If you want a picture of the future, imagine a boot stamping on a human face—forever. – George Orwell
Hundreds of Florida inmates are serving drug sentences no longer in state law
Florida lawmakers agreed the state’s old drug sentencing laws went too far. But that means nothing to people serving time.
By Emily L. Mahoney for the Tampa Bay Times
GADSDEN CORRECTIONAL FACILITY — It’s not enough that Jomari DeLeon calls every day, asking her 8-year-old daughter about school and reminding her that “mommy misses you.”
The child still asks when she’s coming home, believing her mom’s been gone all these years because of a stint in the military. That would explain the barbed wire surrounding the compound that she visits every month.
In reality, DeLeon is four hours away in this privately run women’s prison in the Panhandle town of Quincy, serving the third year of a 15-year sentence.
If she had committed her drug crime in 2016, rather than eight years ago, she would be free by now.
Up to 1,000 Florida inmates find themselves in the same legal purgatory.
An obscure clause in Florida’s Constitution dating back to the Jim Crow era has kept DeLeon and others like her stranded behind bars. And even after Florida voters repealed that clause last year, the state Legislature has not put it into action.
At DeLeon’s final sentencing, the frustrated judge shook her head. DeLeon had no previous criminal record beyond a traffic violation.
But, the judge explained, she had to give the mandatory sentence from when the crime was committed. The law was the law, an explanation DeLeon keeps hearing even as state legislators eased sentencing for drug offenses over the last five years.
For DeLeon to go free, the Legislature responsible for her plight must do something to fix it.
• • •
In the 1990s, the state Legislature was determined to get tough on crime.
After years of fighting cocaine-fueled violence in South Florida and a crack epidemic, Florida also held an ugly distinction: the nation’s highest violent crime rate.
State Rep. Victor Crist, a Republican from Tampa, proposed a law that would impose severe penalties for repeat violent offenders, as well as predetermined sentences for people convicted of trafficking drugs. These would become widely known as “mandatory minimums.”
At the time, Crist said drug lords were his target.
“We’re not talking about the guy who’s merely carrying a few joints in his pocket,” he told a House committee in February 1999. “We’re talking about the person who’s growing three barns full of marijuana or bringing in a boatload of cocaine.”
The bill passed the Legislature with bipartisan support.
Across the state, public defenders prepared for their caseloads to surge.
“All of a sudden regular people who had pain issues and maybe couldn’t get pills or bought them on the street … were suddenly being called ‘traffickers,'” said Howard Finkelstein, the Broward County public defender. “It’s almost the antithesis of what trafficking is.”
It took more than a decade, long after a nationwide opioid epidemic took hold, for the state to assess the impact of Crist’s legislation. Then, in January 2012, the Florida Legislature’s own policy research office issued a stinging indictment of the law, saying it went far beyond its intended scope.
The report found that the penalties for possessing or selling hydrocodone and oxycodone, known by brand names like Vicodin and OxyContin, led to a dramatic spike of new inmates. Most of those being convicted for opioid trafficking, the report concluded, were addicts, not top-level dealers.
Of the 1,200 cases the report analyzed, 74 percent of the inmates had never previously been to prison.
• • •
In 2011, DeLeon gave birth to a girl she named Lunexys.
She cared for the child between part-time shifts as a cashier at an Irish pub in Downtown Disney — the only source of income for her family after her husband lost his job.
Then Antwon Brown crashed into her life.
He was someone she only knew as a Facebook friend, she said. Before money got tight, Brown had posted that he was selling pit bull puppies. DeLeon couldn’t resist and put down a $100 deposit.
Unable to afford the rest, however, DeLeon told Brown she needed her money back.
Brown proposed something else.
What if, rather than handing her back the $100, she sold a few pills? He knew a dealer from Atlanta looking for people who could get access to drugs. DeLeon could turn a profit.
She refused. It was too risky. She’d never done anything like that.
But after weeks of texts and calls wearing down her resolve, DeLeon agreed to sell drugs. She convinced a neighbor to give her leftover painkillers from a recent surgery, promising a share of the proceeds.
Brown coached her on how to act, how to talk. The Atlanta dealer needed to think she was for real, Brown told DeLeon.
