Residential Drug Abuse Program (RDAP) Information

Federal law allows the BOP to reduce the sentences of non-violent offenders who complete the RDAP program by up to one year. The RDAP program is voluntary and takes 500-hours, nine- to twelve-months to complete. The RDAP is authorized by 18 U.S.C. § 3621, which directs the Bureau of Prisons (BOP) to provide residential substance abuse treatment for all eligible federal inmates.

Does the RDAP benefit state prisoners? RDAP only exists inside Federal prisons, State and Local prisoners cannot participate.

Where can the BOP’s policy statements on RDAP Be Viewed?

The updated 2009 rules and program statements are available online or in prison law libraries

BOP Program Statement # 5331.02 (Mar. 16, 2009) http://www.bop.gov/DataSource/execute/dsPolicyLoc.

Chapter 2 of BOP Program Statement # 5330.11 (Mar. 16, 2009) http://www.bop.gov/DataSource/execute/dsPolicyLoc

BOP Program Statement # 5162.05 (Mar. 16, 2009) http://www.bop.gov/DataSource/execute/dsPolicyLoc.

RDAP is completed in three phases:

Unit-based component. This is a six- to twelve-month, 500-hour residential program. Participants typically live in a special section of the prison and split the day between drug abuse treatment program activities and prison work or educational programs. At the end of this phase, inmates receive a certificate of completion.
Follow-up services. Unless the prisoner is scheduled to go directly to a halfway house after finishing the unit-based component, they will be reintroduced to the general population and will participate in the follow-up services offered in the prison. This is the first part of the after-care requirement.
Transitional drug abuse treatment (TDAT). This lasts up to six months and occurs in a halfway house (or, sometimes, on home confinement, depending on where the BOP assigns the prisoner). This is the second and final part of the RDAP’s after-care requirement.

How does an inmate successfully complete the RDAP?

RDAP can only be completed when a federal inmate finishes all three phases. Though inmates are awarded a “certificate of completion” at the end of the phase I, the residential unit-based program, they do not officially graduate until all three phases are complete. When all three phases are completed, prisoners receive a “certificate of achievement,” a copy of which is placed in their central file. To complete the program successfully, prisoners must attend and participate in all RDAP activities and pass each RDAP testing procedure.

How long is the wait to get into the RDAP?

Despite the restrictions on eligibility, space is limited. The program is extremely popular amongst those who do qualify. The BOP has estimated that thousands of people are on the waiting list. Prisoners who get on the RDAP waiting list can be removed for bad behavior. If this happens, they must wait six months before reapplying for the RDAP.

How soon can a federal inmate begin the RDAP?

Typically, not until they are within 24 months of their release date. The closer you are to your release date, the higher of priority you for entrance into the program.

Are all federal inmates who have used or sold drugs eligible for the RDAP?

No, eligible inmates are those who:

Have a verifiable substance use disorder (see below)
Are willing and able to participate in the program
Sign a statement accepting responsibility for the obligations of the program
Have at least 24 months of their sentence remaining
Are able to complete all three phases of the RDAP, including the community-based program in a halfway house.

This means that anyone who is not eligible for placement in a federal halfway house is not eligible for the RDAP at all.

This includes:

ICE (or INS) detainees (people being detained for being in the country illegally or subject to deportation after serving their sentences)
Pretrial inmates (people who haven’t been convicted yet)
State inmates or military inmates.

Can a federal inmate still be eligible for the RDAP if they must, for health reasons, live outside the RDAP wing or unit?

Yes. Prisoners with documented physical disabilities or medical conditions that require sleeping in another part of the prison can be eligible for the RDAP. They must be otherwise eligible and able to participate in all other program activities, including evening activities. They will be held to the same standards as all other participants and must complete the same program requirements.

How does a prisoner get into the RDAP?

