Rollback means Fla. drug offenders get early release

Federal Public Defender Donna Elm's office calculated that the sentence reductions in the Middle District of Florida will save taxpayers more than $21 million


By Elaine Silvestrini
Tampa Tribune

TAMPA — On Nov. 1, 120 federal drug offenders sentenced in Tampa will be released from prison as part of a rollback of federal drug penalties.

Among the prisoners tasting freedom will be Lucas Lopez, 86, and his son, Benito, 47, Miami commercial fishermen who have served 22 years of their 30-year sentences after being convicted of conspiracy to distribute more than 5 kilos of cocaine in Tampa.

For both men, it was their first conviction. Neither had any disciplinary issues in 22 years behind bars, according to their lawyer, Conrad Kahn of the Federal Public Defender’s office.

Maylin Lopez is thrilled she will soon be able to share her life with the father and brother who went away when she was 12.

“I really look forward to spending his last couple of years of life so I can share with him, my kids, their grandfather next to them,” said Lopez, who is now 34 with 4-year-old twins. “It’s been very hard for me just having my mother and my siblings.”

Lucas and Benito Lopez are among thousands of federal inmates benefitting from a Smart on Crime initiative from the Justice Department, with support from both political parties.

The initiative includes an increase in clemency reviews and a retroactive change in sentencing guidelines for drug convictions, known as Drugs Minus 2, allowing most drug offenders to receive lower sentences. The first prisoners to receive the reduction will be released on Nov. 1, with others following later.

The changes are fueled by desire for both justice and financial savings.

Federal Public Defender Donna Elm’s office calculated that the sentence reductions in the Middle District of Florida will save taxpayers more than $21 million.

Recently, officials calculated that the changes have shaved a total of 8,341 months — 695 years — from prison terms of inmates sentenced in the district.

“Based on the average cost of incarceration of inmates nationally, the work we have done so far under the 782 Amendment has saved taxpayers $21,283,347.40,” Elm said in an email to her staff. “There are many more cases we are still going through of course, and this number will grow substantially by the time we are done. “

“We don’t always think about that,” Elm told The Tampa Tribune. “You just think about the unfairness to the guys, but there’s a big unfairness to the taxpayers as well.”

Robert Weissert of Florida TaxWatch said Elm’s numbers are “fascinating.”

“The numbers are clearly impressive and that is consistent with the research we’ve found not only at the federal level but other states,” said Weissert, who is senior vice president for research at the organization, which supports sentence reform in Florida state courts. “We’ve seen those kind of things in states all over the country.

“This is just another example of how these kinds of reforms can really save taxpayer money,” Weissert said. “This is something Florida should look into.”

David Rhodes, chief of the Appellate Division of the U.S. Attorney’s Office, said the majority of inmates deemed eligible for sentence reductions are receiving them. A small number, he said, are being denied because of public safety concerns such as troubling criminal histories or disciplinary issues in prison.

Rhodes said the change will save taxpayer money in prison costs but will lead to other costs, likely not as high, such as expenses incurred when some of the released inmates commit new crimes. The change, Rhodes said, “wasn’t solely a cost-cutting measure.”

By the end of the year, 240 drug offenders sentenced in the Middle District of Florida will be released early, according to Joe Collins, chief probation officer for the district.

All of them will be on probation.

“A huge concern is how are we are going to supervise that many folks coming out at once,” Collins said. “A busy week for our division might be 15 to 20 (prisoners) coming out. So that is a concern for us to have 120 coming out” at once.

Collins said his staff has been preparing by examining caseloads. Where offenders were eligible to have their probation end early, that was done. Collins has hired three additional probation officers and may hire more.

He said the district is third in the country for the number of cases affected by Drugs Minus 2. He said officials expect that number to rise to at least 1,500.

Local law enforcement will be notified, as is always the case when specific individuals are to be released, Collins said. But there is no special plan to have law enforcement prepare for the expected influx of former inmates into communities. Any extra warning “I think would be prejudicial,” Collins said.

