War on Sentences

Rethinking prison terms for nonviolent drug offenders

Like other mischievous boys growing up in the mid-1960s, Ricardo Vázquez was a bit of a rebel. When his younger sister started calling him “Chacho,” the nickname seemed to stick.

It's the same name federal undercover agents used when they pushed Vázquez to the ground at gunpoint and placed him under arrest for conspiracy to smuggle and distribute 650 kilos of cocaine. As handcuffs clicked tightly around his wrists in August 1990, Vázquez knew his desperate grab for a quick buck was over.

His regrets were well founded.

In the past four decades, political pressures and the war on drugs have led to harsh sentencing laws and the mass incarceration of Americans. In 2012, nearly 1 in 100 adults were held in jails and prisons around the United States.

Vázquez' own fate was sealed just five months after his arrest when a federal judge ordered the US Bureau of Prisons to incarcerate him for 30 years—25 years for the drug conspiracy and another five for a broken .22-caliber gun that agents had found during a vehicle search.

Sentence adjustments eventually trimmed his prison term by seven years, and after more than two decades behind bars, he moved to Santa Fe in 2013 when he was released from a federal prison camp in Colorado.

He still has nightmares about the justice he was dealt.

He's proof that strict sentencing laws impact even first-time offenders. In fiscal year 2013 in New Mexico alone, 455 federal defendants faced drug charges, 436 received prison time and 70 were given sentences of five years or longer.

Drug policy advocates, inmate families and politicians say that's too long. They're urging Congress and the US Sentencing Commission to reform sentencing statutes and advisory guidelines used by judges to determine punishments for nonviolent drug offenders.

Some work is already being done to improve the system. While it only scratched the surface last April, the commission voted to adopt reforms that shortened many drug-related sentences. In July, the same commission made their decision retroactive to cover inmates already serving time as long as Congress didn't block the reform package they dubbed "All Drugs, Minus Two." The name explains that it dropped sentences by two levels on a complicated matrix that considers the weight and quantity of drugs, a defendant's criminal history and other factors.

When Congress took no action, 89 New Mexican offenders became eligible for release this November. They're among an estimated 7,953 offenders nationally who could go home starting in the fall. A total of 46,376 offenders stand to benefit from the commission's retroactive amendment over time.

Reformers are hopeful that with broad bipartisan support, Congress will act, and they seem to be encouraged that US Attorney General Eric Holder has given Department of Justice prosecutors guidance to reduce the number of people who get charged with crimes that carry mandatory minimum sentences.

Rethinking prison terms will help the Bureau of Prisons gain control of its $6.4 billion budget, curb overcrowding and lessen the impact of strict sentences on inmates and their families' lives.

Putting people in lockup, activists contend, hasn't reduced drug use in America and new dealers take to the streets almost as soon as another pusher gets popped.

For reformers, costly prison terms simply don't add up.

Researchers tracked inmates released after the Sentencing Commission adjusted crack cocaine sentencing guidelines in 2007 and found no evidence that the offenders were re-arrested at a higher rate than other convicts who were released after completing longer sentences.

"We get no additional improvement in recidivism rates whether we punish offenders for five or 10 years. So why are we spending more and more money to keep people locked up?" asks Molly Gill, government affairs counsel for Families Against Mandatory Minimums.

As the cost to house each inmate reaches $30,000 a year, Gill says, the money spent for incareration could be used instead on police and protecting the public from violent offenders. A Los Alamos High School graduate, Gill, who now works in Washington DC, has lobbied Congress for realistic sentences and "justice that fits the crime."

She tells SFR that after last year's reform, the average sentence for eligible convicts will lose 25 months. Over the next six years, another 293 New Mexicans will become eligible to petition for early release.

But getting out early isn't automatic. Inmates still have to complete the mandatory portion of their original sentences. They're only eligible to have months and sometimes years knocked off after their sentencing judges look at new advisory guidelines, check disciplinary reports and agree to sign release petitions.

Michael Lovato, a convicted cocaine dealer from Santa Fe, for example, could benefit from the new "All Drugs, Minus Two" adjustment. He was arrested by Santa Fe police during a search warrant raid on Aug. 17, 2011.

Inside his southeast side apartment in the 2300 block of Camino Capitan, cops found approximately two ounces of cocaine, five ounces of crack and a loaded 9 mm Smith and Wesson. They also found a scale and plastic baggies associated with drug distribution.

Initially, Lovato faced up to 40 years in prison, but accepted a plea agreement from federal prosecutors. When US District Judge Judith Herrera sentenced him in April 2013, she gave Lovato the statutory minimum of five years, and tacked on three additional months after reviewing his presentencing report.

Lovato's defense attorney Robert Gorence, a former federal prosecutor himself, says incarceration for most defendants isn't working.

He's not a drug decriminalization advocate, but thinks people take plea deals that include mandatory sentences in order to avoid even longer sentences, which he calls "unduly punitive."

"Everyone has a constitutional right to a trial," says Gorence. "There were issues I wanted to raise at Michael's trial, but I couldn't guarantee him anything. The consequence of a guilty verdict would have been a 10-year mandatory minimum, double what prosecutors offered to him."