Prisoners can either be referred by drug treatment staff, or they can apply by making a request to the drug abuse program coordinator (DAPC). The DAPC asses qualification into the program based on the following:

Does the inmate have enough time left on their sentence (24 months) to complete the RDAP?
Has the inmate been documented with a verifiable substance abuse disorder within the 12-month period before the prisoner’s arrest for their current offense?
Does the inmate have a cognitive or learning impairment that makes them unable to participate in the RDAP program?
Does the federal inmate have the ability to participate in the RDAP using the language in which it is conducted?

What is a substance abuse disorder?

Having a substance abuse disorder is more than recreational drug and/or alcohol use, it means that an individual uses drugs and/or alcohol to the extent of meeting the definition of substance abuse or dependence in the Diagnostic and Statistical Manual of the Mental Disorders, Fourth Edition (DSM-IV):

Dependence includes having a history of substance use which includes the following: (1) substance abuse (see below); (2) continuation of use despite related problems; (3) increase in tolerance (more of the drug is needed to achieve the same effect); and (4) withdrawal symptoms.

Abuse is a pattern of substance use leading to significant impairment in functioning. One of the following must be present within a 12-month period: (1) recurrent use resulting in a failure to fulfill major obligations at work, school, or home; (2) recurrent use in situations which are physically hazardous (e.g., driving while intoxicated); (3) legal problems resulting from recurrent use; or (4) continued use despite significant social or interpersonal problems caused by the substance use. The symptoms do not meet the

criteria for substance dependence, as abuse is a part of this disorder.” This diagnostic impression must be reviewed and signed by a drug abuse treatment program coordinator. DIAGNOSTIC AND STATISTICAL MANUAL OF THE MENTAL DISORDERS (DSM-IV) (American Psychiatric Publishing, Inc. / Jaypee (4th ed. 2000).

What is a “verifiable” substance use disorder?

The RDAP is limited to those who have real, verifiable, substance abuse disorder(s) and desire treatment. Verifiable means that the problem has been documented by appropriate professionals, preferably in the Presentence Report (PSR). Examples of apropos documentation are: A letter of diagnosis from a medical doctor, mental health professional or a drug abuse treatment provider. A letter from a parole or probation officer, a social worker, or a judge’s recommendation are also helpful in showing that the federal inmate has a verifiable substance use disorder. Two or more convictions for DUI or DWI in the five-year period before the prisoner’s most recent arrest may also verify that the inmate has a substance use disorder. Any and all written documentation of an inmate’s substance abuse problems should be sent to the BOP and put in the prisoner’s central file. If there is no verifying documentation of a substance abuse disorder in the prisoner’s central file, the prisoner must be given the opportunity to have documentation sent directly to the drug abuse treatment staff at his prison. The prisoner can also have a physical examination at Health Services to document physical proof of a substance use disorder, such as track marks. Or, if a prisoner received substance detoxification when he was first admitted to the BOP, he can give the drug treatment staff permission to contact Health Services and verify that fact.

Could an inmate with a verifiable substance abuse problem not be allowed to participate in the RDAP?

If the BOP is able to claim that an inmate is in sustained remission, they may be able to deny the inmates eligibility for the RDAP. According to the DSM- IV, a person is in sustained remission if he or she has not used drugs during the 12 consecutive months prior to their most recent arrest. The only exception to this rule is when the inmate is in a controlled environment during that 12-month period. Controlled environment examples: closely supervised and substance-free jails, therapeutic communities, or locked hospital units. If an inmate is in a controlled environment during the 12-month period before his arrest, and does not use drugs during that 12-month period, the DSM-MD IV says that said person is not in sustained remission. BOP regulations state that eligible prisoners must be able to show that they had a substance use disorder, with supported documentation, within a 12-month period before the prisoner was arrested for their most recent offense.

What is the RDAP clinical interview?

All inmates must complete a clinical interview with the drug abuse program coordinator (DAPC). This is who will decide if the inmate is eligible to participate in the RDAP. Prisoners are only interviewed for the RDAP after the DAPC has reviewed the documentation of their substance use disorder. The interview is usually scheduled no earlier than 24 months before the prisoner’s release date.

