Can a Judge Give More Prison Time So You Can Get Drug Treatment?

A federal judge may not send you to prison, or keep you there longer, so you can get drug treatment or job training. The Supreme Court set this rule in Tapia v. United States, 564 U.S. 319 (2011). The Tenth Circuit applied it on January 20, 2017, in United States v. Thornton.

What happened

Christopher Thornton's guideline range was 77 to 96 months. He asked for a downward variance (a sentence below the range) to 38 months, arguing that treatment in prison during those 38 months would lower any risk he posed.

The judge said no. He said Thornton had "mental-health issues, and he needs drug treatment," and that he needed "enough time in prison to get treatment and vocational benefits." The judge imposed 78 months.

Drug treatment in federal prison

The Bureau of Prisons (BOP) offers residential and non-residential drug treatment. The Residential Drug Abuse Program, or "RDAP," typically lasts about nine months, according to the Bureau of Prisons. Eligible people who complete it can get up to one year off their sentence under 18 U.S.C. § 3621(e)(2)(B).

What the Tenth Circuit held

The court said it was error to rely on Thornton's need for treatment or training in setting the prison term. It also clarified four points:

1. A judge's denial of a request for a lower sentence is subject to the Tapia rule.
2. Tapia error can happen even if the judge also gives other valid reasons.
3. The judge does not have to name a specific treatment program for the error to occur.
4. A judge may mention rehabilitation to answer a defendant's argument that prison treatment justifies less time. But the judge errs if the sentence rests, even partly, on the benefit of prison-based rehabilitation.

Why Thornton still lost

Thornton did not object at sentencing, so he had to show "plain error," meaning an error that was clear under existing law. Because the law on this point was unsettled at the time, the error was not plain, and his sentence was affirmed. United States v. Thornton, 846 F.3d 1110 (10th Cir. 2017).

The lesson: if a judge ties your prison time to treatment or training, your lawyer should object right then. A judge can still recommend RDAP or other programs in the judgment, and that recommendation can help. The problem is only when the need for treatment is used to make the prison term longer.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.