Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Saturday, July 21, 2007

Jim Black and the RDAP Program

A big story in North Carolina this year has been the downfall of Jim Black, former four-term House Speaker. Black, 72, is from Matthews, a suburb of Charlotte, so he doesn't live far from me and the story has, of course, been large here.

In Feb, he pled guilty to one count of accepting something of value (i.e. $25K-$30K from chiropractors while pushing legislation that would benefit them). Ironically, his plea was entered on Feb 14, one day after I was sentenced.

On Jul 11, he was senteced to 63 months in prison. Originally, the media indicated his guideline sentence was 33-41 months -- "An initial recommended sentence was between 33 and 41 months. Boyle agreed with the bribery punishment [recommended by probation] and boosted the punishment range to 63 to 78 months based on Black’s role in other schemes. He limited Black’s accountability to the $29,000 he received from chiropractors and took the lower end of the range." -- but the judge took away his acceptance of responsibility points (the prosecution claimed he did not fully cooperate as his plea agreement required) and further enhanced his sentence, claiming his conduct should count as bribery. In other words, he was sentenced for accepting a bribe despite the fact that he pled guilty to a lesser charge. It seems to me that he gained almost nothing from the plea, except of course the time and expense of a trial. The sentence is devastatingly harsh.

You can read about the entire matter here. I don't expect a lot of people to be sympathetic to a powerful politician that apparently engaged in corrupt conduct, but I just get a little tired of everyone kicking someone to death when they're down, as if this mistake defines everything about Jim Black and somehow undoes every good thing he may have done in his life. The German's have a wonderful word for this - schadenfreude (click on the link for definition). While I don't think my media treatment was all that bad (at least, it didn't bother me much), I met enough guys in prison whose treatment was so over-the-top one-dimensional that you would have thought they were Hitler's long lost relatives. In any case, enough of my aside... back to the story.

He was scheduled to report to prison on July 30, but has requested a delay, fearing that BOP will not have his assignment in time. He has good reason to be concerned. Some judges assign a reporting date, others leave it up to BOP. I was assigned to report approximately 6 weeks after I was sentenced (Feb 13-Mar 30). It took BOP about 4 weeks to give me a location so I was able to self-surrender on the appointed date. Black's judge has only given him 3 weeks to report. Yikes.

What happens if BOP has not given you a prison by the time your surrender date has arrived? Can anyone say diesel therapy, one of the most dreaded aspects of the prison experience? Generally, you must report to the local county jail on your surrender date. Then, once BOP figures out where they want you to go, you hop on the ole prison bus and hope you are the first stop. Good luck. To quote from the link above:

Imagine being handcuffed with a chain around your waist securing the handcuffs to your stomach area. You can't move your arms up and down or side to side. Your feet are shackled, limiting you to baby steps. Now get on a bus. And then be stuck on the bus with similarly shackled convicts forever. (It starts at three or four in the morning, and 12-­16 hour days are the norm.) You can try and guess where you're going, but you never will.
The reason for the high security is inmates in transit are not segregated by security level so Jim Black could find himself seated next to a mass murderer.

Fortunately, I never had to experience this. Jim Black, at 72, certainly does not want to.

However, the issue I primarily want to discuss is his recent "admission" of alcholism and request to be assigned to Butner prison near Raleigh (3 hours from Charlotte and where his case was). Butner is best known for its federal medical center which houses inmates with significant health issues. (Inmates with chronic health concerns should not be assigned to a work camp such as Pensacola, although there were several guys there who could barely walk up the stairs, let alone carry a weedeater.)

What is really going on here, and it is smart of his lawyer to raise the issue, is an attempt to shorten his prison sentence. Everyone familiar with the system (including the judge and prosecutors) knows that is what is going on; it is a common game within BOP. I hesitate to call it a "game" because the program apparently seems to yield benefits but there is no denying the attraction of getting a year knocked off your sentence. If you hang a carrot like that in from of a bunch of cons, well, don't be surprised if they figure out a way to "con" their way into the program.

By statute (18 U.S.C. § 3621(e)), eligible inmates can earn up to 1 year off of their sentence by completing a 9 month (500 hour) Residential Drug and Alcohol Program (RDAP). The following are good references describing the technical aspects of this program that many defendants are unaware of.

Black's lawyer has asked the judge to recommend his admission to the program. Ultimately, as with the designation of the actual prison facility, this is a BOP decision, but any recommendation by the judge certainly can't hurt.

BOP is in the unenviable position of determining whether an inmate legitimately has an "issue" or whether he is making it up to get into the program for the sole purpose of shortening his sentence -- up to 1 year, although by my calculations, it could be a year and half if you are talking about actual time in prison rather than half-way house also.

The program lasts for 9 months and involves 3-4 hours of group and individual therapy 5 days a week. They have flexible on-site work details for the other hours. In Pensacola, a new class of 13 guys would start about every 6 weeks. There are 8 classes running at once (4 morning shifts and 4 afternoon shifts) for a maximum of 104 guys in the program at once. All DAP inmates live in the same quarters, which is Dorm D (see picture below), which has eight 12-bed cubicles. (Since some guys always drop out of the program, the 96 beds are enough to house all the DAP inmates.)