Does every Federal prison have an RDAP program?

No. The following BOP prisons have the RDAP:

Mid-Atlantic Region: FPC-Alderson, WV; FPC-Beckley, WV; FCI-Beckley, WV; FCI- Morgantown, WV; FCI-Butner, NC; FMC-Lexington, KY; FPC-Cumberland, MD; FCI- Cumberland, MD; FCI-Petersburg Medium, VA; FCI-Petersburg Low, VA

North Central Region: FPC-Englewood, CO; FPC-Florence, CO; FCI-Florence, CO; FPC-Leavenworth, KS; FCI-Leavenworth, KS; FPC-Greenville, IL; FCI-Pekin, IL; FCI- Oxford, WI; FPC-Yankton, SD; FCI-Milan, MI; FCI-Sandstone, MN; FCI-Waseca, MN; FPC-Duluth, MN; MCFP-Springfield, MO

Northeast Region: FCI-Elkton, OH; FCI-Danbury, CT; FCI-Fairton, NJ; FCI-Fort Dix, NJ; FPC-McKean, PA; FPC-Lewisburg, PA

Southeast Region: FCI-Jesup, GA; FCI-Coleman, FL; FCI-Marianna, FL; FCI- Tallahassee, FL; FPC-Miami, FL; FPC-Pensacola, FL; FPC-Talladega, AL; FPC- Edgefield, SC; FPC-Montgomery, AL; FCI-Yazoo City, MS

South Central Region: FCI-Bastrop, TX; FPC-Beaumont, TX; FCI-Beaumont, TX; FPC-Bryan, TX; FMC-Carswell, TX; FCI-Fort Worth, TX; FCI-La Tuna, TX; FCI- Seagoville, TX; FPC-Texarkana, TX; FCI-Forrest City, AR; FPC-Forrest City, AR; FCI- El Reno, OK

Western Region: FPC-Dublin, CA; FCI-Dublin, CA; FCI-Herlong, CA; FPC-Lompoc, CA; USP-Lompoc, CA; FCI-Terminal Island, CA; FPC-Phoenix, AZ; FCI-Phoenix, AZ; FCI-Sheridan, OR; FPC-Sheridan, OR

Contract Facility: RCI Rivers, NC
This list changes occasionally, as the availability of programs expands or shrinks. Check

http://www.bop.gov/inmate_programs/substance.jsp for updates to this list.

Can an inmate participate in the rdap if they are inside a prison without the program?

Federal inmates that don’t have the RDAP program at their facility can transfer to another prison that does have the program. Prisoners classified at a higher security level than the RDAP prison allows will have to first have their security level reduced. If the BOP approves a higher-security prisoner’s application into the RDAP, prison staff will change the prisoner’s security level so the prisoner can participate at the facility that has the RDAP.

Can a person be kicked out of the RDAP or withdraw from it?

Yes. Behavior is key. Bad behavior and rule-breaking can lead to being expelled from the RDAP. Federal inmates must be given at least one formal warning or treatment intervention before they can be kicked out. However, committing a prohibited act involving drugs, alcohol, violence, threats of violence, escape, violating the confidentiality required by the program, or any 100-level series incident is grounds for immediate removal from the RDAP. Prisoners can also voluntarily withdraw from the program.

What happens after a person is kicked out of or withdraws from the RDAP?

The BOP is not required, but has the option, to transfer the inmate back to their last prison. It is up to their discretion.

Can a person reapply for the RDAP if they have been kicked out, failed, or withdrew?

After 90 days a federal inmate who was expelled or withdrew from the RDAP may reapply. The prisoner should file an Inmate Request to Staff form with the DAPC. If the prisoner is readmitted, they do not receive credit for any participation in the last RDAP program they were in.

Can a person be punished for failing to participate in the RDAP?

