Blog Article 

 Substance Abuse Can Lead to a Time Cut 

Michael Santos

Michael Santos

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The Bureau of Prisons offers one program that qualifies for a time cut. Learn more about the Residential Drug Abuse Program, also known as RDAP

The prison system is designed to receive. The Eagles rock group sang about a similar situation in their hit song, Hotel California. “You can check out any time you want but you can never leave.”

Unlike anywhere else in America, prison is a place where few opportunities exist for an individual to distinguish himself in a positive way. For example, in a separate article, we discussed the custody and classification systems. It’s a system with an infinite number of ways to make time harder. With few exceptions, working to advance the release date is limited to two factors:

•    The turning of calendar pages, and
•    The avoidance of disciplinary infractions.

Early Release:
For those who meet specific criteria, a single program exists that could result in a time cut of one full year off of the release date. If people meet the right criteria, they will qualify for this time cut. First, they have to qualify for the Residential Drug Abuse Program, otherwise knows as RDAP.

The RDAP program provides an opportunity for a “qualified” individual to lessen the amount of time that he would otherwise serve. Since RDAP is the only administrative mechanism available for the BOP to release an inmate early, it makes sense to learn everything about it.

Title 18, United States Code, Section 3621The above-mentioned law directs the Bureau of Prisons to provide “residential substance abuse treatment (and to make arrangements for appropriate aftercare) for all eligible prisoners.” Again, federal law authorizes the BOP to release some of the people who graduate from RDAP one year sooner than they would be released if they did not complete the RDAP program.

Individuals who would like to learn more may find value in reading Bureau of Prisons Program Statement Number P5331.02:

•    Early Release Procedures

Don’t Wait Until it’s Too Late to Qualify for RDAP:
Defense attorneys have expertise in preparing for trial or in negotiating the best possible plea deal. Relatively few defense attorneys have any experience of dealing with the nuances and programs available in the Federal Bureau of Prisons. As a consequence, they do not advise on esoteric programs like RDAP.

Unfortunately, in order to qualify for the full benefits of RDAP, the individual must meet specific criteria. Time is of the essence for those who want to qualify for the benefits of the RDAP program.  If the individual does not take the steps necessary to ensure that he is in compliance with the criteria specified in the above-referenced Program Statement, and the individual does not do so at the appropriate time, the individual will not qualify for early release through RDAP.

Since RDAP is the only available program in prison that can result in the Bureau of Prisons authorizing early release, we urge our clients to learn everything they can about the program and to do so in a timely manner. Individuals must learn about RDAP before they meet with the probation officer who is going to prepare the PSI; the PSI document plays an essential and integral role in determining whether a person qualifies for early release.

What distinguishes RDAP from other BOP programs?
Other lessons that we offer through provide insight into various BOP programs. There are too many “programs” to list. Basically, the BOP adheres to the concept that inmate idleness corresponds to problems for staff. In response, administrators and functionaries within the system create programs to bring structure inside the boundaries. Some programs are mandatory, like programs that require individuals to labor at various jobs or work details. Other programs are voluntary, like recreation, counseling, religious services, or some types of education programs.

Besides offering the prospect for early release, the RDAP program differs from other BOP programs in that it is more comprehensive. There are a series of incremental steps that at an inmate must take in order to qualify.

•    The inmate must meet with a representative of the psychology department. That staff psychologist, who may or may not have a degree in psychology, will perform a cursory review of the inmate’s PSI.
•    Then the psychologist will interview the prisoner. During the interview, the psychologist will gather information about the prisoner’s history with substance abuse.
•    At the same time, the psychologist will encourage the inmate to participate in a series of programs that teach about the dangers of substance abuse. Those programs will last between 10 and 40 hours.
•    At the appropriate time, the inmate may submit an application to the drug treatment specialist for RDAP consideration.
•    If the staff members agree that the inmate is eligible, they will allow him to participate at the appropriate time.
•    If the inmate successfully completes the RDAP program, a process will begin to award him a reduction of sentence.
•    The amount of reduction will depend upon the sentence that the judge imposed and upon the time remaining to serve when the individual completed the RDAP program.

What Steps Does an Individual Have to Take to Qualify for Early Release Through RDAP?
If a person wants to participate, he should take the necessary steps to ensure he qualifies.

Those who want to work independently to qualify for RDAP may find some value in understanding what BOP administrators want to see before admitting an individual into the program, and ultimately, reducing the time in prison. Before allowing an individual into RDAP, administrators want to ensure that:

•    The individual has a sufficient amount of time remaining to complete the RDAP program.

•    The individual has a documented and verifiable substance abuse disorder.

•    The verifiable substance abuse disorder occurred within 12 months prior to the prisoner’s arrest for his current offense.

•    The individual has the mental capacity to complete the RDAP program.

How would a BOP staff member determine whether there was a “verifiable” substance abuse problem?
The BOP limits the benefits of RDAP to people who have “verifiable substance abuse” problems. If the PSI properly documents those substance abuse problems, and the individual isn’t disqualified because of the nature of his offense, the individual may participate in RDAP and receive up to 12 months off the release date.

