Commentary

Dying in Prison for Love of Family

As we wrote last week (“A Slow, Lonely Death in Prison”), it is hard to understand why the Federal Bureau of Prisons (BOP) denied 94-year-old prisoner Carlos Tapia-Ponce’s request for a compassionate release earlier this month. Federal law gives the BOP authority to petition a court for a compassionate release/reduction in sentence (CR/RIS) if certain criteria are met.

Since 2013 two wardens have twice recommended Tapia-Ponce for a CR/RIS, but the BOP’s assistant director and general counsel, Kathleen Kenney, denied the request each time. While Tapia-Ponce’s second request for a CR/RIS was still pending, he was transferred to a BOP medical facility in North Carolina, where he suffered another heart attack.

Kenney’s latest denial letter states that Tapia-Ponce “meets the criteria for a RIS,” noting his medical history of congestive heart failure and prostate cancer. Nevertheless, Kenney’s letter explains that the compassionate release request was denied because “Tapia-Ponce was the head of a family-based organization that was responsible for transporting 42,800 pounds … of cocaine into the United States.”

The real reason why Tapia-Ponce’s CR/RIS was denied is because it is being opposed by Eileen Decker, the U.S. Attorney for the Central District of California in Los Angeles. Given the fact that murderers are routinely granted reductions in their sentences for testifying in federal prosecutions, Decker’s opposition can be attributed to Tapia-Ponce’s refusal to act as a cooperating witness for the U.S. government.

At Tapia-Ponce’s initial bail hearing in 1989, the prosecutor told the court that he was at “the top hierarchy” of a smuggling ring that transported several thousand pounds of cocaine a week into the U.S. In reality, Tapia-Ponce was a salaried, midlevel, supply-chain manager of an El Paso-to-Los Angeles drug transportation network run by Juarez, Mexico, and Colombian drug cartels. The 68-year-old retired Mexican customs official had no prior convictions at the time of his arrest and was never accused of any violence.

After his arrest, Tapia-Ponce told DEA agents that he received $5,000 per shipment of cocaine and that he wanted to cooperate with authorities, but was concerned about his family and did not know how to cooperate. None of that information made it into the presentence report (PSR) relied on by Los Angeles U.S. District Judge Terry J. Hatter Jr. when he sentenced Tapia-Ponce to life in prison following his conviction on two counts of drug trafficking.

A PSR normally provides the judge with a version of the facts gleaned from federal agents and prosecutors. It includes a recommended sentencing range based on complicated guidelines. Tapia-Ponce’s PSR called for a sentencing range of between 24 to 30 years, not life.

It is the defense lawyer’s responsibility to provide the PSR writer with information that would mitigate the seriousness of both the offense and his client’s role in the offense. A defense attorney should also file objections to the PSR when it contains mistakes of fact or errors in the range of sentence recommended by the guidelines.

Tapia-Ponce’s defense lawyer, who was hired by his bosses in the Juarez cartel, failed to file a sentencing memorandum, or an objection to the PSR. Had the lawyer provided information to mitigate the seriousness of Tapia-Ponce’s role in the offense, or explain the reason why he had refused to cooperate with the government, Judge Hatter might not have departed upward from the guideline’s recommendations to impose a life sentence.

Tapia-Ponce’s life sentence was later reversed on appeal because Judge Hatter had considered improper factors in imposing the sentence. But on resentencing, Judge Hatter again sentenced Tapia-Ponce to life in prison without parole. Tapia-Ponce’s lawyer failed to attend his resentencing, instead allowing a co-defendant’s attorney to represent his client as the second life sentence was imposed.

Tapia-Ponce says that since his resentencing, he has been visited in prison twice by DEA agents who have offered him a reduced sentence in exchange for his cooperation in investigations of the Juarez drug cartel and corrupt U.S. Customs officials. Each time he told them he was willing to cooperate if they would protect his family by getting them out of Mexico. They refused his request.

Michael Pancer, the criminal defense attorney who represented Tapia-Ponce at his second sentencing in 1993, said there is no question that Tapia-Ponce had enough information about midlevel members of the Juarez cartel to receive a significantly reduced sentence in exchange for his cooperation. However, the reduced sentence would come at a heavy price.

“Everyone involved in the criminal justice system knows that defendants in large drug conspiracy cases who testify against members of a drug cartel put their families at risk,” Pancer said. “If someone cares about what happens to their family, cooperation is impossible.”

Seven months after Tapia-Ponce was sentenced to life in prison, Jose Cabrera took the witness stand against Gen. Manuel Noriega, the deposed Panamanian leader who was on trial for drug trafficking charges in a U.S. court in Miami. Like Tapia-Ponce, Cabrera was also involved in the distribution of cocaine for cartels, but at a much higher level and on a much larger scale. The government estimates that Cabrera made more than $40 million transporting cocaine. After he testified against Noriega, Cabrera’s life sentence was cut to nine years at the request of prosecutors.

On July 10, 1992 – a year and a half into Tapia-Ponce’s life sentence – Noriega was sentenced to 40 years in prison on eight counts of drug trafficking, money laundering and racketeering. In 1999, his sentence was reduced to 30 years.

“Basically, we are talking about getting out of jail at a time where he can still enjoy life,” Frank Rubino, Noriega’s defense lawyer, said at the time. “He then can enjoy his wife, his family, his grandchildren.”

Carlos Tapia-Ponce’s wife died while he was serving the first 26 years of his life sentence. He has grandchildren he has never met. He has six daughters who love him and are willing to care for him in Mexico upon his release. Unless someone shows him some mercy, he will never see any member of his family again before he dies in prison.

A petition urging President Obama to grant Tapia-Ponce clemency can be found at: ClemencyForCarlos.com.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.