Yes. According to the 2009 rules of the BOP, there are penalties for non-participation if the sentencing judge recommended the RDAP and the offender didn’t volunteer for it, or if the offender participates, but withdraws or is expelled from the RDAP. Consequences may include loss of eligibility for furloughs; bonus, vacation, or enhanced performance pay; assignments to prison industries jobs; and time in a halfway house.

Who is not eligible to receive a sentence reduction for completing the RDAP?

Prisoners that meet any of the following criteria cannot receive the sentence reduction, even if they complete the RDAP:

ICE detainees (these people are also not eligible for the RDAP);
Pretrial inmates (people who have not yet been sentenced, these people are also not eligible for the RDAP)
State or military prisoners (these people are also not eligible for participation in the RDAP)
D.C. offenders who committed their crimes before August 5, 2000
Federal prisoners who committed their crimes before November 1, 1987
Prisoners with prior felonies or misdemeanors for homicide, forcible rape, robbery, arson, kidnapping, aggravated assault, or child sexual abuse offenses
Prisoners who aren’t eligible for placement in a halfway house or on home confinement
Prisoners who already received the RDAP sentence reduction for completing the RDAP
Prisoners who complete the program while serving a previous prison term (i.e., if a person was in federal prison before, completed the RDAP, and got the RDAP sentence reduction, then was released, reoffended, and returned to federal prison, the prisoner will not get the RDAP sentence reduction for completing the RDAP during their second prison term); and
D.C. Code offenders sentenced for a “crime of violence” under D.C. Code § 23-1331(4)

Prisoners currently serving time for a felony crime that involved:

The actual, attempted, or threatened use of physical force OR
Serious potential risk of physical force OR
The carrying, possession, or use of a firearm or other dangerous weapon

Crimes involving explosives (including any explosive material or explosive device)
Sexual abuse committed upon children
An attempt or conspiracy to commit any of these types of offenses

Inmates who have committed homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse

Are federal inmates who have a current conviction involving guns eligible for a sentence reduction?

Under the 2009 BOP rules, federal prisoners currently serving time for a felony that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives, including any explosive material or explosive device, are not eligible for the RDAP sentence reduction.

What current convictions will make a person ineligible for the RDAP sentence reduction?

Under 18 U.S.C. § 3621(e)(2)(B), only those convicted of a non-violent offense are eligible for the RDAP sentence reduction. The BOP’s interpretation of non-violent offenses has led to litigation and several important revisions of the RDAP rules and program statements. The BOP lists crimes of violence in BOP Program Statements # 5162.02 and # 5162.05.This data is available in prison law libraries and at http://www.bop.gov/DataSource/execute/dsPolicyLoc

Under the BOP’s revised 2009 rules, a person is not eligible for the RDAP sentence reduction if their current conviction was a felony that:

(A) Has as an element, the actual, attempted, or threatened use of physical force against the person or property of another.

(B) Involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device)

(C) By its nature or conduct, presents a serious potential risk of physical force against the person or property of another.

(D) By its nature or conduct, involves sexual abuse offenses committed upon minors.

Additionally, people convicted of an attempt or conspiracy to commit any of these types of offenses or an attempt or conspiracy to commit homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse are not eligible for the RDAP sentence reduction.

Under the 2009 rules, what kinds of current convictions will make a D.C. Code offender ineligible for the RDAP sentence reduction?

D.C. Code offenders are only eligible for the RDAP sentence reduction if they are currently serving time for a nonviolent offense committed after August 5, 2000. Violent crimes are clearly defined and listed at D.C. Code § 23-1331(4) and include aggravated assault; act of terrorism; arson; assault on a police officer (felony); assault with a dangerous weapon; assault with intent to kill, commit first degree sexual abuse, commit second degree sexual abuse, or commit child sexual abuse; assault with intent to commit any other offense; burglary; carjacking; armed carjacking; child sexual abuse; cruelty to children in the first degree; extortion or blackmail accompanied by threats of violence; gang recruitment, participation, or retention by the use or threatened use of force, coercion, or intimidation; kidnapping; malicious disfigurement; manslaughter; manufacture or possession of a weapon of mass destruction; mayhem; murder; robbery; sexual abuse in the first, second, or third degrees; use, dissemination, or detonation of a weapon of mass destruction; or an attempt or conspiracy to commit any of the foregoing offenses.