On Dec. 7, 2011, at 1:32 p.m., DeLeon met the dealer in a Kissimmee Publix parking lot packed with shoppers. DeLeon slipped out of her station wagon before opening the passenger-side door of a silver sedan.
Inside the car, the dealer chatted with DeLeon, asking her what other drugs she could get. DeLeon hesitated at first, but grew more bold, offering future deals of Xanax, Roxicodone.
Then DeLeon poured 18 hydrocodone tablets into her palm, white ovals with “M357” imprinted on them. She handed them over, then took the $75 in cash.
The dealer told her to keep in touch.
“I’m good money,” she told DeLeon.
The ease of the cash was seductive. Less than 10 minutes after the sale, DeLeon texted the dealer and told her she could get more pills.
She sold 30 more hydrocodone painkillers the next day for $150.
But then she snapped out of it. Her debt recovered, she was determined never to sell again. DeLeon changed her phone number so the dealer wouldn’t be able to reach her.
What she didn’t know was both deals — a grand total of 48 pills for $225 — had been captured by a camera in the ceiling of the car.
• • •
Months passed.
Her husband, a man with his own history of drug charges, got back to work at a new restaurant. They started attending church. A talented painter, DeLeon dreamed of one day becoming an artist.
By May 2013, DeLeon had saved enough to buy an iPhone from a resale website. It didn’t work. Suspecting a scam, she called the police.
The phone call would change the rest of her life.
When the Osceola County Sheriff’s officer arrived at her house near Kissimmee, DeLeon was bathing her daughter, then 2. After running her license through the system, he asked to speak with DeLeon outside.
There was a warrant for her arrest, the officer said, on charges of trafficking drugs.
As he clasped the handcuffs on her wrists and drove her to jail, DeLeon wept.
“In my mind, ‘trafficking’ was like moving weight across the border,” she said. “I didn’t think that Vicodin was a serious drug.”
DeLeon called her parents from jail, terrified. Her mind spiraled. This would go on her record. Maybe she’d lose her driver’s license. Maybe she’d go on probation.
But as she waited in jail, other prisoners spelled out a harsher reality: The number of pills she sold would determine how long she’d spend in prison.
Under Florida law in 2013, the possession or sale of about 22 hydrocodone pills — less than one prescription’s worth — would trigger a trafficking sentence of 15 years, a “mandatory minimum” from Crist’s legislation.
“I started freaking out,” DeLeon said.
Soon, she would learn that the Atlanta dealer who purchased the pills was an undercover cop. And Brown, who had convinced her to sell the pills, was a confidential informant who had pushed the deal so that he could avoid serving time for his own drug charges.
At trial, DeLeon’s attorney argued she had been coaxed by Brown to commit a crime she never would have considered without his direction. But the jury found her guilty.
As she waited in jail to be sentenced, a routine urine test revealed she was pregnant again. A jailhouse ultrasound revealed twins.
After her lawyer exposed a procedural error in the selection of jury members, DeLeon was granted a new trial.
This time, prosecutors offered a deal: Plead guilty and serve three years.
Her parents implored her to take it. Her lawyer called it “the bargain of the century.”
Yet as her belly grew, dwarfing her 5-foot-2 frame, DeLeon’s initial resolve to accept the deal vanished. When her boys were born in October 2015, and she held them in her arms, she knew she couldn’t leave them. DeLeon slipped into a severe postpartum depression. The trial felt like a monster she had to slay so she could raise her children.
She refused the deal.
• • •
Similar drug cases were playing out across the state.
In Orange County in 2009, a man named William Forrester was handed a 15-year sentence for oxycodone trafficking after he was caught falsifying prescriptions to support his habit.
“We get the addicted, and we get the organized crime, all treated the same under the wording of the Legislature,” the judge said during Forrester’s sentencing. “We have to enforce the laws, and we’re stuck with them.”
In 2010, a woman named Nancy Ortiz asked an Osceola judge that rehabilitation be included in her sentence to ease her addiction to crack. She had sold two bottles of hydrocodone pills to an undercover cop.
The judge sentenced her to 25 years.
