On August 10, 2011, Steven Standifer received bad news. He was not going to be permitted to participate in the Bureau of Prisons’ Residential Drug Abuse Program [RDAP]. A panel of the United States Court of Appeals for the Tenth Circuit [Circuit Judges O’Brein, McKay, and Tymkovich] sent that message to him. Standifer v. Ledzema, ___ F.3d___, 2011 WL 3487074 (10th Cir. 2011).
What makes this case interesting to me is that it hightlights the form-over-substance approach that the Bureau of Prisons follows in determining who is eligible to participate in this program. An inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his federal arrest. That is the hurdle every inmate has to clear when applying. It is an exclusive rather than an inclusive program.
What is ironic is that the Bureau of Prisons touts the success of its substance abuse treatment program in general and of the Residential Drug Abuse Program in particular:
Drug treatment studies for in-prison populations have found that when programs are well-designed using effective program elements and implemented carefully, these programs:
- reduce relapse,
- reduce criminality,
- reduce recidivism,
- reduce inmate misconduct,
- reduce mental illness,
- reduce behavioral disorders,
- increase the level of the inmate’s stake in societal norms,
- increase levels of education and employment upon return to the community,
- improve health and mental health symptoms and conditions, and
- improve relationships.
Collectively, these outcomes represent enormous safety and economic benefits to the public [emphasis added].
RDAP is the Bureau’s most intensive treatment program. It too follows the CBT (cognitive behavioral therapy) model of treatment wrapped into a modified therapeutic community model in which inmates learn what it is like living in a pro-social community. Inmates live in a unit separate from general population, participate in half-day programming and half-day work, school, or vocational activities. RDAP is typically nine months in duration. The Bureau and National Institute on Drug Abuse combined funding and expertise to conduct a rigorous analysis of the Bureau’s RDAP. Research findings demonstrated that RDAP participants are significantly less likely to recidivate and less likely to relapse to drug use than non-participants. The studies also suggest that the Bureau’s RDAPs make a significant difference in the lives of inmates following their release from custody and return to the community [emphasis added] (www.bop.gov/inmate_programs/substance.jsp).
And now back to Standifer. Judge Tymkovich authored the opinion of the Court which includes the following:
Steve Standifer, a federal prisoner proceeding pro se, challenges a Bureau of Prisons’ (BOP’s) regulation that denies him eligibility to participate in its Residential Drug Abuse Program (RDAP). He is ineligible for the program because his last-reported date of drug use was more than three years before his arrest on federal charges. Standifer contends the BOP’s policy requiring that it consider only his substance-abuse history for the 12 months preceding his arrest is based on an unreasonable interpretation of authorizing statutes. This claim fails because the BOP’s eligibility requirement is based on a reasonable interpretation of the governing provisions, 18 U.S.C. §§ 3621(b) and (e)(1). Standifer’s assertion that the BOP was deliberately indifferent to his medical needs is similarly unavailing.
In 2005, Standifer was imprisoned in Oklahoma state prison for distributing and cultivating marijuana. Almost two years later, while serving this sentence, Standifer was indicted on federal charges for possessing marijuana with intent to distribute, in violation of 21 U.S.C. §841(a)(1). He pleaded guilty and was sentenced to 60 months’ imprisonment in a federal penitentiary. He is currently serving his federal sentence.
While in federal prison, Standifer sought admission to RDAP, the BOP’s residential drug-treatment program. The BOP found, however, that Standifer did not meet the RDAP enrollment criteria because he did not have a documented incident of drug abuse within a 12-month period preceding his arrest. See BOP Program Statement 5330.11 § 2.5.8(d)(2). Standifer concedes he last used drugs in January 2004—more than three years before his arrest on federal charges (and more than a year before his arrest on state charges).
[The Proceeding Is in the District Court]
In May 2010, Standifer filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing the 12-month-period eligibility criterion exceeded the BOP’s statutory authority, under 5 U.S.C. § 706(2)(C) of the Administrative Procedure Act (APA). The district court referred the matter to a magistrate judge, who issued a well reasoned Report and Recommendation concluding Standifer’s claims lacked merit. For substantially the same reasons as set forth in the Report and Recommendation, the district court dismissed Standifer’s petition and granted the BOP’s motion for summary judgment.
[The History and Requirements of RDAP]
RDAP spawned from 18 U.S.C. § 3621(b), which directed the BOP to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Under BOP regulations, to be eligible for RDAP, an inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his arrest. 28 C.F.R. § 550.53(b)(1) (explaining that “a verifiable substance abuse disorder” is a prerequisite to enrollment in RDAP); BOP Program Statement 5330.11 § 2.5.8(d)(2) (BOP may verify an inmate’s substance abuse disorder by consulting “[d]ocumentation to support a substance use disorder within the 12-month period before the inmate’s arrest on his or her current offense”). The BOP has discretion to grant early release of up to one year to inmates who successfully complete RDAP. § 3621(e)(2)(B). Because the BOP’s 12-month-window requirement is codified in a program statement rather than formal regulation, we must give the language “some deference” if it involves a “permissible construction of the statute.” Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (quotation omitted) [emphasis added].
[Standifer’s Position and the Court’s Reply]
Standifer concedes he did not have a verifiable substance abuse disorder within one year of his arrest. He told the district court that in 2003, he “stopped using all substances on his own volition,” and that after a January 2004 relapse, he successfully completed an Oklahoma Department of Corrections rehabilitation program. Standifer has been drug free ever since. Given these facts, Standifer does not dispute he was ineligible for RDAP under BOP regulations. Rather, he argues the BOP exceeded statutory authority, under the APA, when it conditioned participation in RDAP on an inmate having a documented drug-abuse problem within 12 months of his arrest. This argument is unavailing.
[The Eligibility Requirements]
The BOP’s 12-month-period eligibility requirement for participation in RDAP accords with authorizing statutes. Pursuant to statute, RDAP is open only to prisoners who “have a substance abuse problem.” § 3621(e)(5)(B) [emphasis added]. The word “have” is in the present tense; the statute does not require the BOP to offer any treatment for inmates who suffered from drug abuse in the past. See United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). This language reflects Congress’ intention that RDAP be made available only to prisoners with current drug-abuse problems. Accordingly, the BOP’s interpretation—which limits RDAP to inmates with current or recent drug-abuse problems—is reasonable, infringes no constitutional right, and merits deference. See, e.g., Mora-Meraz v. Thomas, 601 F.3d 933, 942–43 (9th Cir.2010) (holding the BOP’s 12-month eligibility requirement was a reasonable interpretation of the statute); Laws v. Barron, 348 F.Supp.2d 795, 805–06 (E.D.Ky.2004) (“[C]ommon sense would dictate that entry into [RDAP] would be restricted to those prisoners having a recent history of abuse, rather than one who can demonstrate that he had a substance abuse problem 4 to 9 years prior to arrest and 7 to 12 years prior to incarceration.”)
[The Court’s Conclusion]
Because the BOP’s 12-month-period eligibility requirement is a reasonable implementation of Congress’s mandate, we defer to the BOP’s rule and deny Standifer’s claim.
Yes, there is another benefit to successfully completing the RDAP that, I’m certain, has more appeal to the average inmate than the treatment component. BOP can reduce the inmate’s sentence by up to one year and every inmate knows that.
The lesson from Standifer is that a lawyer must make certain that the PSR documents a verifiable drug abuse problem within a 12-month period proceeding his or her client’s federal arrest—if that is possible. Otherwise, the client has no possibility of entering the RDAP.