According to the updated 2009 rules, what types of prior convictions will make a person ineligible for the RDAP sentence reduction?

The BOP’s 2009 updated rules, state that prisoners with prior felony or misdemeanor convictions for homicide, forcible rape, robbery, arson, kidnapping, aggravated assault, or child sexual abuse offenses cannot receive the RDAP sentence reduction. This list of crimes is the same as the list of crimes covered by the FBI’s Uniform Crime Reporting Program (UCR), a list generally considered to include crimes that are violent in nature.

Pre-2009 Rules Previously, the BOP selectively refused to give the RDAP sentence reduction to those convicted of a crime of violence. The BOP interpreted crimes of violence to include the following gun crimes:

ï 18 U.S.C. § 922(a)(4), (a)(7), (a)(8), (b)(4), (b)(5), (d)(1), (d)(2), (d)(4),(d)(8),(o), or (p) (or conspiracy to commit a violation of one of these sections)—various firearm violations, including illegal sales, deliveries and possession.

ï 18 U.S.C. § 924(c) (or conspiracy to commit a § 924(c) crime)—the use or carrying of a firearm during and in relation to any crime of violence or drug trafficking crime

ï 21 U.S.C. §§ 841 or 846 drug crimes, when paired with a 2-point gun enhancement.

Including the above listed gun crimes into the definition of a crime of violence formed a catalyst for litigation, and the results of the litigation formed a divide in the circuit courts.

In 1997, the BOP abandoned the crime of violence standard and issued a temporary rule that categorically denied the RDAP sentence reduction to anyone whose current offense is a felony involving the carrying of, possession, or use of a firearm or other dangerous weapon or explosives. That temporary rule became permanent in 2000. It made anyone convicted under 18 U.S.C. §§ 922, 924, or 21 U.S.C. §§ 841 or 846 (with a two-point gun enhancement) ineligible for the RDAP sentence reduction. Eight circuits disagreed about whether the BOP could exclude all of these prisoners. Below are two particular cases that may help your case.

Paulsen

In Paulsen v. Daniels, 413 F.3d 999, 1004-05 (9th Cir. 2005), the Ninth Circuit found that the BOP’s 1997 temporary rule had not been created properly under the Administrative Procedures Act (APA). Paulsen invalidated the 1997 temporary rule, but not the permanent rule issued by the BOP in 2000. Thus, even after Paulsen, most of those convicted for crimes involving a gun have still been unable to receive the RDAP sentence reduction.

Arrington

In 2008, the Ninth Circuit decided Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008). Arrington picked up where Paulsen had left off and invalidated the BOP’s 2000 rule. Under the APA, when government agencies like the BOP create rules, they have to show, on the record, that they had adequate, rational reasons for creating the rule the way they did. If the agency doesn’t support its rules with good reasons, the rule is “arbitrary and capricious” and can be struck down. The BOP’s administrative record behind its 2000 rule didn’t provide a clear and rational basis for denying the RDAP sentence reduction to all gun offenders. This made the BOP’s 2000 rule “arbitrary and capricious,” so the court struck the rule down.

I’m incarcerated in the Ninth Circuit. What do Paulsen and Arrington do to help me?

Paulsen and Arrington are only binding in the Ninth Circuit (Arizona, California, Idaho, Montana, Nevada, Oregon, or Washington).

