The Residential Drug Abuse Program (RDAP): An Overlooked 18 Month Sentence Reduction

Defendants seeking to reduce their federal sentences rely on their attorneys to make legal arguments pursuant to traditional methods; oftentimes, however, only the best New York federal criminal lawyers are well-versed in another avenue which can reduce a sentence by 12 months and garner a full six months of halfway house: the Bureau of Prisons’ Residential Drug Abuse Program or RDAP for short, passed into law by 18 U.S.C. § 3621.  Since 12 months off is 12 months off no matter how you couch it, shouldn’t you ensure that you receive such a reduction if eligible – especially if your sentencing judge is not inclined to give you any kind of break otherwise?

What is RDAP?

When the Federal Sentencing Guidelines became advisory instead of mandatory in 2005, defendants have based requests for lower sentences upon not only traditional downward departure motions and departures due to cooperation with the government (§5K1.1 motions) but also requests for downward variances from their Guidelines ranges due to the factors contained within 18 U.S.C. § 3553(a), the sentencing statute.  RDAP on the other hand, is not reliant on the sentencing judge; if an inmate has a diagnosable substance abuse/alcohol problem within 12 months of arrest or indictment, whichever is earlier, and does not have a violent criminal past, he is eligible for the voluntary, 9-12 months, 500 hour program which includes daily group therapy.  Inmates ordinarily require at least 24 months until release date to be eligible for RDAP (or a sentence of 27 months imprisonment).

While the sentencing judge’s recommendation for the RDAP program is just that, a recommendation, the verifiable substance abuse problem is established in large part by the information contained within the Presentence Report including material from medical or mental health professionals, substance abuse treatment providers, probation or parole officers, or social workers.  Therefore, the planning for making a request for RDAP placement cannot begin at sentencing: the groundwork obviously needs to be laid much earlier.  At their designated institution, eligible RDAP inmates will also be interviewed by the Drug Abuse Program Coordinator.  Should inmates have the verifiable substance abuse problem within the appropriate time period and possess the mental ability to complete the program, they will be admitted with those inmates closest to their release date getting priority placement.

A 37 Month Sentence Which Includes RDAP is better than a 35 Month RDAP Sentence

Now here is the tricky part: inmates who receive a sentence of 30 months or less are only eligible for six months of a sentencing reduction upon completing RDAP; inmates whose sentences are 31-36 months are eligible for nine months reduction.  RDAP inmates who are sentenced to 37 months or more can receive 12 months off their sentences.  Therefore, an inmate who receives a 37 month sentence and completes RDAP actually has a lesser sentence than an equally RDAP-eligible inmate who was sentenced to 35-36 months in prison.  Of course, a defendant who receives a 37 month sentence with RDAP should serve less time in prison than an inmate who is sentenced to 20 months in prison, without the benefit of RDAP.

Upon completion of the 500 hour RDAP program, inmates are moved to a “Residential Reentry Center” or halfway house, to complete the final six months of their sentences.  Bureau of Prisons Program Statement 5330.11, chapter 2.7.2. Therefore, a defendant who receives a 37 month sentence could conceivably spend just 13.5 months in prison until release to a halfway house, should he receive quick admission into RDAP and complete it.

RDAP Can Take Away the Bite of Irrational Judges And Sentences 

A recent anecdote: a client convicted of stealing about $2 million from his employer was being lambasted at sentencing by the judge for his criminal behavior.  Our sentencing submission (and Presentence Report) in this high profile case was filled with mentions of his rampant alcoholism right up until the day of arrest.  Included in our submission was a report from his therapist which detailed her diagnosis of alcoholism and his treatment which included weekly counseling sessions and attendance at Alcoholics Anonymous meetings.  By the end of the sentencing, it had become very clear that the judge was looking to mete out a serious punishment, as she clearly rejected any excuse which included his decade of alcoholism – and the defendant’s long history of philanthropy and charity to those less fortunate than him.  With a Guidelines range of 37-45 months, the judge did just that, giving our client a 37 month sentence.  Upon our request for a recommendation for RDAP, the judge was unaware that inmates suffering from alcoholism were even eligible for it, let alone that her 37 month sentence was the equivalent of a 34 month RDAP sentence.  Begrudgingly she gave him the RDAP recommendation and, at the end of the day, our client will spend just over a year in prison, the judge’s mean-spirited attempts to punish him gone awry due to our preparation.

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series, New York Magazine and Ozy. He can be reached at (212) 581-1001.