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New Haven Independent: Rowland: Criminal Justice Reform “Sands Have Shifted”

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By Thomas Breen, Reprinted from the New Haven Independent, April 5, 2019

Former Gov. John Rowland has seen the most right-wing of Republicans and the most left-wing of Democrats converge on at least one issue since the height of his political career two decades ago: criminal justice reform, an issue he has experienced firsthand from all sides.

“The sands have shifted dramatically,” Rowland said Friday on the most recent episode of WNHH’s “Criminal Justice Insider with Babz Rawls-Ivy and Jeff Grant.”

The bipartisan political mindset in the 1990s was to be “tough on crime” with mandatory minimum and three-strikes-and-your-out laws, he noted. Now the rare moments of political consensus today center around laws like the First Step Act, which both the conservative Koch Brothers and the liberal American Civil Liberties Union worked with the Trump Administration on in an effort to reduce federal prison populations and bulk up reentry support services.

“You couldn’t be tough enough on crime back in the day,” Rowland said about the 1990s. But in 2019, not so much.

Rowland, who currently serves as the Northeast development director for the Christian nonprofit Prison Fellowship, is uniquely qualified to comment on how mainstream political common sense has changed over the past four decades. In Connecticut, he’s spent many of those years right in the middle of it.

In 1980 at the age of 23, Rowland became the youngest member of the state House of Representatives. Four years later, he became the youngest U.S. congressman, representing Connecticut’s Fifth Congressional District.

In 1994, at just 37 years old, he became the state’s youngest governor. He served in Hartford until 2004, when he resigned amidst a corruption investigation, and served 10 months in federal prison after pleading guilty to charges related to taking $107,000 in favors from state contractors. It was the first of two convictions and prison sentences.

“The world has changed,” Rowland said as he reflected on how Republicans and Democrats alike in the 1980s and 1990s used the specter of gang violence and drug dealing to lock people up in record numbers.

That mindset led to a skyrocketing in the country’s incarcerated population from around 420,000 in the early 1970s to around 2.3 million today.

He said that evangelical Christian organizations like the one he works for as well as racial justice advocates and civil libertarians have formed a bipartisan coalition focused on reducing mandatory minimums and racial disparities in sentencing, closing prisons, and helping the formerly incarcerated finding housing, work, and meaningful social and spiritual support systems.

“We know how to be tough on crime,” he said. “Now we have to be smart on crime.”

Not Sorry

Rowland was also asked how he thinks now about his two stints in federal prison. The first came in 2005, when he served 10 months after pleading guilty to charges related to taking favors from state contractors; the second came in 2014, when he served 15 months for arranging to be paid to work secretly as a political consultant on two congressional campaigns, in violation of federal campaign finance laws.

Is he sorry?

Following is an exchange Rowland had on Friday’s program with WNHH hosts Babz Rawls-Ivy and Jeff Grant about where he stands now on his convictions and time served.

Rawls-Ivy: When you find yourself about to do this for the second time, what’s your thoughts? How did you feel?

Rowland: You look at the motivation. When this first started to occur a few years ago, my lawyer went down to meet with the prosecutors, and they said, ‘Your guy didn’t do enough time 10 years ago. We’re gonna get him.’ OK. This is going to be a problem. It took them about a year ago to put things together. And then you look back over your shoulder, trying to figure what the motivation was, and you see that the guy that went after you, before you’ve even gotten down the steps of the courthouse, he’s running for governor. Oh, that’s interesting. That explains a lot. He had gone after a couple of Democrats and he needed to beef up his meal ticket. So that’s why he went after me. So you understand the motivation. Once you understand that, one of the things I always council people on before they go away, is to leave bitterness behind. If you go into that facility and you’re bitter and you’re mad and you’re angry, you’re the only one that’s going to suffer from that. …

Rawls-Ivy: Did you have an opportunity to apologize or be sorry? Do you feel sorry for whatever you were charged with? Because I know people want to make you sorry.

Rowland: Let me ask you this, for ‘whatever you’ve been charged with.’ My nickel bet is you can’t even come close to suggesting what i’ve been charged with.

Grant: The second time or the first time?

Rowland: Either time. … The point of saying that is, a lot of times things get trumped up, and there’s motivations and purposes behind it. And the motivations and purposes behind what these guys did to me, you’d be hard pressed to see if anybody ever went to prison for these charges. Or any victims or anybody hurt, or anything else.