If the individual’s PSI fails to document the substance abuse problem, other potential ways to offer the verification include:

•    Provide a letter from a medical doctor, mental health professional, or drug-abuse treatment provider that documents history of substance abuse.

•    Show two or more convictions for driving under the influence within a specific time prior to the individual’s arrest on the current offense.

•    Letter from a judge, probation officer, or social worker that documents substance abuse.

The prisoner may work to provide that documentation after he is incarcerated. Yet the challenge of meeting the BOP’s documentation requirements become much more intense—though not impossible—after the PSI. Again, at White Collar Advice, we cannot emphasize enough the importance of preparing for the PSI and the sentencing hearing.

What is a Verifiable Substance Abuse Disorder?
The BOP relies upon a validated instrument to define this condition. Again, BOP administrators are programmed “to receive.” They proceed through training that conditions them to view inmates cynically. Individuals should prepare themselves to encounter a BOP staff culture that wants to keep people in custody and away from their family for as long as possible. Accordingly, they will not want to enroll people into the RDAP program if the individual failed to provide the appropriate documentation for the substance abuse disorder. Documentation that shows recreational, social, or occasional use of alcohol drugs may not be sufficient to qualify for RDAP.  Individuals who want to qualify may want to research the following validated instrument:

•    Diagnostics and Statistical Manual of the Mental Disorders, Fourth Edition (DSM-IV)

Bureau of Prisons administrators rely upon that validated instrument when determining whether an applicant qualifies for RDAP. Some bullet points on what it means to qualify for RDAP follow:

•    Document a history of dependence of substance abuse.
•    Document a pattern of problems that have resulted from substance abuse.
•    Document how you’ve built up a tolerance, requiring heavier doses to achieve the intended result.

•    Document withdrawal symptoms.

•    Document how substance abuse has influenced daily activities and responsibilities.

•    Document how substance abuse has led to hazardous situations.

•    Document how substance abuse has led to troubles with the law.

•    Document how substance abuse has led to significant social or interpersonal problems.

•    Document evidence that shows the substance abuse problem existed 12 months prior to arrest.

Each individual must answer the question:

•    Am I willing to take the necessary steps to qualify for a program that would lead to my being released from prison up to 12 months early?

If the answer to that question is yes, then the individual should work with counsel or experienced advisors who can ensure that all of the appropriate documentation is in order. It would be best for an individual to compile that documentation prior to meeting with the probation officer who will complete the PSI.

“If I had a substance abuse problem in the privacy of my home,” they ask, “how would anyone know?”

It may be helpful to provide insight into a high profile individual who received a one-year time cut because of his participation in RDAP.

•    Sam Waksal    

Dr. Sam Waksal founded the biotech company formerly known as ImClone Systems. As CEO, he led ImClone to a high-profile public offering on the NASDAQ. The stock surged on hopes of Erbitux, a cancer antibody that promised to bring extraordinary profits. Bristol-Myers Squibb purchased a huge equity positin in the company.

But when the FDA delayed progress, Sam sold a significant stake. He later was convicted on charges related to securities fraud, wire fraud, and bank fraud. A judge imposed a lengthy sentence. Prior to meeting with his probation officer, Sam’s advisors explained how he could prepare for his PSI. Those preparations led Sam to qualify for RDAP. Sam’s successful completion of RDAP led to Sam’s being released from prison one year earlier than he otherwise would have been released.

The national media covered Sam Waksal’s high-profile career and his downfall. We don’t suspect that anyone who read about Dr. Waksal would consider him a serial substance abuser. Nevertheless, he invested resources to work with an advisor. Then Dr. Waksal began building a record that would qualify him for RDAP. As a consequence of those steps that he took, Dr. Waksal walked out of prison one year sooner than he otherwise would have walked out. Further, not long after his release from prison, Sam Waksal launched a new biotech venture, Kadmon. According to The New York Times, Waksal has plans in motion to launch another public offering, despite convictions for fraud, despite five years in prison, and despite his participation in RDAP.

Our question for you is whether you would find value in being released from prison up to 12 months earlier? If so, what resources are you investing to ensure you qualify?

We frequently hear some variation of the following:

•    My attorney told me that I couldn’t qualify for RDAP because I never used drugs. I was simply too embarrassed to admit my substance abuse. Is there anything you can do to help me get into the drug program, even though I said that I didn’t have a substance abuse problem before?

•    I didn’t say that I used drugs because I didn’t want to further complications getting in the way of my career search when I got out of prison. What can I do now to qualify for the RDAP program?

•    I didn’t know that if I would’ve mentioned my drinking problem that I could qualify for a program that would result in my being released from prison early. How can you help me get into RDAP?