Elm said most of the offenders “do fairly well when they get out” and do not pose a problem for the community.

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Even as federal officials work through the petitions for release under the drug changes, they are preparing for the possibility of even more releases because of a decision by the U.S. Supreme Court in June that invalidated part of the Armed Career Criminal Act.

The invalidated provision had significantly increased sentences for felons in possession of a firearm with three previous convictions for qualifying offenses. The statute’s description of qualifying offenses included what’s called the “residual clause,” which is a broad category of offenses that “otherwise involve conduct that presents a serious potential risk of injury to another.” The Supreme Court ruled that clause is unconstitutionally vague.

Now offenders who were given long prison sentences because of previous convictions covered by the residual clause stand to be released early. Among the prior offenses now not covered under the law are assault and fleeing and eluding, Rhodes said. The courts have yet to rule on whether some other offenses will be covered, such as burglary and carjacking.

It’s not clear if the ruling will be applied retroactively, and authorities are still assessing its impact, but Rhodes said it is likely to be significant.

Even if the decision isn’t retroactive, it will apply in cases that were already under appeal on the issue, and Rhodes said there are quite a few of those in the Middle District of Florida.

The district stretches from Fort Myers to the Georgia border. Elm said most of the inmates being released under Drugs Minus 2 were sentenced in Tampa. More of them are from the Tampa area, she said, than the rest of the district combined.

Lucas and Benito Lopez were both convicted of conspiracy with intent to distribute 5 kilos or more of cocaine. Khan said case documents say Lucas Lopez used his fishing boat to serve as a lookout during narcotics shipments and his son introduced a federal informant to other members of the conspiracy.

The investigation culminated in a sting involving undercover customs agents who posed as suppliers.

“ I remember my mom getting a phone call in the middle of the night saying they had been arrested and I remember going through the trial,” Maylin Lopez said. “I was so young. I hardly knew what was going on exactly.”

She said the family believes her father and brother were set up by a friend of her brother’s. She said her brother was vulnerable to manipulation because he had a learning disability. He also needed money because he was going through a divorce, couldn’t afford a lawyer and was in danger of losing the ability to see his young daughter, she said.

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“Right away, his friend wrapped him around the finger and made it seem like it was something great that he was going to do,” Maylin Lopez said. Her brother, she said, “never had any drug issues. He’s never had any thoughts about drug dealing. Nothing like that. We’re a hard-working family.”

Since the men went to prison, the family had heard talk about potential changes in sentencing laws. “I never expected for it to really happen,” Maylin said.

The father and son used to be in the same federal prison in Miami, but the father was transferred recently to a camp across the street, Maylin Lopez said. Now they have different visiting days, which has made it hard on the family, especially Maylin’s 71-year-old mother, who has numerous health problems.

When he went to prison, Benito’s daughter was 2. Now, she’s 24 and a mother herself, Maylin Lopez said.

“A whole lot has changed,” she said.

“My dad is in complete shock” about the early release, Maylin Lopez said. “He’s really anxious to get out of there.” She said her father’s health is bad; he recently underwent heart surgery and is now waiting for treatment for prostate issues. He also needs total knee replacement surgery and has skin cancer from working for years as a fisherman.

“Health wise, he’s not all that good,” she said. “If he was home, I could take him to good doctors.”

Her father immigrated from Cuba and never became an American citizen, she said. She worries that with the changing political climate, her father might be deported after he is released from prison. “I just pray every day that it doesn’t happen,” she said. “He’s not a criminal. He didn’t kill anybody.

“My brother’s excited” about getting out, she said. “He wants to come home and spend time with me and my kids. He wants to see his daughter, his granddaughter. He wants to spend time with my mom.”

She said she’s planning a big celebration to gather all the extended family her father and brother haven’t seen for years. They’ll have paella, pork and black beans and rice, and lobsters and other seafood the men have been craving.

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