(click to enlarge)

By most accounts, the counselors really do try to make a difference. They want the guys to get out and not come back. Some complain that the program is repetitive and could be completed in 1/3 of the time but, then again, in my opinion, good pedagogy requires repetition and, when you are talking about therapy, it's not just about the knowledge but the application, which can take time.

Does it work? According to Ellis' document above, recidivism was reduced 25% among men and a stunning 70% among women.

You are eligible to be considered for RDAP once you are within 36 months of release but you are not allowed to begin the program until the 27 month mark. In practice, most do not enter the program till about 22-24 months, so on average you will get closer to 8-9 months off your sentence, which may not seem like much but, trust me, that is HUGE. In theory, if you get in at 27 months, you will get out in 9 months, which is an 18 month sentence reduction. Yes, you still have to spend 6 months in a halfway house, but most guys don't think of that as "prison." (I think this is why they call it a 1 year reduction whereas it seems to me to be longer.)

At Pensacola, there was much jockeying to get into the program. Indeed, at one point, there were about a dozen inmates who transferred to Edgefield (SC), because they thought they would get into the RDAP program in Edgefield earlier. (Edgefield sent 12 of their guys, who didn't need the program, to Pensacola.)

A particular point of frustration for some of the drug offenders was when white collar inmates, with no obvious drug or alcohol issues, would get into the program ahead of them. For example, in my pre-sentence report (PSR), I listed "casual" when asked about alcohlol use. If my sentence had been several years, I could have attempted to use that to get into the RDAP program. (Even if I had listed "none," I could later claim I was in "denial" -- a symptom of alcoholism!) That, in itself, probably would not have been enough, but if I could have convinced BOP that my problem was more serious, I could have gotten in. After all, a lot of defendants increase their alcohol (or prescription drug) consumption in response to the stress of their prosecution leading up to prison. While they may not have had a obvious drug or alcohol problem prior to their legal problems, is it really so hard to imagine someone developing one after? At least, that's their story (perhaps it is Jim Black's story, or at least the one his lawyer is pushing) and they are sticking to it!

Once you complete your 9 months in the program, you are released to 6 months in a halfway house about 2 weeks later (after they have a nice little graduation ceremony). The halfway house involves continued treatment. In many cases, you can leave the halfway house earlier and spend the remainder of the 6 months in home confinement. During supervised release, you typically have stricter conditions, including no alcohol use whatsoever (normally only "excessive" use is prohibited). And, God help you if you get a DUI on probation. My point is that, if you don't really have a drug or alcohol problem but sneak yourself in for the benefit of the early release, you may find the additional treatment requirements and probation restrictions once you get out to be cumbersome.

Let me illustrate how this works as I understand it, using one of my former roommates as an example. Louis was sentenced to 27 months for embezzlement but his PSR identifies some issues with drugs. When he entered prison in April, he was unaware of both the 15% good-time credit and the RDAP program. He was mentally prepared to spend the full 27 months, but he was able to get into the drug program almost right away, beginning in June, just before I was released. He will end up serving only 11 months in prison and then 6 months in a halfway house near his home. Originally, he would have served about 22 months in prison and 2 months in a halfway house. So he will spend 11 months less in prison and 7 months less in prison and halfway house (maybe more if they let him leave the halfway house early). I knew another man who had a 24 month sentence, got into the drug program within a month and, therefore, will only spend 10 months time in prison. I can assure you he is one happy guy.

What about Jim Black? He has a 63 months sentence. By my calculations, he will serve 56-57 months (it might be a little closer to 55, but the 15% good-time is much more complicated to calculate than you might imagine... separate article). Since 10% can be in a halfway house, he will actually spend about 50-52 months in prison. If he can get the full credit for the RDAP program, that could be reduced to 40-42 months, about 3½ years, plus 6 months in a halfway house. That's a pretty big incentive to develop an alcohol problem :) It's not surprising that a few skeptics have popped up.

By the way, I posted a couple comments on this Charlotte Observer blog article recently about Black's sentence. You can probably figure out which comments are mine, even though I am not identified.

To finish this too long article on a lighter note, if you look at the 2nd satellite map at the bottom of the page, which labels the various building at FPC Pensacola, you will notice a building at the bottom identified as the new DAP building under renovation. It is across the street from the main control center. This is where future DAP inmates will be housed. However, what makes it funny is the building to its right about 50 yards.... the Touch N Go Club, a Naval Bar!!! BOP is housing inmates with drug and alcohol problems right next to a bar. The name Touch N Go invites so many jokes that I don't know where to begin.


Anonymous said...

Bill - just spent a lot of time reading your blog from the beginning because I am trying to learn as much as possible due to an impending appointment.

