(Congressman) Jim Black and the RDAP Program

Saturday, July 21, 2007

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 sentenced 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. 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 alcoholism 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 weed eater.)

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.

http://www.alanellis.com/CM/Publications/reducing-recidivism.pdf

http://www.bop.gov/inmate_programs/substanceabuse_faqs.jsp

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, 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.)

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 alcohol 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.

LEGAL DOCUMENT ARCHIVE

As a coping mechanism, I found that by mentally stepping "outside" of myself, and looking at my own prosecution from the perspective of an observer of the process rather than a participant -- let alone the subject (or is it object?) -- it was easier to deal with... in fact, it even became a form of entertainment, a drama in which I not only had a front row seat but a backstage pass as well.

I simply chose as much as I could to stay "in the moment" and experience all that was happening to me rather than morbidly contemplate where the process was taking me. I knew the government was intent on punishing me severely; I was determined that I would not allow the process to become a form of pre-punishment that can in some ways be worse than the final outcome if you let it get to you.

To that end, I made a point of documenting the process (similar to the way I intend to record my prison experience). Like a play with many acts, there were several distinct stages to this process, each of which had its own "drama."

First, the search warrant and affidavit authorizing the FBI raid on my home on July 21, 2005.

Second, the Rule 41(g) challenge on September 6, 2005 requesting the return of my computers and limits placed on the government's search of my computers if they were allowed to keep images of the hard drives.

Third, my indictment on June 15, 2006.

Fourth, my arraignment and bail conditions on June 29, 2006 followed by the government's appeal of those bail conditions on July 11, 2006.

Fifth, acceptance of a plea offer and entry of my guilty plea on October 13, 2006.

Sixth, pre-sentence interview on November 21, 2006 followed by issuance of the pre-sentence report (PSR).

Seventh, sentencing on February 13, 2007.

Eighth, report to prison on March 30, 2007 with tentative release date of June 29, 2007.