Paulsen gives a remedy to inmates in the Ninth Circuit who have been denied the one-year reduction if they:

ï Completed the RDAP between Oct. 9, 1997, and Dec. 22, 2000

ï Were denied the RDAP sentence reduction because their current offense is for violations

of 18 U.S.C. § 922 or 21 U.S.C. §§ 841, 843, or 846 and involved a gun

ï Are not in the Fourth or Fifth Circuit (these circuits still uphold the BOP’s decision to

categorically exclude gun possessors from eligibility for the RDAP sentence reduction

ï Are not otherwise ineligible for the RDAP sentence reduction (i.e., no prior violent crimes).

Arrington gives a remedy to inmates in the Ninth Circuit who have been denied the one-year reduction if they:

ï Have completed the RDAP

ï Were denied the RDAP sentence reduction because their current offense is for violations

of 18 U.S.C. § 922 or 21 U.S.C. §§ 841, 843, or 846 and involved a gun,

ï Are not otherwise ineligible for the RDAP sentence reduction (i.e., no prior violent

crimes), and

ï Applied to the RDAP before March 16, 2009, when the new BOP rules went into effect.

If you fit into either of the lists above, you should file an “Administrative Remedies Request” or “COP-OUT” form to seek an earlier release date. If your request is denied, you can appeal it. When all your appeals within the BOP are denied, you can file a lawsuit in federal district court in the district where you are incarcerated. We are not attorneys. All options should always be discussed with your lawyer first.

I’m not incarcerated in the Ninth Circuit. What do Paulsen and Arrington do for me?

Paulsen and Arrington affect inmates in the Ninth Circuit only (Arizona, California, Idaho, Montana, Nevada, Oregon, or Washington). Federal inmates should talk to a lawyer about the law that applies to them, in the circuit where they are incarcerated.

According to the updated 2009 rules, what types of prior convictions will make a person ineligible for the RDAP sentence reduction?

Federal inmates with prior felony or misdemeanor convictions for homicide, forcible rape, robbery, arson, kidnapping, aggravated assault, or child sexual abuse offenses cannot receive the RDAP sentence reduction. This list of crimes is the same as the list of crimes covered by the FBI’s Uniform Crime Reporting Program (UCR), a list generally considered to include crimes that are violent in nature.

How much of a sentence reduction a federal inmate gets for completing the RDAP and what is the process to determine said reduction?

STEP 1. The Drug Abuse Program Coordinator (DAPC) determines if a federal inmate qualifies to participate in the RDAP and if they are eligible for the sentence reduction.

➢If the federal inmate is not eligible, they will sign a Notice of RDAP Qualification form (BP-A0941) that goes into his central file. PROCESS ENDS.

➢If the federal inmate is eligible, the DAPC forwards a Request for § 3621(e) Offense Review form and the prisoner’s judgment and commitment and presentence investigation report to the Designation and Sentence Computation Center (DSCC). GO TO STEP 2.

STEP 2. The DSCC’s legal staff will review the inmates information and decide, within 30 days, if the federal inmate is eligible for a sentence reduction.

If the prisoner is eligible,

➢ Their attorney signs the Request for § 3621(e) Offense Review form and returns it to the DAPC

➢The DAPC notes in SENTRY that the inmate is eligible for early release

➢The federal inmate signs the Notice of RDAP Qualification form, which goes to the unit team

➢The prisoner must notify the DAPC whether he plans to decline or participate in the RDAP. This decision is noted in SENTRY, and within 15 days of entering the RDAP, the DAPC sends a Notice of § 3621(e)

Date form (BP-A0764) to the DSCC, the unit team, and the Correctional Systems Department. Within 15 days of receiving that form, DSCC must calculate a new release date for the prisoner and enter it in SENTRY.

If the prisoner is not eligible,

➢A DSCC attorney signs the Request for § 3621(e) Offense Review form and returns it to the DAPC

➢The DAPC notes in SENTRY that the prisoner is not eligible for early release

➢The prisoner signs the Notice of RDAP Qualification form, which goes to the unit team.