I am interested in trying to reduce a federal sentence. Two questions if you have a moment. First, do you know whether it is possible to change your sentence to incorporate any home confinement even if your report did not include it?

Second, you wrote:
"Since 10% can be in a halfway house" - to the extent home confinement is not a possibility, my guess is that a halway house would be better than a camp - if true, at what point does one request a halfway house?

thanks again for your excellent blog - not only a great resource, but very well written as well.

Bill Bailey said...

Thanks for reading and your question.

By "appointment" do you mean a sentencing hearing or a reporting date (i.e. you have already been sentenced)?

By "report," I assume you mean your presentence report (PSR).

If you have already been sentenced, the only thing -- short of appealing your sentence -- I can think of that can allow you to reduce your sentence as a matter of law is to get into the RDAP program.

Normally, according to the guidelines, you are only eligible for home confinement as part of your sentence if you are at 12 points or less. (Of course, after Booker, the guidelines are technically advisory and the judge could conceivably construct any sentence he wants if you are over 12 points but I would consider it highly unlikely, short of extremely unusual personal circumstances, for a judge to do that.)

The 10% halfway house, for sentences greater than 1 year, is automatic unless you lose it due to bad behavior. You don't request it. The 10% is based on time served (that is, after your good-time credit is assigned). For example, if your sentence is 36 months and they give you 5 months credit for good time, leaving 31 months, then you get 3.1 months in a halfway house, not 3.6.

Also, the 10% calculation is capped at 6 months, which means for sentences over about 6 years (72 months, which translate into about 60 months after good time), you don't get the full 10% because it would end up more than 6 months.

As a matter of practice, halfway houses are overcrowded so, if you have another place to stay, you can often leave after 2-4 weeks rather than serve the full halfway house term (you still have to pay halfway house rent though -- 25% of gross pay, capped I believe at $400). Or so I hear... I don't have a reference to back that up. My sentence was less than a year so I was eligible for neither good time nor halfway house.

As to whether halfway house is better than a camp, it really depends on the halfway house. I hear they can vary dramatically. Plus they are almost always located in the "bad" section of town, oftentimes right next to the local homeless shelter. Yes, you do have more freedom, but the conditions might be worse. If I had a one year sentence (which means 9½ months in prison and about 1 month in halfway house), I might almost be tempted to stay in prison if I had established a routine and a comfort level. I'm not so sure you have a choice though. I think they want to move you out to make room for someone else. Overcrowding is a problem.

Anonymous said...

Thanks for the quick and detailed response. Really appreciate it. Yes, I meant "sentenced" as in already. By "report," I did mean the presentence report. Unfortunately, it is most likely too late to pursue the RDAP route, but the other information about the halfway house is very helpful. Thanks again.

Anonymous said...

Hi- My son is in the same facility as Jim Black. He according to my son is a very nice man. My son is doing a 10 year bid for Marijuana. It really saddens me to see all these non-violent people locked up for ridiculous amounts of time while the murderer's and rapists, as well as pedophiles skate on little or no time.I also know about 6 more people who are waiting to be sentenced for marijuana and will be interested in your column Rabbit Hole. I will try and print this and perhaps I'll give it to Jim on my next visit. PEACE

angelaP said...

My husband Just got a 37 month federal sentence..Judge recommened him for RDAP...whats the release date looking for him?_oh he has ( months served

Bill Bailey said...


A 37 month sentence after good time credit (about 145 days) will end up being about 32 months of incarceration of which the last 3.2 months will be in halfway house. Roughly then, 29 months in prison, 3 months in halfway house.

So would would it be with RDAP?

It has been almost 3 years since I was in prison so the rules might have changed but basically you had to be within 27 months of release to apply for RDAP and most people didn't get in until about 23 months remaining.

Once you get in, it's a 9 month program at which point you are released to 6 months in a halfway house with intensive treatment.

So.... if you don't count the halfway house time as "prison" (although some people think it is worse than a prison camp.. i think it depends on the halfway house), then if he gets in the program at 27 months then he would get out with 18 months remaining which is a lot.

Best case scenario is that he would have to wait 10 months to get in (37-27). Then he does 9 months in program so he would spend 19 months in prison. Then he would do 6 months in halfway house.

So my calculations are that without RDAP he would do 29 months prison, 3 months halfway house. With RDAP, he would do 19 months prison, 6 months halfway house.

It's possible that they calculate the release date with good time credit factored in. If so then he only has 32 months remaining when he enters prison and would only have to wait 5 months before entering RDAP, instead of 10, which would knock his prison time down to 14 months and 6 months in halfway house.

Of course, each month he doesn't get in RDAP is an extra month in prison that he can't catch up.

That's why a lot of guys get really antsy when they reach 27 months because they know some BOP RDAP counselor completely controls how long they will stay in prison.

Hope that wasn't too complicated.

Anonymous said...

my husband is about 1.5 months into the rap program at pensacola fed prison. He is a white collar criminal. He was hoping for help for the upbeat ritual? Any ideas that I could pass on would be greatly appreciated.

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