Saturday, February 23, 2008

Case o' The Week: Ninth Knocks BOP Rule Denying Year Break for 922(g) RDAP Grads, Arrington

Public Defender Hero and fellow blogger Stephen Sady earns a big victory against the BOP, when the Ninth rejects a rule that denies the one-year reduction for § 922(g) inmates (and others) who successfully complete the 500-hour residential drug treatment program (RDAP). Arrington v. Daniels, __ F.3d __, 2008 WL 441835 (9th Cir. Feb. 20, 2008), decision available here.

Players: Another victory for tireless inmate rights advocate, Chief Deputy Defender Steve Sady, Portland Oregon.

Facts: In 1990, Congress created a drug treatment program in federal prisons (the “Residential Drug Abuse Program,” or “RDAP”). Id. at *1. In ‘94, Congress gave a one-year off incentive for inmates convicted of “nonviolent offenses” who successfully completed the program. Id. The BOP designated § 922(g) [felon-in-possession] cases as violent offenses ineligible for the year-off. Over a decade of litigation followed, the rule was struck by the Ninth, circuit splits developed, and the Supreme Court waded in. Id. at *1-*2.

Ultimately, in 2000 the BOP promulgated a “final rule” and “exercised its discretion” to exclude § 922(g) inmates from the one-year reduction. Id. at *3. Eighteen prisoners filed habeas petitions.

Issue(s): “The question presented is whether the Bureau of Prisons violated . . . the Administrative Procedure Act (“APA”) when it promulgated this regulation.” Id. at *1.

Held: “[T]he Bureau failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction . . . . This failure renders the Bureau’s final rule invalid under the APA.” Id. at *6.

Of Note: This decision comes from an interesting panel – Judge Reinhardt authored, and Judges Hall and Milan Smith joined. The decision is based purely on the procedural failure of the BOP to articulate the reasons for its decision; Reinhardt is very careful to avoid the substantive merits of the rule itself (a rule that has previously been upheld by the Ninth and Supremes). Id. at *6-*7. It would be nice if the BOP finally threw in the towel. If they don’t, Sady will take them on (again).

How to Use: I spoke to a surprisingly helpful BOP legal counsel the day after the decision. He suggested that inmates who completed RDAP and who had been denied the reduction immediately file an “Administrative Remedies Request” or “COP-OUT” form to seek an earlier release date. Note that the rule affects more than § 922(g) cases – it also barred the reduction for drug defendants who got the two-level guideline gun bump, and some other substantive offenses as well.

Many defense counsel have not pushed § 922(g) clients to discuss drug addiction in PSR interviews, or sought RDAP referrals from the sentencing judge, because few inmates will complete the (challenging) program without the one-year incentive. Why invite a drug testing/treatment condition on supervised release, if RDAP wasn’t a real option? Arrington changes this strategy – at least for now. A year-off the custodial sentence is a huge incentive, and, as an added bonus, our clients benefit from treatment for the addictions that made them our clients in the first place.

Remember – it is much harder to get into the program without documentation of addiction in the PSR and a RDAP recommendation from the sentencing judge reflected in the order of judgment and commitment.

For Further Reading: Alan Ellis has a helpful description of RDAP here. The BOP’s rap on RDAP is here. There’s a useful “informal” description of the program here.

For the masterpiece on defense challenges to conditions and the length of federal confinement, visit Sady’s “Update on BOP Issues,” available here.

Finally, for a revealing – if slightly cynical – description of the RDAP program from a former federal inmate (including a description of a RDAP unit built next to a bar) visit Bill Bailey’s blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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