What is the average sentence reduction Federal inmates receive for completing the RDAP?

The BOP limits sentence reductions based on the length of the sentence imposed by the court, the average sentence reduction RDAP completers receive is 8 months. The average reduction time is the result of the long wait to enter an RDAP. Meaning that by the time the prisoner enters and completes the program, he will usually already have less than a year left to serve on his sentence.

Is the RDAP the only drug treatment available to federal prisoners?

There are other, non-residential programs available. The RDAP, is the only program with sentence reductions, and have to be relocated to another part of the prison to participate.

The drug abuse education course is provided at all prisons—it is required for some prisoners, but is also open to voluntary participants. Voluntary participants must be approved by the DAPC, and priority is given to prisoners recommended for the program by unit or treatment staff. Fill out form BP-A550 to apply for the course, available at http://www.bop.gov/DataSource/execute/dsFormLoc. This course is usually taken within the first year of a person’s sentence.

The non-residential drug abuse treatment program is a voluntary 12 to 24-week program provided at all prisons and involves individual and group counseling.

Other programs such as Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and Rational Recovery (RR) may be offered as part of a prison’s drug programs. These programs won’t necessarily be at every prison, and they are non-residential.

1 Previously, the BOP had excluded people from the RDAP for being in “sustained remission” based on the date the person was incarcerated, not the date the person was arrested. This led to a court split. Dating “sustained remission” from the date of incarceration becomes problematic whenever a person is arrested, is released pending trial, and is required by a court order to stay sober during that time. If the person obeyed the court and stayed clean for at least a year before going to prison, some courts held that the BOP could later use this sobriety as a reason for preventing that person from enrolling in the RDAP. See Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600 (N.D.W.Va. 2007); Laws v. Barron, 348 F.Supp.2d 795 (E.D.Ky. 2004); Rosenfeld v. Samuels, 2008 WL 819630 (D.N.J. Mar. 26, 2008) (unpublished op.); Wells v. Rivera, 2007 WL 4219002 (N.D.Fl. Nov. 28, 2007) (unpublished op.); Rea v. Sniezek, 2007 WL 427038 (N.D.Ohio Feb. 2, 2007) (unpublished op.); Shew v. FCI Beckley, 2006 WL 3456691 (S.D.W.Va. Sept. 19, 2006) (unpublished op.); Montilla v. Nash, 2006 WL 1806414 (D.N.J. June 28, 2006) (unpublished op.); Goren v. Apker, 2006 WL 1062904 (S.D.N.Y. Apr. 20, 2006) (unpublished op.). Other courts ruled that, in these circumstances, the BOP could not bar a person from the RDAP, particularly because past versions of the BOP’s own regulations and program statements regarding RDAP eligibility did not explicitly list “sustained remission” as a ground for excluding someone from the RDAP. See Salvador-Orta v. Daniels, 531 F.Supp.2d 1249 (D.Or. 2008); see also Smith v. Vazquez, 491 F.Supp.2d 1165, 1167 (S.D.Ga. 2007); Mitchell v. Andrews, 235 F.Supp.2d 1085 (E.D.Cal. 2001). FAMM does not know how courts will rule on sustained remission now that the BOP has mentioned it explicitly in the new rules that went into effect on March 16, 2009. Now that the BOP measures sustained remission from the date of arrest, not the date a person goes to prison, fewer people may be excluded from the RDAP because they are found to be in sustained remission. Prisoners who are concerned about RDAP eligibility because of the sustained remission issue should speak with their attorneys.

2 A “crime of violence” is a felony that (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(C) (2012).

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LEGAL DISCLAIMER

Dan Wise and Federal Prison Time Consulting,LLC cannot provide legal advice, representation, referrals, or guidance to those who need legal help. Nothing on this page is intended to be legal advice or should be relied on as legal advice. Finally, BOP rules and case law change frequently. If you or your loved one feels that you need legal advice, you should consult with an attorney or a law library.