Grant: Anybody who goes through the system … in some respects, they know that they’re a political refugee. It’s set up for winners and losers. … This is a conversation that has to happen in order for people to reconcile what’s happened to them. But that doesn’t relieve them necessarily of their responsibility and of their need to show remorse and ask for forgiveness. Where are you in that spectrum?

Rowland: Let me put it this way. If I felt that I did something wrong and I’d ask for forgiveness, I would have done a plea deal. But I went to court and I fought it. I went to appeals. The law firms even came in and did all this stuff pro bono. If they did this stuff pro bono, there must be a reason behind it. They took it to the [state] Supreme Court.

So, if you look at the criminal justice system, it is fragmented, with things that take place in the urban communities, but the political motivations that are now coming out are much worse than they were a million years ago. And I say this because if you think you’re safe, look at what’s happening [to President Trump]. Here he is, the most powerful person on the planet arguably, whether you like him or not, a couple of prosecutors decided that they were going to go after him, and they spent two years. But here’s what’s interesting. Can you pursue another human being, another law abiding citizen, if there’s no evidence that a crime has been committed.

Rawls- Ivy: I’m sorry, what?

Rowland: There was no evidence that he committed any crime. And yet’s he’s been investigated.

Rawls-Ivy: We don’t know that. We don’t have the Mueller report. We have Barr’s interpretation.

Rowland: I’m not going there. If they had something, they would have indicted him. My point is, the motivation to start the investigation, there was no blatant evidence of a crime that had been committed. Leave the politics alone for a second, if prosecutors can go after the president of the United States and torture him and his family and his friends, imagine what they can do with ordinary citizens.

Rawls-Ivy: As the only person of color in this room, I just find that whole statement upside down.

Rowland: It has nothing to do with color. What I’m suggesting is that, when prosecutors decide to pursue somebody, it doesn’t matter who they are.

Guest Blog: Shouldn’t Criminal Defense Lawyers Prepare White Collar (and All) Clients for Prison? by Jay M. Berger

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Jay is a member of our Confidential Online White Collar/Nonviolent Support Group, the first in the nation. It meets weekly on Monday evenings. It is offered free of charge to our community. Our 146th meeting will be held on Monday, March 25, 2019. If you, a friend, family member, colleague or client have a white collar or nonviolent criminal justice issue, please join us. Information at: prisonist.org/white-collar-support-group.

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“I think that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the adjudication process. Once the adjudication process is over, we have no interest in corrections. … Nobody looks at it.” – U.S. Supreme Court Justice Anthony Kennedy said while testifying before a House appropriations subcommittee, lamenting lawyers ignoring the prison phase of the criminal defense process.

I was an attorney in Pennsylvania for over 30 years. I was also, more recently, a federal prisoner for almost five years. In 2007, I was charged with one count of mail fraud affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded guilty and served my sentence in five facilities of varying security classifications from June 2008 until April 2013. During the entire time I was incarcerated, I do not recall hearing of a single instance, my case included, where the defense lawyer provided any meaningful prison preparation or counseling for his or her client as part of the representation.

What completely baffles me about that omission is that there is roughly a 97 percent conviction rate in today’s federal criminal justice system, almost all of which derives from guilty pleas, and the outcome in most cases is incarceration. Because this inevitability of serving time in prison is known well in advance of actual confinement, there are numerous prison-related matters that can and should be addressed during that interim period. They include, among many others:

  • Establishing eligibility for the only ­early-release program available.
  • Prison designation and inmate classification.
  • Requirements for reporting to prison and what to expect upon arrival.
  • Essential medical procedures for pre-existing conditions.

Given this nonexistence of prison counseling by defense attorneys, one recent ­approach taken by many clients has been to retain independent prison consultants without conferring with their lawyers. 

However, this route usually creates more problems than it solves. Due to today’s climate of mass incarceration, the criminal defense field is suddenly being flooded with former inmates who are magically expert consultants the day after they leave prison. They monitor the court dockets for new cases and immediately solicit new defendants directly. These defendants are extremely vulnerable at that point and retain these “consultants” primarily out of fear of the unknown. 

Yet these self-proclaimed experts are too often providing wrong information and making promises that they cannot possibly keep. They are even offering legal advice that conflicts with that provided by the defense attorneys, and all the while they are draining defendants of their resources. Incidentally, this is exactly what happened in my case. I am convinced that there are no more than a handful of credible prison consultants in the entire country.

So, how do we address Justice Kennedy’s concerns? 

