NEWS ALERT!
Like everyone else in the
country, I have been waiting to see how long of a prison sentence Michael Cohen
would receive today. If anyone read the filing submitted by the prosecutors
last week, he would see that the guidelines called for Cohen to receive a 42-month
sentence. Essentially, the judge gave him a break for being willing to throw
the President under the bus, irrespective of whether his assertions are true.
Now it is time for a reality
check. Michael Cohen is not going to spend three years in prison. In-fact, his
total time in Federal Prison, if he plays his cards right, will be closer to
one year, not the three that was advertised. Ironically, as I will point out,
he would be facing less time in prison had he been sentenced to 37 months
instead of 36 months.
So how does it really work?
Firstly, everyone who behaves gets a 15% reduction in his sentence. For Cohen
that means that his total prison term in closer to 30 months. Next, since
Michael Cohen presumably had a good lawyer, he has disclosed an alcohol or drug
dependency, as did I. For Cohen that means that he is eligible to enroll in
RDAP (Residential Drug Abuse Program). The RDAP program lasts a little over
nine months and focuses on the issues that lead to addiction and criminal
behavior. A lot of time is spent on behavior modification. It is intense and
takes up a good part of the day. RDAP inmates have their own dorm within the
prison. RDAP inmates are held to a higher standard of behavior and if an RDAP
prisoner messes up or if the RDAP staff feels a prisoner is not responding to
the program, his graduation is delayed.
While prison life as an RDAP
inmate is slightly more unpleasant than for everyone else, the reward for
completing RDAP is time off from the sentence. The total time off is based on
the total length of the sentence. An inmate with a 36-month
sentence, before the good time reduction, is going to have his sentence reduced
by nine months for completing the program. In Cohen's case that means his 30-month
sentence will be lowered to 21 months. Beyond that, virtually everyone is
assured that the last 10% of their sentence be served under home confinement
where he is permitted to go to work every day. That takes Cohen down to 18
months in actual prison. Beyond that, everyone gets at least some time in a
halfway house setting where they go to work every day and go home for the
weekends. RDAP graduates need to spend part of their time in the halfway house
going through additional counseling. As a result, and because there is a belief
that addicts need more time to reintegrate into society, RDAP inmates generally get
more time in the halfway house than non RDAP inmates.
Based on what I have seen,
there is a better than good chance that Cohen will receive a least six months
of time in the halfway house in addition to his three months of home
confinement. Cohen will therefore likely serve about one year in actual prison
and a total of nine months in the halfway house or home confinement. To put it
another way, of the 36-month sentence handed down, only 33% of it will be
served in actual prison.
There is a weird quirk in the
calculation of time that a prisoner gets off for completing RDAP. On a 36-month
sentence, a prisoner is eligible for nine months off his sentence. However, on
a 37 month sentence he is eligible for a full year off his sentence. Had Cohen
been sentenced to one additional month, he would have been at 31 months
factoring in good time. He would have then had a full year taken off his
sentence for completing RDAP for a total sentence of 19 months instead of 21.
From there is would have taken the same 3 months off for home confinement which
would have taken him down to 16 months. If he would have received the same six
months of halfway house, he would have only done 10 months in actual prison. Of
course, that would have been contingent on his being admitted to RDAP as soon
as he arrives in prison since it does take over nine months to complete RDAP.
It also assumes he doesn't do anything to delay his completion of the program.
So, Michael Cohen got a pretty
good deal. He did what was best for himself and more importantly for his family
as do over 80% of all defendants. However, as I mentioned six months
ago, http://www.whitecollarguru.com/2018/07/michael-cohen-is-going-to-jail-and-it.html,
when I predicted Cohen would go to prison, life in prison is not going to
exactly pleasant for him. Being known as a snitch, even in a camp that could be
exclusively white collar, is not a label that any prisoner wants placed on him.
Yet Michael Cohen is going to enter prison as a snitch who tried to bring down
a President. So, while 36 is going to really be 12 it is going to be the worst
year of his life. Good Luck!
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