[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Rules and Regulations]
[Pages 24484-24490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09613]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 550
[BOP-1168-F]
RIN 1120-AB68
Drug Abuse Treatment Program
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises the
Residential Drug Abuse Treatment Program (RDAP) regulations to allow
greater inmate participation in the program and positively impact
recidivism rates.
DATES: This rule is effective on May 26, 2016.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 353-8248.
SUPPLEMENTARY INFORMATION: In this document, the Bureau revises the
Residential Drug Abuse Treatment Program (RDAP) regulations to allow
greater inmate participation in the
[[Page 24485]]
program and positively impact recidivism rates. Specifically, the
Bureau (1) removes the regulatory requirement for RDAP written testing
because it is more appropriate to assess an inmate's progress through
clinical evaluation of behavior change (the written test is no longer
used in practice); (2) removes existing regulatory provisions which
automatically expel inmates who have committed certain acts (e.g.,
abuse of drugs or alcohol, violence, attempted escape); (3) limits the
time frame for review of prior offenses for early release eligibility
purposes to ten years before the date of federal imprisonment; and (4)
lessens restrictions relating to early release eligibility.
The proposed rule was published on July 22, 2015, (80 FR 43367).
The comment period ended on September 21, 2015. In the proposed rule,
we described the following changes:
Section 550.50 Purpose and scope. The regulation previously stated
that Bureau facilities have drug abuse treatment specialists who are
supervised by a Coordinator and that facilities with residential drug
abuse treatment programs (RDAP) should have additional specialists for
treatment in the RDAP unit. This is inaccurate. We proposed to change
the regulation to explain that the Bureau's drug abuse treatment
programs, which include drug abuse education, RDAP and non-residential
drug abuse treatment services, are provided by the Psychology Services
Department.
We also proposed to make a minor corresponding change in Sec.
550.53(a)(1), which also refers inaccurately to the Drug Abuse Program
Coordinator, when instead the course of activities referenced in that
regulation is provided by the Psychology Services Department.
Section 550.53 Residential Drug Abuse Treatment Program
(RDAP)(f)(2). The Bureau proposed to remove subparagraph (f)(2) of
Sec. 550.53, which required inmates to pass RDAP testing procedures
and referred to an RDAP exam. The RDAP program no longer includes
written testing as a requirement for completion of the program.
Instead, RDAP uses clinical observation and clinical evaluation of
inmate behavior change to assess readiness for completion. Therefore,
the current language is inaccurate and imposes a requirement upon
inmates that no longer exists.
In 2010, the Bureau converted the Residential Drug Abuse Treatment
Programs to the Modified Therapeutic Community Model of treatment
(MTC). This evidenced-based model is designed to assess progress
through treatment as determined by the participants' completion of
treatment goals and activities on their individualized treatment plan,
and demonstrated behavior change. Each participant jointly works with
their treatment specialist to create the content of their treatment
plan. Every three months, or more often if necessary, each participant
meets with their clinical team (four or more treatment staff) to review
their progress in treatment. Progress in treatment is determined
through assessing the accomplishment of their treatment goals and
activities, along with demonstrated behavior change, such as improved
personal and social conduct, no disciplinary incidents, etc.
Unsatisfactory progress is evident when the participant does not
accomplish their treatment goals and does not demonstrate mastery of
skill development.
There are several studies about the effectiveness of the MTC model
of treatment. The most seminal study pertaining to this topic is titled
``Outcome Evaluation of A Prison Therapeutic Community for Substance
Abuse Treatment.'' \1\
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\1\ Wexler, H., Falkin, G., Lipton, D., (1990). Outcome
Evaluation of A Prison Therapeutic Community for Substance Abuse
Treatment. Criminal Justice and Behavior, vol.17 No.1, March 1990
71-92, 1990 American Association for Correctional Psychology.
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This behavioral form of assessing progress is a much more powerful
form of assessment than assessing the results of a written test. The
written test assesses knowledge, but knowledge does not necessarily
demonstrate whether the program has positively affected an individual's
behavior or addictive lifestyle.