“I take no pleasure in imposing this sentence,” the judge told Ortiz. “But I don’t have any discretion in the matter.”
For years, people caught with prescription painkillers in Florida received tougher penalties than those with the same weight in street drugs. In some cases, they received five times the sentence because that’s what the law required.
Compounding that fact was the way the weight of prescription drugs is calculated: Florida law counts the weight of the entire pill as if it were all hydrocodone or oxycodone, when in fact the opioid drug is a small percentage of each pill’s total weight.
Vicodin pills, for example, have 5 to 10 milligrams of hydrocodone combined with 300 milligrams of acetaminophen, the active ingredient in Tylenol. That means that while 28 grams of cocaine can make 300 lines of powder, 28 grams of hydrocodone, as the law defines it, is around 44 pills.
Alarmed by these inequities, public defenders from around the state went to Tallahassee to lobby the Legislature to change the law — not long before DeLeon’s case headed to a second trial.
At first, lawmakers resisted, said Bob Dillinger, who’s been the elected public defender for Pinellas and Pasco counties since 1997. To get elected, members from both parties swore they were “tough on crime.”
“What we’ve been trying to explain to the Legislature is, yes, people need to be punished for breaking the law,” Dillinger said. “But don’t take a sledgehammer to a fly.”
Even the state prosecutors’ association — those pursuing convictions for drug crimes — joined the public defenders in pursuit of lighter sentences for those selling prescription pills.
Finally, lawmakers listened.
Sen. Rob Bradley, R-Fleming Island, a former prosecutor, sponsored a bill in 2014 that increased the number of hydrocodone or oxycodone pills needed to trigger the lengthy mandatory sentences. To get 15 years for hydrocodone, for example, would now take about 77 pills, rather than about 22.
In a recent interview, he called the 1990s drug thresholds “draconian.”
• • •
When she heard about the change in the law, which meant that the weight of pills she sold would no longer qualify for 15 years, DeLeon filled with hope. Despite advice from her lawyer that the new law would not apply to past cases, she couldn’t fathom why she would be sentenced under a law that wasn’t in effect anymore.
Boosting her odds in the second trial was that Brown agreed to take the stand. He told the jury that he had acted selfishly when he enticed DeLeon and wanted to make clear his role in her crime.
“When heat was put on me to make a (drug) deal, I took the heat on whoever I could. And she was one of the main ones,” he told the jury.
Closing arguments came in March 2016. The state prosecutor instructed jurors that they must apply the law even if they “feel sorry for her.”
Jurors deliberated for less than an hour. They kept returning to the surveillance videos as proof of DeLeon’s willingness to sell.
Their verdict: guilty of two counts of trafficking in hydrocodone.
Still, when DeLeon walked into the courtroom a few weeks later for sentencing, she felt somewhat assured. She sat before the judge waiting for the three-year sentence she had convinced herself she’d get. She closed her eyes, silently asking God for help.
Instead, DeLeon felt her body go cold as the judge announced her sentence. Because her crime took place in 2011, three years before the law was changed, the mandatory sentence was 15 years.
She sobbed, standing at the lectern in the courtroom, handcuffed, shackled at the ankles, begging.
“Your Honor, I know I made a mistake,” she said. “The new law is all I’m asking for, please. My children need me.”
Judge Leticia Marques told DeLeon that she wished she could sentence her to three years.
“I don’t have any choice whatsoever,” she said.
• • •
The Legislature’s 2014 law could not apply to DeLeon’s sentence because, at the time, the Florida Constitution explicitly prohibited changes in sentencing laws to apply retroactively.
Florida was the only state with such a strict prohibition enshrined in its state constitution. The clause was adopted in 1885, at the beginning of the Jim Crow era, when other constitutional additions included poll taxes, school segregation and a ban on interracial marriage.
But the clause caught the attention of Sen. Darryl Rouson, a Democrat from St. Petersburg, who said the Legislature’s “change of heart” over drug sentencing should apply to current inmates.
“As we evolve as a society, we go through cycles of ‘Lock ’em up, throw away the key,’ (and) the realization that rehabilitation should be brought back,” he said.
Rouson himself is a recovering cocaine and alcohol addict with a phone app that tracks each day he’s been sober. It recently surpassed 21 years.