To me the solution is fairly obvious. It must be the responsibility of the defense attorneys to provide prison preparation services to their clients. Having been both a lawyer and a criminal defendant, I understand how imperative it is for clients to feel they can look exclusively to their defense attorneys for guidance in all areas of their cases. This is especially true where one of those areas ultimately involves a journey through prison. Therefore, the attorneys must either acquire enough knowledge to offer these services themselves, or in the alternative, retain a legitimate prison consulting service to work closely in conjunction with them. I view the latter approach no differently than when a defense attorney deems it necessary to retain any reliable, independent expert to provide essential skills related to the case.

Accepting the above premise as correct, how do we actually convince criminal defense attorneys to incorporate some methodology of prison expertise as an integral part of their cases? Realistically there has to be incentives for them to do so, and we might as well begin with the obvious one. There is no question in my mind that providing this service would be a source of revenue and a profit center for the law firm. Defense attorneys are compensated for their time and skill, yet they are ignoring a critical (and billable) component of their criminal defense representation. 

Criminal defense attorneys are leaving it instead for someone else to handle, completely unsupervised and usually at an exorbitant cost to their clients, and that is something that simply should not happen. 

I urge any criminal defense lawyers reading this to ask your clients facing incarceration if they would like to incorporate expert counseling on how to navigate their way through the prison abyss as part of their legal fee agreement. I know what their answers will be.

The other significant incentive for defense attorneys would be having clients who were well informed about their forthcoming time in custody. Inmates and former inmates talk about their lawyers incessantly and quite often mention the lack of attention given to preparing them for prison. That is why it was so heartening to hear this issue raised by a Supreme Court justice, because the truth is that every inmate in every prison in America could say the very same thing about their lawyers and it wouldn’t make a bit of difference to anyone.

I submit that any defense attorney who ­offers clients the strategies they need to manage through confinement and emerge successfully would add substantial value to the legal representation provided. It would bring an element to a criminal defense practice that is not typically available, and there is no better testimonial for an attorney than former clients who are satisfied that they were well represented in all facets of their cases. Word would spread and potential criminal defense clients might just be inclined to gravitate to a law firm that provides a more comprehensive representation by including prison counseling. In my opinion, this would significantly set that particular criminal defense practice apart from its competitors.

Those of us who have taken that shameful and lonely walk through prison doors could have desperately used some help from our defense attorneys to prepare us for what we were about to encounter. I assure you that we would have been eternally grateful for the consideration given to this most important aspect of our cases. I respectfully implore my former colleagues of the bar who practice criminal defense law to heed the words of Kennedy and begin paying attention.  

This blog post originally appeared on prisonist.org in July 2016 and as an Op-Ed in The Legal Intelligencer. Jay M. Berger is a graduate of Penn State University and Case Western Reserve University School of Law. Since completing his time as a federal inmate, he authored and published a book titled “The Fall of the Firmest Pillar,” which is a memoir about his journey through the federal criminal justice system. Jay can be reached at bmj253@gmail.com.

Article: Show Up Drunk: Indictments Spotlight Prison Rehab Scams, by Dave Collins, AP

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Photo: Jack Donson

Reprinted from Various Sources, by Dave Collins, Associated Press, March 11, 2019

It’s a tip that has been passed onto convicts for years: On your way to federal prison, say you have a substance abuse problem, and you could qualify for a treatment program that knocks up to a year off your sentence.

Federal prosecutors have long suspected abuses in the program, which has enrolled a deep list of high-profile convicts. Recently, a grand jury in Connecticut indicted three people accused of coaching ineligible convicts on how to get into the Residential Drug Abuse Program, or RDAP, by telling them to show up to prison intoxicated and fake withdrawal symptoms. The charges are among the first filed against prison consultants involving the program.

The case has put a spotlight on the unregulated world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

The small industry now is “totally the Wild West,” said Jack Donson, president of New York-based My Federal Prison Consultant and a retired federal Bureau of Prisons employee.

“I hope it brings light to things,” he said, referring to the Connecticut case. “I hope it gives people … pause to not cross that line to illegality and unethical conduct.”

Completing the nine-month, 500-hour treatment program for nonviolent offenders is one of only a few ways inmates can get their sentences reduced. About 15,600 inmates — nearly 10 percent of the current federal prison population — participated in the program last year, and thousands more are on waiting lists. To get in, convicts must present evidence they had substance abuse or addiction problems during the year prior to their arrest. Upon completion, their sentences can be reduced and they can spend the last six months of their sentences in a halfway house.

Christopher Mattei, a former federal prosecutor in Connecticut, said the U.S. attorney’s office increasingly saw white-collar convicts make use of the program.