All of the treatment coordinators in the Bureau have a doctorate
degree in psychology. They are well qualified to use their knowledge of
treatment and the behavior of individuals suffering from substance
abuse to objectively determine if a participant is ready to complete
the program. There are three decades of evaluation research that
support the efficacy of the therapeutic community model of treatment.
The most comprehensive source of program description, theory, and
summary of research associated with this model of treatment is found in
the book entitled The Therapeutic Community: Theory, Model, and Method.
New York: Springer Publishing Company, Inc. (De Leon, G. (2000).
Section 550.53(g) Expulsion from RDAP. We proposed to remove Sec.
550.53(g)(3), which required Discipline Hearing Officers (DHOs) to
remove an inmate automatically from RDAP if there is a finding that the
inmate has committed a prohibited act involving alcohol, drugs,
violence, escape, or any 100-level series incident.
Removing the language gives the Bureau more latitude and clinical
discretion when determining which inmates should be expelled from the
program. Inmates will then only be expelled from RDAP according to
criteria in Sec. 550.53(g)(1) which allows inmates to be removed from
the program by the Drug Abuse Program Coordinator because of disruptive
behavior related to the program or unsatisfactory progress in
treatment, and requires at least one formal warning before removal,
unless there is documented lack of compliance and the inmate's
continued presence would present an immediate problem for staff and
other inmates.
Removing paragraph (g)(3) removes the automatic expulsion of
inmates committing the listed prohibited acts and allows for greater
possibility of continuance of the program for inmates with discipline
problems.
Section 550.55(b) Inmates not eligible for early release. We
proposed to modify language precluding inmates from consideration for
early release if they have a prior felony or misdemeanor conviction for
homicide, forcible rape, robbery, aggravated assault, arson, kidnaping,
or an offense that involves sexual abuse of minors. The Bureau modifies
this language to clarify that we intend to limit consideration of
``prior felony or misdemeanor'' convictions to those which were imposed
within the ten years prior to the date of sentencing for the inmate's
current commitment. By making this change, the Bureau clarifies that it
will not preclude from early release eligibility those inmates whose
prior felony or misdemeanor convictions were imposed longer than ten
years before the date of sentencing for the inmate's current
commitment.
Title 18 U.S.C. 3621(e) provides the Director of the Bureau of
Prisons the discretion to grant an early release of up to one year upon
the successful completion of a residential drug abuse treatment
program. In exercising the Director's statutory discretion, we
considered the crimes of homicide, rape, robbery, aggravated assault,
arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR)
Program, violent crime is composed of four offenses: Murder and
nonnegligent manslaughter, rape, robbery, and aggravated assault.
Violent crimes are defined in the UCR Program as those offenses which
involve force or threat of force. The Director exercised his
discretion, therefore, to include these categories of violent crimes
and also expanded the list to
[[Page 24486]]
include arson and kidnaping, as they also are crimes of an inherently
violent nature and particular dangerousness to the public.
The Director exercises discretion to deny early release eligibility
to inmates who have a prior felony or misdemeanor conviction for theses
offenses because commission of such offenses rationally reflects the
view that such inmates displayed readiness to endanger the public. The
UCR explained that ``because of the variances in punishment for the
same offenses in different state codes, no distinction between felony
and misdemeanor crimes was possible.''
The application of national standards to the numerous local, state,
tribal, and federal prior convictions promotes uniformity, but creates
unique issues since each separate entity will have its own criminal
statutory schemes in which offenses may be categorized as either
misdemeanors or felonies. Limiting the Bureau to an analysis of how an
offense is categorized in local, state, tribal, or federal criminal
codes, rather than to an analysis of the nature of the prior offense,
would effectively prevent the Director from exercising the discretion
authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis
of prior violent misdemeanor convictions would allow inmates to receive
the benefit of early release merely because of the manner in which the
prior convictions were categorized.
Additionally, 28 CFR 550.55(b)(6) provides that inmates who have
been convicted of an attempt, conspiracy, or other offense which
involved certain underlying offenses are also precluded from early
release eligibility. Many state statutes provide that ``attempt''
convictions are to be categorized as one degree lower than the
underlying offense (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen
Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code
sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior
misdemeanor convictions may result in offenders convicted of attempting
to commit a precluding offense being found eligible for early release,
despite the provisions of 28 CFR 550.55(b)(6).