Human Rights Watch, an international group that investigates human rights abuse, describes the process as prosecutorial "coercion."

Drug offenders suffer a trial penalty, according to the group's analysts.

Their research, showed 97 percent of defendants who pleaded guilty received, on average, 64 months in prison, compared to 16-year sentences given to defendants after a trial conviction.

Those statistics don't sit well with Jamie Fellner, a senior advisor at Human Rights Watch.

"We don't let police beat suspects to get confessions," says Fellner. "Threatening someone with a life sentence can be just as coercive—and just as wrong."

The adjustments made by the commission last year, Gorence says, are "just a minor tweak." He understands prosecutors take an oath to zealously prosecute crimes but thinks Congress should consider additional reforms.

In reality, he says, "It's just easier to lock people up."

As an alternative, Gorence thinks drug offenders would respond well to prison diversion programs and strict federal probation officer supervision.

A majority of Americans polled for the Pew Center on the States agree with him and want some of the money currently being spent to lock up low-risk and nonviolent inmates to be shifted to community corrections programs. The same poll showed voters think, on average, that about a fifth of prisoners could be released without posing a threat to public safety.

While policy changes are debated, Gorence is hopeful that Judge Herrera will sign Lovato's petition and allow him to be released in May 2017.

Lovato's father, who still lives in Santa Fe, said he didn't want to talk about the possibility yet, but while he waits for his son to return home, officials are getting ready for inmates who will be released this fall.

The Federal Public Defender Office in Albuquerque and the US Bureau of Prisons have set up a petition process for inmates, and the US Probation and Parole Office in New Mexico is still determining what resources it will need to assist the men and women transition back into the community, including hiring new probation officers, arranging for halfway houses, educating employers about tax credits for hiring felons and signing inmates up for social and medical services.

When Vázquez, 65, was first released, he had to catch up on 23 years of technology, learning how to use a smartphone, for example. Married now and working at a Santa Fe-area grocery store part-time, he likes living close to the sister who gave him his moniker decades ago, US District Judge Martha Vázquez.

She was appointed to the federal bench in New Mexico in 1993 by President Bill Clinton, three years after her own brother was incarcerated.

Like other federal judges, she's been obligated to sentence offenders in her second floor Santa Fe courtroom to long prison terms. With scant exceptions to mandatory minimums, her hands are often tied by statute.

In 2013, less than half of one percent of New Mexico drug offenders charged with a crime carrying a mandatory minimum received any downward departure during their sentencing.

US Attorney for New Mexico Damon Martinez has suggested that substance and drug abuse be treated as a public health issue. "We cannot simply arrest our way out of the drug problem," Martinez said at an opioid-abuse summit in Albuquerque on Jan. 8.

As an alternative to expensive incarceration, Martinez said he is hopeful that national and local initiatives will put more defendants into drug diversion programs and help newly released inmates return to productive lives.

Vázquez never gave up hope that he'd get a shot at rebuilding his own life, which was nearly ruined after a job layoff first led him into the drug world and then behind locked gates for more than two decades.

He had started working when he was just 14 years old and after graduating from high school landed a job at Jumbo grocery to help pay his way through Sacramento State college.

Vázquez admits smoking a little marijuana with friends, "but I never touched narcotics."

As he worked his way up to assistant manager, Vázquez earned "good money" but was forced to scramble when Jumbo closed and laid him off. For months, Vázquez said he sent out a hundred applications, but the only employment offers he got were out of state. Divorced, Vázquez didn't want to leave his children behind.

Under pressure to provide for his family, Vázquez says a friend offered to introduce him to some people he claimed were in the drug business.

"I was scared," he says, remembering feeling desperate. "I knew that if I got involved that I'd get busted."

Putting fear aside, Vázquez and his new friends started crossing the US-Mexico border to see if they could set up a big connection. A "snitch," Vázquez claims, introduced them to a group of men, who turned out to be the Drug Enforcement Administration agents. They offered to sell them a big load of Colombian cocaine.

Vázquez hoped a huge payday was ahead, but months went by and nothing seemed to happen.

"We'd always get cold feet. Every time I backed out they'd come back and offer us a lower price for a larger quantity of drugs," says Vázquez, who is bilingual and handled most of the communications, making him the de facto leader in the agents' minds.

After his conviction, Vázquez spent time in five different federal facilities around the country. When he was transferred to La Tuna federal prison, a low-level security men's facility in Western Texas, officials segregated him.

"They were worried some of the inmates might retaliate against me because my sister had sentenced them," he says, noting that nothing like that ever happened. For Vázquez, a decade behind bars would have been a fair sentence for his crime.

"I learned my lesson after 10 years," he says.

Over time, "tough on crime" campaigns by politicians convinced voters that long-term incarceration was the best method to control crime in their neighborhoods. Carlton Turner, the country's first drug czar, insisted drugs had increased anti-authoritarian attitudes and anti-government demonstrations. Marijuana smoke, parents believed, had had made their teens lazy and unmotivated.