Yet individuals who want to help themselves may find value in the following suggestions, prior to meeting with the probation officer for the PSI:

•    Document a history of dependence of substance abuse:
o    To accomplish this goal, an individual may consider writing a narrative that describes the substance abuse prior to the meeting with the probation officer, then handing the narrative to the probation officer during the meeting.
•    Document a pattern of problems that have resulted from substance abuse.
o    To accomplish this goal, an individual may consider working with others in the support group who may verify that they’ve witnessed the substance abuse.
•    Document how you’ve built up a tolerance, requiring heavier doses to achieve the intended result.
o    To accomplish this goal, the individual’s narrative may describe how the substance abuse began with recreational use. Then elaborate on how the substance abuse escalated over time.
•    Document withdrawal symptoms.
o    To accomplish this goal, the individual may write about the feelings of hopelessness that followed every time the individual tried to stop.
•    Document how substance abuse has influenced daily activities and responsibilities.
o    To accomplish this goal, the individual may ask an employer to validate that work performance suffered as a consequence of substance abuse.
•    Document how substance abuse has led to hazardous situations.
o    To accomplish this goal, someone from the individual’s support group may write about how the individual drove while under the influence of illicit substances.
•    Document how substance abuse has led to troubles with the law.
o    To accomplish this goal, the individual may attribute his current criminal problems to bad decisions made while under the influence of illicit substances.
•    Document how substance abuse has led to significant social or interpersonal problems.
o    To accomplish this goal, people in the support group may write letters recommending the candidate for substance-abuse treatment during the incarceration period in order to ensure family support continues, and to prepare the individual for success upon release.
•    Document the substance abuse problem was present within 12 months of the individual’s arrest.
o    To accomplish this goal, the individual’s narrative may indicate that he has been self-medicating with illicit substances for years. Bad decisions he made while under the influence led to his current problems with the law.

What would disqualify an individual from receiving the sentence reduction from RDAP?
The law that provides for RDAP precludes some individuals from being eligible for RDAP. For example, if an individual’s criminal history includes any of the following factors, the BOP would be statutorily barred from being able to issue a time cut:

•    The BOP cannot issue time cuts to individuals who face deportation from the United States Immigration and Customs Enforcement.

•    The BOP cannot issue time cuts to people who’ve been convicted of violent crimes.

•    The BOP cannot issue time cuts to people who, for whatever reason, would be ineligible for placement in a halfway house.

Essentially, Title 18 of the United States Code, Section 3621, only authorizes nonviolent offenders who do not have immigration problems to receive the time-cut benefits of RDAP.

Structure of RDAP program:
Although administrators in various BOP facilities may put their own spin on how they implement RDAP, all programs will follow the basic format described below:

•    The individual will apply to participate in RDAP at the appropriate time in his sentence, and that will depend upon security level. In a minimum-security prison, the individual will apply when he is within about 30-months of release. If the individual is in low-security prison or higher, the application process may begin at the 48-month mark.

•    Release dates will govern when an individual begins the program. He will join a group of between 20 to 30 others who have release dates that are similar. They will begin the program together and conclude the program together, unless an individual is removed for some reason. Once selected, all people in the cohort will move to a housing unit that is designated for RDAP participants to begin the unit-based component.

•    The BOP refers to RDAP as a “residence” program, meaning that the people who participate in the program live in the same housing unit. The program lasts between eight and ten months. Participants who proceed through the program accumulate 500 hours of coursework time. Ordinarily, participants attend class for four hours a day and they participate on regular work assignments for the remainder of each weekday. Graduates in many programs must write a biography of between 25 and 40 pages. There are different modules, each with different phases that require testing and essay writing. A significant portion of the work centers on developing life skills. The program is group-centric, requiring participation from each person in the cohort. The exercises include team building, and sharing.

•    In higher security prisons, people may still have considerable amounts of time to serve after they complete the RDAP program. They will receive the one-year time cut if they qualify, but several months or years may have to pass before they are released. If that is the case, administrators will require RDAP graduates to participate in follow-up services while they’re in prison. If they receive a disciplinary infraction, the BOP may forfeit the time cut.

•    In minimum-security prisons, participants will ordinarily transfer to a halfway house within days of completing RDAP. While in the halfway house, they will have to participate in a program called “Transitional Drug Abuse Treatment.” The TDAT program lasts for six months, and individuals must complete that portion of the program in order to fully complete the RDAP program. If an individual fails, the BOP can order the individual back to prison and rescind the time cut.

•    If the individual’s sentence is 30 months or less, the BOP will reduce the individual’s sentence by up to six months.

•    If the individual’s sentence is between 31 to 36 months, the BOP will reduce the individual’s sentence by up to nine months.

•    If the individual’s sentence is 37 months or longer, the BOP will reduce the sentence by up to 12 months.

Not all BOP facilities offer the RDAP program. If an individual qualifies for RDAP, but starts serving the sentence in a facility where the program isn’t available, administrators will transfer the individual to an appropriate prison in time to begin the next cohort of classes when the time is right.

Questions:

•    What would it mean for your family if you could advance your release date by a year?

•    What downside would you experience by preparing to qualify for RDAP?

•    In what ways are you preparing to respond to questions about substance abuse during your PSI interview?

•    What have you learned from your attorney about the RDAP program?

•    What level of comfort would you find in talking with individuals who received a sentence-reduction after successfully completing RDAP?

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