublin (CA)*

FPC Dublin (CA)*

FCI Herlong (CA)

FPC Lompoc (CA)

FPC Phoenix (AZ)*

FCI Phoenix (AZ)

FCI Safford (AZ)

FPC Sheridan (OR)

FCI Sheridan (OR)

FCI Terminal Island (CA)

FCI Terminal Island (CA)

CONTRACT FACILITY

RCI Rivers (NC)

KEY

FCI = Federal Correctional Institution

FMC = Federal Medical Center

FPC = Federal Prison Camp

FSL = Federal Satellite Low

MCFP = Medical Center for Federal

Prisoners

USP = United States Penitentiary

RCI = Rivers Correctional Institution

* = Female Facility