The U.S. 9th Circuit Court of Appeals struck down a Federal Bureau of Prisons policy restricting early release to certain prisoners who completed the RDAP, The Residential Drug Abuse Program. The program was for prisoners convicted of non-violent offenses, and for 12 years, the BOP tried adopting policies to exclude inmates who had used or possessed a firearm as being violent. The first time, BOP adopted an impermissible definition of "crime of violence;" Their second attempt was struck on notice and comment grounds (procedural) under the Administrative Procedures Act as 9th Circuit Judges Stephen Reinhardt, Cynthia Hall and Milan Smith ruled that the BOP regulations failed to set forth a rational rule. The BOP tried to justify the rule under the rationale that felons who had used guns are more likely to be a danger in the community. This rationale however was post hoc, and was not presented to the agency while the rule was being formulated. The second rationale, that exclusion was necessary to create uniformity amongst the different laws and definitions across the circuits was arbitrary and capricious. The agency could just as well have included such inmates. The reason that BOP chose one over the other (mean spiritedness?) was never explained or justified. Thus, it violated the APA.
According to Larry Levine, a former Federal Inmate and founder of prison consulting firm American Prison Consultants , "a helpful BOP legal counsel who asked not to be identified suggested that inmates who'd completed RDAP and been denied the reduction immediately file an Administrative Remedies Request (BP-9) or COP-OUT form to
their (BOP) Unit Team seeking an earlier release date."
"The BOP's eligibility policy never made any sense," said Levine. "I actually know people who were denied the time off under something called the 'MAGIC TRIANGLE THEROY', when the supposed gun used in their offense was never brandished and locked in a closet miles away from where their alleged crime took place."