“It undermines the public’s confidence that all people when they go before a court for sentencing will be treated fairly. People who know how to game the system know how to get the benefits, whereas people who are struggling with addiction don’t know all the angles to play,” Mattei said.

Mattei helped send Bridgeport Mayor Joseph Ganim to prison for nearly seven years for corruption. Ganim took part in the drug treatment program, got released early in 2010 and made a stunning comeback by winning back the mayor’s seat in the 2015 election.

That Ganim even had a substance abuse problem surprised both Mattei and the federal judge who sentenced him, since there had been no indication of such a problem. After his release, Ganim himself worked as a prison consultant and touted his knowledge of the drug program. He did not return messages from the AP seeking comment.

Questions have been raised about other prominent convicts’ admittance to the program.

Former Atlanta Mayor Bill Campbell, sentenced to 30 months for tax evasion, completed the program, but the four-month early release he received was revoked in 2008 after prosecutors raised questions about whether he really had an alcohol problem.

Former Enron Treasurer Ben Glisan Jr. was sentenced to five years in prison after pleading guilty in 2003 in the Enron fraud scandal, but he shaved 18 months off the sentence through good behavior and the drug treatment program.

While testifying at the fraud and conspiracy trial in 2006, Glisan appeared to joke about the program on the witness stand while being questioned by Daniel Petrocelli, the lawyer for former Enron Chief Executive Officer Jeffrey Skilling, the AP reported at the time. Glisan said his pre-prison drinking “problem” was consuming two glasses of wine upon returning home and sometimes a bottle when out with colleagues.

“You said one or two drinks. If you have a drinking problem, then I’m in serious trouble,” Petrocelli joked.

“You’ll get a year off,” Glisan replied with a laugh.

Bureau of Prisons officials said they cannot comment on specific inmates who participated in the program or on legal proceedings, including indictments.

“However, we can share that the BOP is committed to the integrity of the Residential Drug Abuse Program,” the agency said in a statement.

The criminal indictments in Connecticut are believed to be among the first criminal charges filed against prison consultants in connection with the treatment program.

Arrested were Michigan residents Tony Pham, 49, and Samuel Copenhaver, 47, both of Grand Rapids; and Constance Moerland, 33, of Hudsonville. The three were managing partners in RDAP Law Consultants, authorities said.

Prosecutors said the three told clients over the past six years to falsely inform Bureau of Prisons officials that they had drug and alcohol problems, taught them how to fake withdrawal symptoms and how to fraudulently obtain medication to treat withdrawal symptoms, so they could show prescriptions to qualify for the program. The partners also told their clients to begin drinking alcohol daily before going to prison and to show up drunk, the indictments said.

Messages were left at phone listings for Pham and Moerland. Copenhaver did not address the allegations in emails with the AP, saying he was too busy to comment. Lawyers for Copenhaver and Moerland declined to comment. A message was left for Pham’s public defender.

“The fraudsters not only undermined the authority of the judicial system to administer fair and impactful sentences, but they diverted vital substance abuse treatment from inmates who really needed it,” said Kristina O’Connell, an Internal Revenue Service agent in charge of New England investigations.

Last year in New York City, a lawyer and three other people were charged with defrauding the government and making false statements. They allegedly submitted bogus information to prison officials, claiming that a convicted drug dealer had a history of addiction, in an effort to get the client into the drug treatment program so he could be released early. The case remains pending.

Other consultants coach people on how to lie to get into the program, according to Donson, who said some also claim they can get convicts sent to prisons that have the RDAP program when only federal prison officials have that authority. He said he sees potential for fraud also as consultants rush to offer help related to a new law that allows federal prisoners sentenced for crack cocaine offenses before late 2010 the opportunity to petition for a lighter penalty.

Donson and other consultants say more monitoring of the industry and prosecutions would help deter misconduct.

“It’s an unregulated industry, so something like this hopefully brings some attention to it,” said Dan Wise, an ex-con who completed the RDAP program and now runs a prison consultant business based in Spokane, Washington.

Forbes: Feds Bust Prison Consulting Firm, By Walt Pavlo, Forbes Contributing Columnist

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Reprinted from Forbes.com, Jan. 28, 2019

The prison consulting business has been plagued by gimmicks and false promises.  Now a federal indictment in Connecticut could blow the lid off of a number of scammers that have taken advantage of defendants and their families.

