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BOP’s RDAP Program Unevenly Administered and Unnecessarily Costly

by Brandon Sample and Derek Gilna

A comprehensive review of the federal Bureau of Prisons’ (BOP) Residential Drug Abuse Program (RDAP), enacted by Congress in 1994, indicates that almost 20 years after its creation RDAP has yet to fulfill its full potential and is unnecessarily expensive.

The enactment of 18 U.S.C. § 3621, which authorized RDAP, was originally designed to provide not only substance abuse treatment to a large number of BOP prisoners but also to instill lifestyle changes that would reduce recidivism. The program was formulated by Congress to help decrease the rapidly escalating federal prison population by addressing behaviors that result in prisoners committing new crimes after they are released.

Unfortunately, although a positive initiative, RDAP was not initially embraced by BOP prisoners, who objected to the more difficult aspects of the program. As a result enrollment was low and many prisoners accepted into RDAP failed to complete it.

This low level of participation continued until the BOP elected to follow Congress’ legislative mandate in its entirety, specifically § 3621(e)(2), which provides that non-violent prisoners who successfully complete RDAP are eligible for a sentence reduction of “not more than one year.” Paragraph (e)(5)(A) of the same statute additionally provides that the program must be “at least 6 months” in duration.

Simply put, any eligible federal prisoner who puts in the time and effort necessary to complete RDAP will receive up to an additional year off their sentence, along with the usual 15% sentence reduction for “good time” plus placement in a halfway house that further reduces time spent in prison – with the latter being subject to availability and BOP policy. For example, a non-violent prisoner with a seventy-eight month (6½ year) sentence could conceivably be released from prison in just under five years if he received the maximum allowable credits, completed the RDAP program and was released to a halfway house for 6 months.

However, the BOP’s implementation of RDAP has failed to substantially reduce the federal prison population, which continues to expand. The BOP, like many federal agencies, has the authority to formulate rules to execute laws enacted by Congress, and there is a set period of time for public comment regarding that process. After the public comment period expires, the rule is incorporated into BOP Program Statements and has the force of law unless specifically abrogated by subsequent Congressional action.
Unfortunately the BOP has a history of watering down Congress’ legislative intent, as demonstrated by its implementation of both RDAP and the Second Chance Act.

The Second Chance Act was designed to address the growing BOP prison population, now approximately 217,800, by providing funding to programs to help prisoners transition back into society – with the ultimate goal of reducing recidivism. However, the Second Chance Act has not made a dent in the BOP’s prison population, which stands at record levels. Further, a recent examination of Department of Justice data indicates that a large amount of the limited funding for the Second Chance Act goes to state and local governments, including corrections and law enforcement agencies, rather than to community-based programs that assist released prisoners. [See: PLN, July 2012, p.46].

Further, the Second Chance Act specifies that prisoners may be assigned to a halfway house for up to 12 months – doubling the previous length of a halfway house stay. Yet while the average amount of time prisoners are assigned to halfway houses has reportedly increased, in the vast majority of cases the BOP is not providing a full year of halfway house placement for prisoners nearing release, and federal prison officials have indicated that most prisoners will receive a maximum of six months at a halfway house.

Sadly, it appears that RDAP has also fallen victim to the BOP’s practice of implementing rules that may not coincide with Congressional intent. The BOP, via its rule-making authority, has established RDAP as a 9- to 12-month program even though Congress set the minimum duration at six months. BOP Program Statement 5330.11 specifies that RDAP has a “duration of 9 to 12 months,” plus a Transitional Drug Abuse Treatment (TDAT) component of up to six months – which all prisoners who successfully complete RDAP’s in-prison program must finish after they are released to a halfway house.

This lengthy and somewhat arbitrary amount of time necessary to complete the RDAP program costs taxpayers millions of dollars a year. Keeping in mind that most community-based substance abuse treatment programs are generally 30 to 60 days in duration, with some extending up to 6 months, an in-prison RDAP program of 9 to 12 months appears to be excessive. It is also expensive.

Based upon an estimated 18,000 prisoners graduating from RDAP each year, and the average cost of incarceration for federal prisoners running about $28,000 annually (based upon BOP data), requiring an RDAP duration of 9 rather than six months costs approximately $126 million in additional annual incarceration costs. For a 12-month RDAP program the extra cost is around $252 million. Lengthening the RDAP duration also limits the number of prisoners who can enroll in the program and reap its benefits.

In the past, the BOP has been criticized for failing to ensure that all eligible prisoners can participate in RDAP; in 2007, for example, only 80% of federal prisoners eligible for RDAP were enrolled in the program. The BOP’s Annual Re-port on Substance Abuse Treatment Programs for Fiscal Year 2008 stated, “Without additional funding, the agency will [be] unable to meet [Congress’s goal] of treating 100 percent of eligible” prisoners. [See: PLN, Jan. 2010, p.45].

According to the BOP’s 2013 budget request, the department intends to expand RDAP to “all eligible inmates” as required by § 3621, assuming it receives funding to do so. Whether the BOP will in fact provide all eligible prisoners with access to RDAP, and whether federal prison officials will administer that program in a more efficient and cost-effective manner in the future, remains to be seen.

Sources: OJP Awards by Solicitation and State, Bureau of Justice Assistance Grants for Fiscal Year 2011 (as of Sept. 30, 2011); Department of Justice, Bureau of Prisons, report on cost of prisoners (Dec. 28, 2011); 18 U.S.C. § 3621; BOP Program Statements 5331.02 and 5330.11;

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