Further, based on a random sampling of inmates who participated in
RDAP but were precluded from RDAP early release eligibility, the Bureau
estimates that of the 856 inmates precluded in the year 2014 based only
on convictions for prior offense, at least half that number would have
been eligible for early release if the Bureau had not considered prior
offenses greater than 10 years old. The Fiscal Year 2015 estimated
annual marginal rate to incarcerate an inmate in the Bureau of Prisons
is $11,324 per inmate. Based on an estimate of 400 inmates released up
to a year early if this proposed rule change is made, that could equate
to a cost avoidance of over $4.5 million per year.
Also, in Sec. 550.55(b), the Director exercises his discretion to
disallow particular categories of inmates from eligibility for early
release, including, in (6), those who were convicted of an attempt,
conspiracy, or other offense which involved an underlying offense
listed in paragraph (b)(4) and/or (b)(5) of Sec. 550.55. We narrowed
the language of Sec. 550.55(b)(6) to preclude only those inmates whose
prior conviction involved direct knowledge of the underlying criminal
activity and who either participated in or directed the underlying
criminal activity. This change tailors the regulation to the
congressional intent to exclude from early release consideration only
those inmates who have been convicted of a violent offense.
Furthermore, the changed language expands early release benefits to
more inmates.
Beginning in 1991, in coordination with the National Institute on
Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP.
Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation
Project Final Report of Three-Year Outcomes: Part I. (``TRIAD Study'').
The study evaluated the effect of treatment on both male and female
inmates (1,842 men and 473 women). This study demonstrates that the
Bureau's RDAP makes a positive difference in the lives of inmates and
improves public safety.
The TRIAD study showed that the RDAP program is effective in
reducing recidivism. Male participants were 16 percent less likely to
recidivate and 15 percent less likely to relapse than similarly
situated inmates who do not participate in residential drug abuse
treatment for up to 3 years after release. The analysis also found that
female inmates who participate in RDAP are 18 percent less likely to
recidivate than similarly situated female inmates who do not
participate in treatment.
The TRIAD study defined criminal recidivism was defined two ways:
(1) An arrest for a new offense or (2) an arrest for a new offense or
supervision revocation. Revocation was defined as occurring only when
the revocation was solely the result of a technical violation of one or
more conditions of supervision (e.g., detected drug use, failure to
report to probation officer). Drug use as a post-release outcome, for
the purposes of the study, referred to the first occurrence of drug or
alcohol use as reported by U.S. Probation officers (i.e., a positive
urinalysis (u/a), refusal to submit to a urinalysis, admission of drug
use to the probation officer, or a positive breathalyser test).
Offenders who completed the residential drug abuse treatment
program and had been released to the community for three years were
less likely to be re-arrested or to be detected for drug use than were
similar inmates who did not participate in the drug abuse treatment
program. Specifically, 44.3 percent of male inmates who completed the
program were likely to be re-arrested or revoked within three years
after release to supervision in the community, compared to 52.5 percent
of those inmates who did not receive such treatment. For women, 24.5
percent of those who completed the residential drug abuse treatment
program were arrested or revoked within three years after release,
compared to 29.7 percent of the untreated women.
With respect to drug use, 49.4 percent of men who completed
treatment were likely to use drugs within 3 years following release,
compared to 58.5 percent of those who did not receive treatment. Among
female inmates who completed treatment, 35.2 percent were likely to use
drugs within the three-year postrelease period in the community,
compared to 42.6 percent of those who did not receive such treatment.
Section 550.56 Community Transitional Drug Abuse Treatment Program
(TDAT). In addition to changing ``Transitional Drug Abuse Treatment
Program (TDAT)'' to ``Community Treatment Services (CTS)'' throughout
this regulation as indicated earlier, we also deleted paragraph (c),
which appears to require that inmates successfully completing RDAP and
participating in transitional treatment programming must participate in
such programming for one hour per month. The provision in the
regulation was an error. It did not relate to Community Treatment
Services (CTS), but instead related to RDAP. It was therefore
unnecessary to retain this language. The substance of this language
will be retained as implementing text in the relevant policy statement
as part of RDAP procedures.