Last year, as a member of the Constitution Revision Commission, Rouson sponsored a repeal of what’s called the “savings clause” onto the 2018 ballot. It was combined with two unrelated proposals, which both purged outdated language, to form Amendment 11.
Voters approved Amendment 11 last year. At Gadsden Correctional Facility, it was cause for celebration.
Another prisoner serving 15 years, also for hydrocodone, told DeLeon that the change in Florida’s Constitution could mean their freedom.
“This is exactly what’s going to help us get out of here,” she told DeLeon.
DeLeon’s family was so excited for her re-sentencing hearing, they started preparing for her to come home, buying canvasses for her to paint.
In July, however, the judge explained his hands were tied. Her motion for a new sentence was denied because state lawmakers first need to lay out a framework for judges to follow.
It’s unclear when, or if, lawmakers will do so.
Earlier this year, lawmakers again increased the number of hydrocodone pills required to trigger mandatory sentences.
Bradley, the state senator who sponsored the 2014 drug sentencing change, said he would be open to easing sentences for old drug cases. But he said he doesn’t consider it a priority.
In the Florida House, Rep. Robert “Alex” Andrade, a Republican from deep-red Pensacola, recently filed a bill that would further alter prescription trafficking sentences — and would allow judges to re-sentence some inmates like DeLeon.
Still, Andrade doubts that piece will receive enough support.
“I’m not sure retroactivity is likely to pass,” he said. “But it’s something we should be talking about.”
Phil Archer, president of the Florida Prosecuting Attorneys Association said he’s open to discussing retroactivity laws. Pinellas Sheriff Bob Gualtieri, president of the Florida Sheriff’s Association, said he is, too.
But without a groundswell for the bill, lawmakers aren’t inclined to support it, said Sen. Jeff Brandes, R-St. Petersburg.
“It’s so easy to maintain the status quo (because) frankly, there hasn’t historically been a public outcry to modify the system,” he said. “The challenge is the Legislature stands up and says, ‘We got it wrong. We need to modify this — but it doesn’t apply to you.’”
Hundreds of people like DeLeon are in prison serving outdated sentences for hydrocodone or oxycodone trafficking that would not have been handed down if they committed the same crimes today.
One analysis by the Crime and Justice Institute, a nonpartisan group that’s done policy analysis for the Florida Senate, found that up to 640 current inmates fall into this category, while researchers with the Project on Accountable Justice housed at Florida State University found up to 935 inmates. Both estimates have not been previously published.
For one year, it costs Florida $20.7 million to incarcerate 935 people, according to “full operating cost” data from the Department of Corrections. Multiply that expense over their entire sentences, and the cost to taxpayers balloons to more than a hundred million dollars.
• • •
Despite the string of setbacks, DeLeon still has faith that lawmakers will act and she’ll be able to go home to her family before her full sentence is up. Amendment 11, she said, feels like a “beginning,” a proposal designed for cases like hers.
She heard about Oklahoma releasing nearly 500 inmates earlier this month by retroactively applying changes in sentencing laws for low-level drug and property crimes.
Florida lawmakers meet again in Tallahassee in January. DeLeon said she and other prisoners will be keeping close tabs by watching committee hearings on a common area TV.
Meanwhile, she spends so much time in the prison’s law library, looking for a way out, that the other inmates call her “Research Queen.”
DeLeon longs to reconnect with her twins and to explain to her daughter the truth of where she’s been.
“Home is just everything to me right now,” DeLeon said. “I know that the years with my kids, I can’t make up.”
She recently mailed home a sketch she drew of her daughter as a mermaid for her ocean-themed bedroom. Lunexys is being raised by her grandparents, who keep her busy with art and chorus and ballet.
DeLeon mailed a different drawing to her parents’ house shortly after her motion for a new sentence was denied.
It depicts a woman being dragged to the ground by tree roots while flowers blossom out of her body.
When her parents saw it, they burst into tears. They knew that the woman in the drawing was DeLeon — being held hostage by her mistakes and by those in power unwilling to act.
Times senior news researcher Caryn Baird and photojournalist John Pendygraft contributed to this report.