Blind justice gave way to the new longer sentences. At the same time as the well-funded war on drugs marched on, the growth of incarceration in the United States exploded to historic levels. Federal prison populations jumped from 25,000 in 1980 to over 219,000 in 2013, according to findings from Congressional Research Service.

Former New Mexico Gov. Gary Johnson says the adjustments made last year are a start, but "we need to stop locking people up for nonviolent drug crimes."

He predicts California will join the tide of states repealing marijuana prohibition, and the movement will have reached critical mass.

"Once they legalize it, I think 23 other states will quickly follow their lead," says Johnson.

Last fall, Californians approved a ballot initiative reducing drug possession felony penalties to misdemeanors. People caught with pot and hard drugs, like heroin, cocaine and methamphetamines, now face lesser charges.

US Sentencing Commission data show the "All Drugs, Minus Two" program could have a huge impact. Currently, the average sentence for drug offenders is 133 months, or 11 years and a month. Once the new guidelines are applied, the average sentence will drop about 19 percent to 108 months—a difference of more than two years. When applied to all the federal inmates, the change equals nearly 80,000 years.

That will save taxpayers billions.

Between 2000 and 2013, the cost to incarcerate a single inmate for a year increased from $21,603 to $29,291. During the same time period, appropriations for the Bureau of Prisons grew from $3.7 billion to $6.4 billion.

The rising costs have also made it difficult to operate prisons, recruit and pay guards and provide health care for the aging population of convicts.

The federal prison system is increasingly overcrowded. In 2013 the prison system was 36 percent over capacity. In medium and high security men's facilities, capacity was between 45 percent and 52 percent greater than it should have been.

Overcrowding can lead to inmate misconduct. Inmates who rioted at the New Mexico state pen in 1980, for example, named overcrowding as one of their primary complaints. The bloody takeover left 33 accused snitches dead. The growing prison population is also taking a toll on federal prison infrastructure. Modernization and repair projects are estimated to cost $342 million.

The cost to construct new prisons haunts reformers and fiscal hawks. They prefer alternative programs for nonviolent drug defendants.

"It's absolutely the right thing to do," says American Civil Liberties Union New Mexico Director Peter Simonson. "Excessively harsh penalties for nonviolent drug offenses criminalized millions of Americans and created the largest prison population in the world.

"It is past time for us to end our failed and senseless war on drugs and start fixing the damage prohibition has caused to the social, economic and legal fabric of our country."

Teamed up with the ACLU and the National Association of Criminal Defense Lawyers, even ultraconservative Charles Koch wants mandatory minimum sentences eliminated "because they're used to dictate punishment unrelated to the nature or harm of the underlying crime facts."

Koch contends America is being overcriminalized. Less than two weeks ago, Time magazine reported that Koch, usually at odds with the Obama administration, is also pushing wide-scale criminal justice reforms in part to ensure "indigent defendants receive adequate legal counsel" and looking for the best way to restore rights to juvenile and nonviolent offenders. Koch also said programs are needed to help inmates reenter the job market after their release from prison.

New Mexico congressional leaders Sen. Martin Heinrich and Rep. Ben Ray Luján, both Democrats, also think long mandatory minimum sentences should be reserved for the most serious criminals.

Judge Vázquez agrees with them.

"It's one thing to impose a sentence," she tells SFR. "It's another thing to decimate people's lives."

Heinrich has supported legislation that would ease mandatory minimums for low-level, nonviolent individuals convicted of drug-related offenses and co-sponsored legislation the Congressional Budget Office estimated would trim $4.3 billion off the federal prison budget.

The bill from Sen. Dick Durbin, D-Ill., and Sen. Mike Lee's, R-Utah, won't repeal mandatory minimum sentences for drug convictions, but would allow judges to determine a sentence based on an individual's circumstances.

Their measure passed the US Senate Judiciary Committee, but faced stiffed resistance from the DEA and never got a floor vote. Reformers hope it's reintroduced during the 114th Congress.

Heinrich says American justice has been too reliant on prison time for small-time drug offenders.

"The result is that the United States has the highest incarceration rate in the world. This has cost all of us billions of dollars in real money each year and imposed incalculable social costs that have come from an over-reliance on incarceration," Heinrich writes in an emailed statement to SFR.

After looking at the impact long sentences have had on people and communities in his district, Luján says reform is important.

The new chairman of the Democratic Congressional Caucus wants to figure out how to reduce crime and ensure people who struggle with substance abuse still get the help they need.

"A serious discussion is needed in Congress about the best solutions to prison overcrowding, the disproportionally high rates of incarceration in minority communities and how mandatory minimum sentencing interacts with these issues," he writes. "We must consider how best to address this challenge, including changes to mandatory minimum sentencing."

Luján and Heinrich both suggest treatment and rehabilitation would be a better option to serving time for most drug offenders.

Diversion might have been a better option for Vázquez and his children, who, he says, forgave him years ago.

"We have great relationships. They're my best friends," says Vázquez.

Well, almost besties.

As Valentine's Day approaches, Vázquez, grateful to be free again, is going to buy his wife, Tammy, a gift and a romantic dinner.

"It's been a challenge for her, based on the mistakes in my background," he says, planning to surprise her with a big bouquet of flowers.

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