Comments: We received a total of 187 comments during the comment
period. Approximately 77 were in support of the proposed rule. Eighteen
``comments'' sent, although captioned as ``comments,'' were not
properly phrased as comments because they either related to personal
accounts of inmate eligibility for drug abuse treatment and/or early
release eligibility, or simply did not address issues raised in the
[[Page 24487]]
proposed rule. We address the issues raised in the remaining 92
comments below.
Discussion of Comments: In summary, for the reasons discussed
below, the Bureau adopts the regulatory changes of the proposed rule
without change.
Comment: Inmates with gun possession offenses should be eligible
for early release.
Approximately 58 commenters felt that eligibility for early release
should be offered for participation in RDAP to inmates with ``non-
violent'' offenses and/or inmates with convictions for offenses in
which firearm possession was present but perhaps no evidence of actual
use was found.
We have addressed this issue in the final rule published on January
14, 2009 (74 FR 1892), in which we stated the following:
Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine
eligibility for early release consideration (See Lopez v. Davis, 531
U.S. 230 (2001)). The Director of the Bureau exercises discretion to
deny early release eligibility to inmates who have a felony conviction
for the offenses listed in Sec. 550.55(b)(5)(i)-(iv) because
commission of such offenses illustrates a readiness to endanger the
public. Denial of early release to all inmates convicted of these
offenses rationally reflects the view that, in committing such
offenses, these inmates displayed a readiness to endanger another's
life.
The Director of the Bureau, in his discretion, chooses to preclude
from early release consideration inmates convicted of offenses
involving carrying, possession or use of a firearm and offenses that
present a serious risk of physical force against person or property, as
described in Sec. 550.55(b)(5)(ii) and (iii). Further, in the
correctional experience of the Bureau, the offense conduct of both
armed offenders and certain recidivists suggests that they pose a
particular risk to the public. There is a significant potential for
violence from criminals who carry, possess or use firearms.
As the Supreme Court noted in Lopez v. Davis, ``denial of early
release to all inmates who possessed a firearm in connection with their
current offense rationally reflects the view that such inmates
displayed a readiness to endanger another's life.'' Id. at 240. The
Bureau adopts this reasoning. The Bureau recognizes that there is a
significant potential for violence from criminals who carry, possess or
use firearms while engaged in felonious activity. Thus, in the interest
of public safety, these inmates should not be released months in
advance of completing their sentences.
It is important to note that these inmates are not precluded from
participating in the drug abuse treatment program. However, these
inmates are not eligible for early release consideration because the
specified elements of these offenses pose a significant threat of
dangerousness or violent behavior to the public. This threat presents a
potential safety risk to the public if inmates who have demonstrated
such behavior are released to the community prematurely. Also, early
release would undermine the seriousness of these offenses as reflected
by the length of the sentence which the court deemed appropriate to
impose.
Comment: All inmates participating in any kind of drug treatment
should be eligible for early release, violent offenders should be
eligible, non-U.S. citizens should be eligible:
Approximately 12 commenters stated that all inmates participating
in any type of drug treatment with the Bureau of Prisons should be
eligible for early release, including non-U.S. citizens and all other
currently non-eligible inmates.
18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse
treatment participation and eligibility for early release to inmates
with ``a substance abuse problem,'' not to all inmates. Although, by
statute, inmates without a substance abuse problem may not have the
opportunity for early release consideration, Sec. 550.52 allows all
inmates to participate in non-residential drug abuse treatment
services. The final rule seeks to make the program even more inclusive.
In the final rule, we modify the language of Sec. 550.55(b)(4),
which precludes inmates from consideration for early release if they
have a prior felony or misdemeanor conviction for homicide, forcible
rape, robbery, aggravated assault, arson, kidnaping, or an offense that
involves sexual abuse of minors. The Bureau modifies this language to
clarify that we intend to limit consideration of ``prior felony or
misdemeanor'' convictions to those which were imposed within the ten
years prior to the date of sentencing for the inmate's current
commitment. By making this change, the Bureau clarifies that it will
not preclude from early release eligibility those inmates whose prior
felony or misdemeanor convictions were imposed longer than ten years
before the date of sentencing for the inmate's current commitment.
