Commentary

A Slow, Lonely Death in Prison

In April 2014, President Obama’s Justice Department announced plans to raise an army of volunteer lawyers to assist federal prisoners in seeking a reduction of their draconian drug war sentences. Clemency Project 2014 (CP2014) was launched as the flagship of Obama’s criminal justice reform effort, dubbed the Smart on Crime Initiative.

The Justice Department tapped the National Association of Criminal Defense Lawyers (NACDL) to lead a group of five public interest organizations in administering the project. At the time, NACDL President Jerry Cox proclaimed that the project’s launch “marks the beginning of the end of the age of mass incarceration.”

“I call upon the nation’s lawyers,” Cox said, “to rise to this challenge in an unprecedented effort to restore hope and the prospect of an early return to freedom for the countless deserving individuals who are languishing in federal custody.”

One of the attorneys who answered CP2014’s clarion call was Ellen Lake, an experienced sole practitioner with a civil appeals practice in Oakland, California. Having never handled a criminal case before, Lake expected to be assigned a client with a routine claim; perhaps one of the many federal prisoners who were left behind when the sentencing laws were changed to eliminate the racial disparity between crack and powder cocaine sentences.

Instead, she was assigned the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.

Tapia-Ponce was essentially the salaried quartermaster or supply chain manager for the U.S. end of a Juarez, Mexico/Colombia drug transportation network. The government offered no evidence during his trial and made no claims at his sentencing that he was involved in violence or had even used firearms in furtherance of the conspiracy for which he was convicted.

What Lake didn’t expect was the stubborn resistance she encountered as she tried to pursue justice for an old man she believes doesn’t deserve to die in prison. After spending hours reviewing her client’s case file, Lake submitted Tapia-Ponce’s clemency petition to CP2014. She was informed that Tapia-Ponce’s case didn’t meet the criteria for submission to the Justice Department under the auspices of CP2014.

Lake could have ended her involvement at this point, but she refused to abandon her client. Instead, she traveled at her own expense to meet with Tapia-Ponce at the federal prison in Jessup, Georgia, and submitted the clemency petition directly to the DOJ’s Office of the Pardon Attorney. At the same time, she continued to pursue a compassionate release for Tapia-Ponce through the BOP.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

According to a 2015 DOJ Inspector General’s Report on “The Impact of an Aging Inmate Population on the Federal Bureau of Prisons,” it costs the BOP $50,000 a year or more to house elderly inmates with Tapia-Ponce’s medical problems. The letter of denial coldly conceded that Tapia-Ponce meets all of the BOP’s criteria for a compassionate release, but still refused to release the 94-year-old prisoner to the care of his family.

At the time of his arrest in 1989, Tapia-Ponce was a 68-year-old retired Mexican customs official with no prior criminal convictions. He had been married to his wife for 40 years, had two sons, six daughters and many grandchildren. The pre-sentence report prepared in 1991 notes that he “had a wonderful relationship with his family,” and that his “family is the most important thing to him.”

Tapia-Ponce has now served 26 years in prison, during which time his wife has died. He has not seen any members of his family since his arrest. However, every week for the past 26 years, his daughters have gathered together in Juarez and spoken with their father over the telephone. What possible benefit is it to the U.S. government or any of its citizens to continue to pay for the medical care of a 94-year-old nonviolent inmate who has a loving family willing to care for him in Mexico? How does it make Americans any safer to subject this man to the torture of a slow, lonely death without the care and comfort of his family?

Shame on Obama’s Justice Department for such a callous lack of basic human decency.

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.