Reprinted from Forbes Magazine
December 22, 2008 Issue
by Kai Falkenberg
Inmates Receive Early Prison Relief Using RDAP Program
Feb. 9 will be a big day for Samuel Waksal, the former chief executive officer of biotech firm Imclone. That’s when he’ll be released from federal custody after serving five years, six months and two weeks for insider trading, 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. 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 just one of many white-collar inmates who have discovered the Bureau of Prison’s 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 much. 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 presentencing report.”
For a fee up to $5,000 Levine advises clients on 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 postconviction 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 run the treatment program at the federal prison in Sheridan, Ore., says he once had to talk an offender out of having his mother, who worked in a doctor’s office, swipe the letterhead for phony treatment notes. Ellis and Lasky say they don’t help candidates game the system.
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 the bureau’s wide discretion on what constitutes substance abuse leads to arbitrary decisions.
During the trial of Enron hoodlum Jeffrey Skilling, former Enron treasurer Ben F. Glisan Jr. joked from the witness stand about getting early release for a rehab stint despite only being a “social drinker.” Mocking Glisan’s two-drink-a-night dependency, Skilling’s attorney snickered, “If you’ve 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 John Martin, a former New York federal district judge: “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.”
Washington, D.C., criminal defense lawyer Barry Boss, who denies any widespread abuse of the program, says: “When a 50-year-old first offender receives a 10-year prison sentence for an economic crime, I find it hard to accept that people are offended that the person may receive a year off for participation in a rigorous substance abuse program.”
To be sure, there is some good that comes of the treatment program, 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.