18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons
the discretion to grant an early release of up to one year upon the
successful completion of a residential drug abuse treatment program. In
exercising the Director's statutory discretion, we considered the
crimes of homicide, rape, robbery, aggravated assault, arson, and
kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent
crime is composed of four offenses: Murder and non-negligent
manslaughter, rape, robbery, and aggravated assault. Violent crimes are
defined in the UCR Program as those offenses which involve force or
threat of force. The Director exercised his discretion, therefore, to
include these categories of violent crimes and also expanded the list
to include arson and kidnaping, as they also are crimes of an
inherently violent nature and particular dangerousness to the public.
As mentioned, this change is being made to clarify that inmates
will be eligible for early release eligibility if their prior felony or
misdemeanor convictions are older than ten years before the date of
sentencing for the inmate's current commitment. In other words, for
example, if an inmate's prior felony or misdemeanor was imposed nine
years before the date of sentencing for the inmate's current
commitment, the inmate WILL NOT be considered for early release
eligibility. The Director exercises discretion to deny early release
eligibility to inmates who have a prior felony or misdemeanor
conviction for theses offenses (within the ten years prior to the date
of sentencing for the inmate's current commitment) because commission
of such offenses rationally reflects the view that such inmates
displayed readiness to endanger the public. The UCR explained that
``because of the variances in punishment for the same offenses in
different state codes, no distinction between felony and misdemeanor
crimes was possible.''
It is important to note that the Bureau does not deny drug abuse
treatment to any inmates, including inmates who are not U.S. citizens.
Instead, we offer several program options, such as a drug abuse
education course or non-residential drug abuse treatment to inmates who
have drug problems but who do not otherwise meet the admission criteria
for the RDAP. These options are currently available for ``non-U.S.
citizen'' inmates.
Comment: All inmates should be eligible for drug treatment.
Several commenters stated that inmates whose records and/or
offenses of conviction show no elements of drug abuse should also be
permitted to participate in drug treatment.
As noted in response to the previous comment, the Bureau does not
deny
[[Page 24488]]
drug abuse treatment to any inmates. We offer several program options,
such as a drug abuse education course or non-residential drug abuse
treatment to inmates who have drug problems, as provided in Sec.
550.52, even if they do not meet the admission criteria for the RDAP.
With regard to eligibility for early release, however, as stated
earlier, 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug
abuse treatment participation and eligibility for early release to
inmates with ``a substance abuse problem,'' not to all inmates.
Because the early release is such a powerful incentive, as
evidenced by over 5,000 inmates waiting to enter treatment, the Bureau
must take appropriate measures to ensure that inmates requesting
treatment actually have a substance abuse problem that can be verified
with documentation. For those inmates who want treatment but do not
have the requisite documentation to enter the RDAP, non-residential
counseling services are available and encouraged.
Comment: Inmates eligible for up to a year of early release should
have it taken from ``time served.''
Three commenters felt that if inmates earn early release
eligibility, the time should be taken from ``time served.'' While it is
unclear from the comments, the Bureau interprets this to mean that the
commenters believe that up to a year of early release should be taken
from the total amount of time that the inmate has already served,
including any time in custody before the date of sentencing. However,
the Bureau is bound by statute in this regard. 18 U.S.C. 3621(e)(2)(B)
provides that ``[t]he period a prisoner convicted of a nonviolent
offense remains in custody after successfully completing a treatment
program may be reduced by the Bureau of Prisons, but such reduction may
not be more than one year from the term the prisoner must otherwise
serve.'' In other words, the early release time must be taken from the
term of sentence imposed.
Comment: Inmates who escape should be removed from RDAP.
One commenter felt that inmates who escape should be removed from
RDAP. The same commenter also felt that staff should retain discretion
to remove inmates who commit 100 series prohibited acts.