US Attorneys in Connecticut have indicted three people who worked at RDAP Law Consultants LLC (RDAP Law) a firm that promised, guaranteed, that its clients would earn up to 18 months off of prison for hiring them.  Tony Tuan Pham, Samuel Copenhaver and Constance Moerland were indicted on charges that they coached people to fake drug and alcohol habits to gain entry into the Bureau of Prisons’ 500-hour program, Residential Drug Abuse Program (RDAP).  Getting into the program can get inmates up to one year off of their prison term and it is the only program in the BOP that offers a reduced time in prison.   The BOP considers it one of their premier successes:

“The Bureau and National Institute on Drug Abuse combined funding and expertise to conduct a rigorous analysis of the Bureau’s RDAP. Research findings demonstrated that RDAP participants are significantly less likely to recidivate and less likely to relapse to drug use than non-participants. The studies also suggest that the Bureau’s RDAPs make a significant difference in the lives of offenders following their release from custody and return to the community.”

The RDAP program is a 9-month program of intensive drug and alcohol therapy.  Those who enter the program participate in a regimen of therapies while incarcerated and counseling sessions after their release from prison.  To qualify, a defendant must state that they have a drug or alcohol dependency within the year prior to their arrest … but that statement must be included in a Presentence Report, a historical report that provides detail on the defendant’s life (criminal past, family history, medical history and drug abuse).  In many cases, defendants, particularly those involved in the drug trade (the majority of federal charges), have a drug problem.  However, having that abuse documented in the Presentence report is imperative to gaining admission.  When it is not, documentation must be provided to support a history of abuse … and that has launched a cottage industry of  “consultants” who are falsifying information for those who did not initially qualify for the program.

When a defendant, a desperate defendant, reached out to RDAP Law, they would direct them to fraudulently obtain one or more prescriptions for medications used to treat withdrawal symptoms, and to bring those medications upon reporting to a BOP facility to begin serving their prison term.  This created the false appearance of substance abuse disorder. RDAP Law also educated clients about how to mimic withdrawal symptoms and instructed clients “who were not yet in custody to adopt a daily habit of drinking alcohol or to have a medical professional provide a prescription for anti-anxiety medication prior to the client reporting to a BOP facility.”  If none of those worked, RDAP Law recommended that defendants show up at prison drunk.  For all of this, they would charge fees up to $10,000.

I have talked to a number of defendants and they all tell me that they are bombarded with emails and phone calls for prison consulting services once they have been sentenced.  These consultants promise results ranging from time off of a prison term to luxury prison designations.  It is a scam that has been going on too long.

RDAP Law’s luck ran out when it promised a defendant entry into RDAP and the defendant was working in cooperation with the FBI and US Attorneys office in Connecticut.  Pham’s pitch had six pieces of advice according to an excerpt from a recorded call:

Number one, you drink every day, including weekday. Number two, alcohol is very important to you. It’s a big part of your life.  Three, you’re a good drinker now. . . . Your first glass of wine you don’t feel anything.  Number four, you’ve tried to quit many times and you can’t. . . . You get sick if you don’t drink, you don’t feel like yourself. Ok? You can’t sleep. You can’t think.  Like an alcoholic, like an addict. You don’t feel good unless you have a drink.  That’s five. And number six, it’s called abuse. Abuse meaning bad things. Ok? You do bad things when you drink.

Now, the defendant in that case is not going to the RDAP program but will likely receive some time off for cooperating against RDAP Law.  The RDAP Law website is still up, but I’m guessing the feds are monitoring it … as well as a few others.

It is also likely that the BOP will look at their requirements for qualifying for RDAP.  For every person who has faked drug or alcohol abuse to get into the program, there are many who did not qualify but had real substance abuse problems that were not properly documented.  The BOP, for all of its shortcomings, has a successful program in RDAP that needs to be strengthened.  Prosecutions like this will start that process.

When Walt is not writing on white collar crime, he works with experts who present on it. Check out 500 Pearl Street Speakers or contact him at waltpavlo@500pearlstreet.com.

Walter Pavlo Contributor

I established 500 Pearl Street Speakers as a boutique speaker bureau that brings together journalists, former law enforcement agents, forensic accountants, lawyers and those involved in white collar crimes to create memorable training events. When I’m not speaking or writing, I’m working with Jack Donson at Prisonology LLC to help everyone facing federal prison. In 2007, I released the book “Stolen Without A Gun” with Neil Weinberg, former Executive Editor Forbes Magazine (now a Reporter for Bloomberg). I write on white-collar crime and try to provide a different perspective than that of the mainstream media.