New York Federal Criminal Practice Blog
June 24, 2009

New Changes To BOP’s RDAP Policies

The only BOP program that permits a reduction of an inmate’s sentence beyond the 15% permissible for good time is the residential drug abuse program, RDAP, which needless to say, is oversubscribed and highly coveted.  BOP has updated the policy statements relevant to its various drug treatment programs, making several key changes to RDAP, including new rules on the documentation required for eligibility, the BOP’s authority to place an inmate in RDAP facilities without regard to the inmate’s home, and graduated sentence reduction incentives.  These changes are outlined in a memo prepared by Alan Ellis.  It includes the following key paragraph:
Early release under the provisions of 18 U.S.C. 3621 (e) for successful completion of RDAP remains an incentive as well, but has been significantly changed by P.S. 5331-02.  Whereas offenders who previously completed RDAP and were otherwise eligible for early release were eligible for a sentence reduction of up to 12 months, this new policy substantially reduces the eligibility timeframe for some offenders.  Specifically, only those eligible inmates serving 37 months or more will now be eligible for up to a 12 month early release, while those serving 31-36 months will be eligible for only up to a 9 month sentence reduction, and those serving less than 31 months will be eligible for no more than a 6 month sentence reduction.  The authority in determining some eligibility factors for early release, for example whether prior offenses or the current offense might preclude early release, is now shifted from the B.O.P. institutions and Regional Offices to the Designation and Sentence Computation Center (DSCC) in Texas.  Noteworthy, for the first time, is that certain sex offenders, e.g., possessors of child pornography are not automatically disqualified from early release eligibility.  See also P.S. 5162.05 (Categorization of Offenses).
No doubt there will be challenges to this policy, but they will have an uphill battle.  See Lopez v. Davis, 531 U.S. 230, 244-45 (2001) (“even if a statutory scheme requires individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority”). 

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