In the proposed rule, we proposed to delete language in Sec.
550.53(g)(3) which requires the Drug Abuse Treatment Program
Coordinator to remove an inmate automatically from RDAP if there is a
finding by the Discipline Hearing Officer (DHO) that the inmate has
committed a prohibited act involving alcohol, drugs, violence, escape,
or any other 100-level series incident. As we stated in the proposed
rule, removing the language would give the Bureau more latitude and
clinical discretion when determining which inmates should be expelled
from the program. The final rule retains this revised language. The
Bureau will retain the ability to remove inmates if they commit a 100-
level series incident, if, under the criteria in (g)(2), they are given
at least one formal warning before removal or when the documented lack
fo compliance with program standards is of such mangnitude that an
inmate's continued presence would create an immediate and ongoing
problem for staff and other inmates, but automatic expulsion due to
commission of a 100-level prohibited act will not occur.
As stated above, because the automatic expulsion language is
deleted, inmates will only be expelled from RDAP according to criteria
in Sec. 550.53(g)(1) which allows inmates to be removed from the
program by the Drug Abuse Program Coordinator because of disruptive
behavior related to the program or unsatisfactory progress in
treatment, and requires at least one formal warning before removal,
unless there is documented lack of compliance and the inmate's
continued presence would present an immediate problem for staff and
other inmates. Removing paragraph (g)(3) removes the automatic
expulsion of inmates committing the listed prohibited acts and allows
for greater possibility of continuance of the program for inmates with
discipline problems.
Comment: Drug treatment specialists should have some skills in
addiction treatment or addiction education.
One commenter felt that drug treatment specialists should be
qualified in addiction treatment or education. As we stated in the
preamble to the proposed rule, all of the treatment ``specialists,''
also known as ``coordinators'' in the Bureau have a doctorate degree in
psychology. They are well qualified to use their knowledge of treatment
and the behavior of individuals suffering from substance abuse to
objectively determine if a participant is ready to complete the
program.
Comment: Increase incentives for those who participate in drug
treatment but are not eligible for early release.
Two commenters believed that the Bureau should increase the
incentives that are available for inmates who participate in drug
treatment but may not be eligible for early release. Currently, 28 CFR
550.54 describes possible incentives for RDAP participation, including
limited financial awards, community-based treatment programs, preferred
living quarters, special recognition privileges, achievement awards,
and formal consideration for a nearer release transfer for medium and
low security inmates. The Bureau believes the allowance of these
incentives is adequate.
Comment: RDAP waiting lists are too long.
One commenter felt that inmate waiting lists for participation in
RDAP treatment are too long. Currently, the Bureau has over 5,000
inmates waiting for residential treatment that is provided with limited
Bureau resources. Inmates are selected for admission based on their
proximity to release. Those nearest to release enter the program first.
Using this method, we are able to ensure all inmates who qualify for
the program, and volunteer to participate, are able to complete the
program before their release from prison.
Comment: RDAP should be only 6 months instead of 9 months.
One commenter felt that the 9-month RDAP was ``too long'' and that
the program should instead be no more than 6 months.
Research of prison drug treatment programs has shown a greater
percentage of success in treatment if a unit-based component of the
treatment lasts for nine to twelve months. One study found a strong
relationship between time-in-program and treatment outcomes. Wexler,
Falkin, & Lipton: Outcome Evaluation of A Prison Therapeutic Community
for Substance Abuse Treatment. Criminal Justice and Behavior, Vol. 17
No. 1, March 1990. In this study, of the male inmates who participated
in a drug treatment program, the percentage of those who had no parole
violations during community supervision rose from 49 percent for those
who remained less than three months to 77 percent for parolees who were
in the program between nine and twelve months while in prison. Similar
findings were obtained for females, although the percentage of those
who had no parole violations was higher than for their male
counterparts (79 percent for those who remained in treatment less than
three months to the entire program and 92 percent for those who
completed the nine- to twelve-month program). Additionally, the study
also found that individuals who participate in a prison-based drug
treatment for longer than twelve months do not have outcomes that are
as successful as those who participated for nine to twelve months. An
intensive residential treatment
[[Page 24489]]
period between nine and twelve months near the end of an offender's
sentence, coupled with individually tailored community transitional
services program, may provide the best clinical outcomes and optimal
resource utilization.
