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Feb. 9 will be a big day for Samuel Waksal, the former chief executive officer
of biotech firm ImClone. That day he'll be released from federal custody after
serving five years, six months, two weeks for insider trading. This is 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 presentence
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.
How 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 greatly. 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 [presentence] report." For a fee of up to 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 post conviction 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 be
coordinator of the treatment program for 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 letterhead for phoney treatment notes. Ellis and Lasky say they don't help candidates
game the system.
Former Atlanta Mayor Bill C. Campbell was convicted of tax evasion in March 2006 and received a 30-month sentence. He told a probation
officer he doesn't like the taste of alcohol and only drinks when giving a toast. Campbell's lawyer even argued to the judge at sentencing
that imprisonment wasn't necessary because Campbell had "no health or substance abuse problems" and thus was "not in need of the
already thinly spread services offered by the correctional system."
Nonetheless, Campbell applied to the program, claiming to be a long-time alcoholic. He got notes from two doctors who purportedly
treated him for alcohol abuse. Curiously, one was a cardiologist and the other an saying that he had observed the mayor drinking at a
dinner hosted at the doctor's home. The regional coordinator found the letter "disturbing" and deemed Campbell ineligible for the
program. He was overruled by national program coordinator Beth A. Weinman, who said that Campbell met the criteria for admission.
Campbell was already in a halfway house on his way to being released four months early when the feds discovered his lie and had him
sent back to prison.
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 Glisan's two-drink-a-night
dependency, Skilling's attorney snickered, "If you got a drinking problem, then I'm 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 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 defence lawyer Barry
Boss, who denies any widespread abuse of the program, says: "When a 50-year-old first offender receives a ten-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. It's no joke. It's an intense 500 hours of cognitive behavioural
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 per cent less likely to commit another crime and 15
per cent less likely to relapse to drug use.
The 2009 Criminal Justice Transition Coalition, a group of organizations advocating criminal justice reform, is asking President-elect
Barack Obama to expand the program to yet more inmates. Even Sam Waksal might drink to that.
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