Time Off For Bad Behavior - Forbes

White-collar crooks in the U.S. use rehab to shorten their jail time.

Kai Falkenberg
Forbes Magazine  January 12, 2009

Feb. 9 will be a big day for Samuel Waksal, the former chief executive officer of biotech firm ImClone. That day he'll be released from federal custody after serving five years, six months, two weeks for insider trading. This is nine months less than his original sentence. Why the shorter time? He was rewarded for participating in a prison rehab program for substance abusers.

Except he's not a substance abuser--or at least he wasn't until a few months before his sentencing. Waksal told a probation officer during his pre-sentence interview that he was just a "social drinker" and drank "about five glasses of wine per week." At his plea hearing Waksal advised the judge under oath that he'd never been treated for drug or alcohol addiction. But a month later Waksal's lawyers told the feds he had recently developed a "dependence on alcohol" and would benefit from treatment for his newly acquired addiction. How convenient, given that the rehab program is the main way white-collar offenders get time off their sentences. Waksal declined comment on grounds it was a private matter.

Waksal is one of many white-collar inmates who have discovered the great joys of the U.S. Bureau of Prisons' Residential Drug Abuse Program. Treatment for federal inmates who abuse drugs (that word defined to include ethyl alcohol) has been around since 1919. But inmates weren't clamoring for rehab programs until Congress passed a law in 1994 offering up to 12 months off a sentence for nonviolent offenders who complete a counseling program. That year only 3,755 inmates were in the rehab program. In 2008 there were 18,000 prisoners in it, with a wait list topping 7,000.

For offenders with lengthy sentences, 12 months may not matter greatly. But for white-collar criminals like class action lawyer William Lerach, serving time in a kickback scheme, it can halve a sentence. Unfortunately for Lerach, in June a judge denied his request for the program, ruling that he didn't appear to have an alcohol problem requiring intensive treatment.

The drug abuse program is so attractive it has cultivated a cottage industry of consultants who advise convicts and their lawyers on how to get in. Among them is Larry J. Levine, who started American Prison Consultants after serving nine years for drug-related charges. Levine's Web site boasts that by taking advantage of "obscure" prison policies he can help prospective prisoners "receive extra time off their sentence even with no evidence of drug or alcohol abuse in their [pre-sentence] report." For a fee of up to $5,000 Levine advises clients how to get into the program and how to maximize the resulting sentence reduction. For example, he suggests that clients show up drunk on the day they surrender so that they get interviewed about their substance abuse problem right away. "BOP is looking for reasons to put people into the program," he says.

Alan Ellis, a San Francisco attorney who specializes in post-conviction issues, says at most half of those seeking advice on how to get into the nifty sentence-cutting program have genuine substance abuse problems. Another consultant, Gareth Lasky, who used to be coordinator of the treatment program for the federal prison in Sheridan, Oregon, says he once had to talk an offender out of having his mother, who worked in a doctor's office, swipe letterhead for phony treatment notes. Ellis and Lasky say they don't help candidates game the system.

Former Atlanta mayor Bill C. Campbell was convicted of tax evasion in March 2006 and received a 30-month sentence. He told a probation officer he doesn't like the taste of alcohol and drinks only when giving a toast. Campbell's lawyer even argued to the judge at sentencing that imprisonment wasn't necessary because Campbell had "no health or substance abuse problems" and thus was "not in need of the already thinly spread services offered by the correctional system."

Nonetheless, Campbell applied to the program, claiming to be a longtime alcoholic. He got notes from two doctors who purportedly treated him for alcohol abuse. Curiously, one was a cardiologist and the other an anesthesiologist. The anesthesiologist, a college classmate of Campbell's, submitted a handwritten note saying that he had observed the mayor drinking at a dinner hosted at the doctor's home. The regional coordinator found the letter "disturbing" and deemed Campbell ineligible for the program. He was overruled by national program coordinator Beth A. Weinman, who said that Campbell met the criteria for admission.

Campbell was already in a halfway house on his way to being released four months early when the feds discovered his lie and had him sent back to prison.

To be eligible for the treatment program an inmate must have a documented drug abuse problem. The Bureau of Prisons says it has rigid eligibility criteria designed to keep out fakers. But many criminal defense lawyers, like Gerald Lefcourt, complain that the bureau's wide discretion on what constitutes substance abuse leads to arbitrary decisions.

During the trial of Enron's Jeffrey Skilling, former Enron treasurer Ben F. Glisan Jr. joked from the witness stand about getting early release for a rehab stint despite being only a "social drinker." Mocking Glisan's two-drink-a-night dependency, Skilling's attorney snickered, "If you got a drinking problem, then I'm in serious trouble." To which Glisan rejoined, "Well, you'll get a year off." In his 2007 memoir, Cooked, drug-dealer-turned-celebrity-chef Jeff Henderson admits to scheming his way into the program. Henderson writes that he got admitted to the program in Sheridan even though he "never used drugs and hadn't even been around any since [he] stopped selling them."

Some judges may tolerate overstretched abuse claims as a means to lessen unduly harsh sentences required under sentencing guidelines. Says former New York federal district judge John Martin: "A lot of judges feel, if a person is sentenced too long anyway, why not help him get any relief possible to get out earlier."

There is some good that comes of the treatment program. It's no joke. It's an intense 500 hours of cognitive behavioral treatment over a nine-month period, during which participants are housed in a dorm like unit set apart from the general population. The Bureau of Prisons cites a 2000 study finding that male inmates who participate are 16% less likely to commit another crime and 15% less likely to relapse to drug use. The 2009 Criminal Justice Transition Coalition, a group of organizations advocating criminal justice reform, is asking President-elect Barack Obama to expand the program to yet more inmates. Even Sam Waksal might drink to that.

Reader Comments

In order to qualify for the time cut provided by RDAP, federal prisoners must not have a history of violence. The only other qualification is that RDAP participants show a documented history of substance abuse or dependency.

http://www.forbes.com