Also, the National Institute on Drug Abuse funded three large-scale
National Treatment evaluations covering three decades, the 1970s,
1980s, and 1990s. Collectively, these studies--known as the Drug Abuse
Reporting Program, the Treatment Outcome Prospective Study and the Drug
Abuse Treatment Outcome Study, examined treatment performance and
predictors of treatment outcomes for samples of 65,000 individuals
admitted for drug abuse treatment. NIH Publication Number 02-4877,
August 2002. This NIH Publication provides one of the most
comprehensive overviews of the most salient research findings derived
from the 250 publications. Findings from publications based on this
research give broad support for the effectiveness of treatment,
particularly for those with an adequate length of stay.
The Bureau's inmate population generally tends toward greater
instances of addictive disorders, anti-social personality disorders,
and other types of disorders, such as depression, anxiety, etc. These
additional issues, which must be dealt with when treating an inmate's
substance abuse problem, increase the difficulty of successfully
treating an inmate within a six-month period. Although the Bureau makes
specific treatment decisions for inmates on a case-by-case basis, based
on the above research, and given the greater difficulty inherent in
maintaining the success of drug treatment for inmates, we chose to
require the unit-based component to be at least nine to twelve months
to afford the greatest likelihood of success in treatment.
Comment: Staff should receive training regarding lesbian, gay,
bisexual and transgender sensitivity issues.
One commenter stated that ``[b]ecause [lesbian, gay, bisexual and
transgender] LGBTQ people face additional challenges while
incarcerated, from physical safety to accessing health care, we
recommend that all treatment specialists receive cultural competency
training to best address the needs of LGBTQ prisoners in RDAP.''
The Bureau agrees with this important concern. All Bureau staff
receive training both at the start of their employment and annually
regarding the Bureau's anti-discrimination policy, including cultural
competency training to best address the needs of LGBTQ prisoners in
RDAP. It is the policy of the Bureau of Prisons to ``eliminate any
internal policy, practice, or procedure that results in discrimination
on the basis of race, color, sex, religion, national origin, age,
physical or mental disability, genetic information, equal pay,
pregnancy, retaliation, sexual orientation, gender identity, or status
as a parent'' Bureau of Prisons Anti-Discrimination Policy, PS 3713.25,
June 16, 2014.
Executive Orders 12866 and 13563
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and Executive Order 13563, ``Improving
Regulation and Regulatory Review.'' These executive orders direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.
The Director, Bureau of Prisons has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this rule has been reviewed by the Office of
Management and Budget.
As context regarding the current impact of the RDAP (i.e., prior to
the changes made in this rule), 18,102 inmates participated in the
residential drug abuse treatment program in FY 2014. 18 U.S.C.
3621(e)(2) allows the Bureau to grant a non-violent offender up to one
year off his/her term of imprisonment for successful completion of the
RDAP. In FY 2014, 5,229 inmates received a reduction in their term of
imprisonment resulting in a cost avoidance of nearly $50 million based
on this law (average reduction was 10.4 months and the marginal cost
avoidance was $10,994 annually). The changes made by this rule will
likely increase the number of current inmates who benefit from the RDAP
program and increase the number of inmates who may be eligible for
early release, thereby resulting in cost avoidance to the Bureau in the
future.
For instance, with regard to Sec. 550.55(b)(6), changing ``other
offense'' to ``solicitation to commit,'' based on prior year data (from
2014), we estimate that approximately 45 inmates would be made eligible
for early release as a result of the changes made by this rule.
Since 2013, the Bureau was able to expand RDAP capacity due to
increased funding through annual congressional budgeting processes. The
Bureau will therefore not require more resources in order to put more
individuals through RDAP. RDAP is a nine-month program. The program has
a treatment capacity large enough to accommodate about 8,400
participants at any given time. This number also reflects inmates who
may drop out of the program and are replaced with other inmates on the
wait list. Therefore, during a 12-month period, program capacity is
filled twice (8,400 inmates will complete one nine-month term, and
another 8,400 inmates will begin a new nine-month term), which means
that at least 16,800 participants can be included in the program in a
given year.
Executive Order 13132
This regulation would not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Under Executive Order 13132, this
rulemaking does not have sufficient federalism implications for which
we would prepare a Federalism Assessment.
Regulatory Flexibility Act
The Director of the Bureau of Prisons, under the Regulatory
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By
approving it, the Director certifies that it will not have a
significant economic impact upon a substantial number of small entities
because: This rule is about the correctional management of offenders
committed to the custody of the Attorney General or the Director of the
Bureau of Prisons, and its economic impact is limited to the Bureau's
appropriated funds.
Unfunded Mandates Reform Act of 1995
This rule will not cause State, local and tribal governments, or
the private sector, to spend $100,000,000 or more in any one year, and
it will not significantly or uniquely affect small governments. We do
not need to take action under the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
would not result in an annual effect on the economy of $100,000,000 or
more; a
[[Page 24490]]
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
List of Subjects in 28 CFR Part 550: Prisoners.
Kathleen M. Kenney,
Assistant Director/General Counsel, Federal Bureau of Prisons.
Accordingly, for the reasons set forth in the preamble, part 550 of
title 28 of the Code of Federal Regulations is amended as follows:
PART 550--DRUG PROGRAMS
0
1. The authority citation for part 550 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624,
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984 as to offenses committed after that date), 5039; 21 U.S.C.
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18
U.S.C. Chapter 223).
0
2. Revise Sec. 550.50 to read as follows:
Sec. 550.50 Purpose and scope.
The purpose of this subpart is to describe the Bureau's drug abuse
treatment programs for the inmate population, to include drug abuse
education, non-residential drug abuse treatment services, and
residential drug abuse treatment programs (RDAP). These services are
provided by Psychology Services department.
0
3. Amend Sec. 550.53 by revising paragraphs (a)(1), (a)(3), and (f),
removing paragraph (g)(3), and redesignating paragraph (g)(4) as new
paragraph (g)(3) to read as follows:
Sec. 550.53 Residential Drug Abuse Treatment Program (RDAP).
(a) * * *
(1) Unit-based component. Inmates must complete a course of
activities provided by the Psychology Services Department in a
treatment unit set apart from the general prison population. This
component must last at least six months.
* * * * *
(3) Community Treatment Services (CTS). Inmates who have completed
the unit-based program and (when appropriate) the follow-up treatment
and transferred to a community-based program must complete CTS to have
successfully completed RDAP and receive incentives. The Warden, on the
basis of his or her discretion, may find an inmate ineligible for
participation in a community-based program; therefore, the inmate
cannot complete RDAP.
* * * * *
(f) Completing the unit-based component of RDAP. To complete the
unit-based component of RDAP, inmates must have satisfactory attendance
and participation in all RDAP activities.
* * * * *
0
4. In Sec. 550.55, revise paragraph (b)(4) introductory text and
paragraph (b)(6), to read as follows:
Sec. 550.55 Eligibility for early release.
* * * * *
(b) * * *
(4) Inmates who have a prior felony or misdemeanor conviction
within the ten years prior to the date of sentencing for their current
commitment for:
* * * * *
(6) Inmates who have been convicted of an attempt, conspiracy, or
solicitation to commit an underlying offense listed in paragraph (b)(4)
and/or (b)(5) of this section; or
* * * * *
0
5. Revise Sec. 550.56 to read as follows:
Sec. 550.56 Community Treatment Services (CTS).
(a) For inmates to successfully complete all components of RDAP,
they must participate in CTS. If inmates refuse or fail to complete
CTS, they fail RDAP and are disqualified for any additional incentives.
(b) Inmates with a documented drug use problem who did not choose
to participate in RDAP may be required to participate in CTS as a
condition of participation in a community-based program, with the
approval of the Supervisory Community Treatment Services Coordinator.
[FR Doc. 2016-09613 Filed 4-25-16; 8:45 am]
BILLING CODE 4410-05-P