Two men are about to see the world for the first time out of prison walls in more than a decade, after originally being sentenced to die behind bars for drug trafficking convictions.
Roberto Cruz, 71, and Flavius Henderson, 66, were both set to be released from Alabama prisons in May after a Jefferson County judge changed their sentences. Cruz served 15 years and 10 months for a marijuana trafficking conviction; Henderson nearly 20 years for a cocaine trafficking conviction. Both were originally sentenced to a mandatory term of life in prison without parole due to the state’s habitual offender act. Cruz has already been released, while Henderson is awaiting release.
Jefferson County Circuit Judge Stephen Wallace states in one of his new sentencing orders for the men, “Interestingly, more inmates are serving life without parole sentences for drug trafficking and drug manufacturing crimes than persons serving life without parole for attempted murder, conspiracy to commit murder, arson in the first degree, and domestic violence in the first degree combined.”
“Nationwide, there is a growing consensus that life without parole sentences for drug trafficking convictions are excessive and disproportionate,” the order states.
Cruz was one of four people in Alabama’s prisons serving life without parole for a marijuana trafficking crime; Henderson was one of 14 people serving life without parole for a cocaine trafficking offense.
Attorneys for both men argued that the life without parole sentences amounted to violation of constitutional rights against cruel and unusual punishment; and the judge’s orders do mention Cruz’s and Henderson’s sentences raise “Eight Amendment concerns,” and noted that both cases satisfy all three of the U.S. Supreme Court’s suggestions for determining a disproportionate sentence.
But both cases’ appeals ultimately turned on legal arguments surrounding whether their cases qualified for sentencing under the state’s habitual offender (or three strikes) law.
Roberto Cruz
Cruz, now 71, was convicted of illegal drug trafficking of marijuana in August 2005 after a two-day trial. He sentenced to life in prison without the possibility of parole, which was mandatory because of rules in the Alabama Habitual Felony Offender Act.
According to the judge’s resentencing order issued May 7, the trial court used three felony convictions from a federal court case, which do not actually qualify for sentence enhancement under Alabama law. There was no objection made at Cruz’s original sentencing hearing about the use of those felonies, though.
“…it appears that there were few issues seriously contested at trial,” the judge wrote in his order. “The state’s case rested primarily on circumstantial evidence suggesting that since (Cruz) was a passenger in a vehicle and marijuana has a strong odor, then he must have known about the drugs.”
The order also said the arresting officer testified in a “summary” fashion during trial that the driver of the car, Osvaldo Reyes, admitted Cruz knew about the drugs. The officer said Reyes was to receive $2,000 for transporting the marijuana to a person named ‘Max,’ and Reyes would pay Cruz $500.
The new order states, “Even accepting the state’s case, there was no evidence that Cruz was any more than a drug courier in this exchange.” The judge wrote that Cruz played a “subordinate and minor role.”
Cruz’s lawyers claimed in his appeal that because he only had one prior qualifying felony under the habitual offender act, he should not have been given the mandatory sentence. “This court agrees that the original sentencing judge mistakenly held that Cruz had three prior qualifying felony convictions… The trial court did not have the discretion to then elect to sentence the defendant to a life without parole sentence," Wallace wrote in his order.
According to the trial transcript, Cruz did not speak or understand English well.
The trial transcript shows Cruz’ then-attorney, Temo Lopez, made a motion to for a court-appointed interpreter, but the judge denied Lopez’s request. Here is the exchange between Lopez and the original Judge Gloria Bahakel, according to the transcript:
MR. LOPEZ: It's my concern, Judge, that because of… Cruz's obviously heavy accent, that the jury, once I have got him on the stand, is going to have a difficult time understanding him, Judge.
THE COURT: Ricky Ricardo had a terrible accent, too, but people understood him.
MR. LOPEZ: I--
THE COURT: If he speaks slowly enough, we don't have a problem.
Wallace wrote the sentencing range in Cruz’s case should have been between 15 and 99 years—he’s now served 15 years and 10 months—and ordered Cruz’s sentence to be time served.
Flavius Henderson
Henderson, 66, was convicted in May 2001 of illegal drug trafficking of cocaine and was also sentenced to a mandatory term of life in prison without the possibility of parole. He’s now served about 20 years in prison. In late May, he was also resentenced to time served.
According to the judge’s sentencing order, there was no search warrant executed in Henderson’s case; police said an unidentified man flagged them down and said drugs were being sold in a certain area. Police went to that location, and believing Henderson matched the description of who they were searching for, they questioned and searched him. He was found with about 49.9 grams of cocaine.
In early May 2001, Henderson waived his right to a jury trial and opted for a bench trial before Bahakel. Henderson’s then-defense team also waived the right to present witnesses or to cross-examine the state’s witnesses. According to the resentencing order, no witnesses were called.
Bahakel sentenced Henderson to a mandatory term of life in prison without parole, because he had three prior felonies and again under the state’s habitual offender law. Henderson argued in his recent appeal, however, that the sentence should not have been handed down because one of those prior convictions—a 1979 grand larceny conviction—was not eligible to count towards that mandatory sentence under the habitual offender act.
“This Court can contemplate very few occasions to waive a defendant’s right to a jury trial along with other trial protections,” Wallace wrote in his order. “…this case moved swiftly through a cursory ‘bench trial’ and a sentence of life without parole. As noted, there is not even a record of a plea agreement being offered or sought to avoid this result.”
Wallace’s order said the original sentencing judge mistakenly held that Henderson’s priors constituted the life sentence.
Henderson’s grand larceny conviction stemmed from an incident where, according to Wallace’s order, Henderson stole $90 worth of car batteries from the city of Birmingham. In that case, the judge wrote, the charging paperwork doesn’t cite a specific grand larceny statue, and a district judge accepted Henderson’s guilty plea- not a circuit judge, who would have had jurisdiction in the case. Within a year of that conviction, the state changed its criminal code to a theft statue that repealed larceny “and the intentional taking of less than $100 instead represented a misdemeanor theft offense.”
“As such, this court finds that the resulting life without parole sentence should be set aside and the matter reset for a new sentencing hearing to determine the proper number of qualifying priors and sentence." Henderson was resentenced May 28 to time served.
Jefferson County District Attorney Danny Carr, who was not in office during either conviction, did not object to the changes in sentence. “I think sentences should be in proportionality to the crime that was committed. There is a saying that the punishment should fit the crime and every case stands on it’s own merit. If we are honest with one another we all should recognize that just because it is the law doesn’t make it right,” Carr said. “Sometimes we have to look at what happened pursuant to the criminal charge and make an educated decision that makes sense relative to punishment. I truly believe (life without parole) on drug cases where no one was seriously injured or killed is a bit egregious and those cases should be revisited.”
Jefferson County Chief Public Defender Adam Danneman represented both Cruz and Henderson on their appeals that were granted. He said that, when the COVID-19 pandemic first hit Alabama, his office worked “around the clock” with the district attorney’s office to reduce the county jail population, particularly for those accused of non-violent offenses and those who were most suspectable to the coronavirus. Danneman said that, as the state tried to do the same, he was contacted by the Southern Poverty Law Center about Cruz’s case. “Although neither myself nor the (public defender’s) office originally represented either Mr. Cruz or Mr. Henderson, it was apparent both of these men were extreme examples of how outdated, overly punitive ‘three strikes and you’re out’ laws impact poor Alabamians,” Danneman said. “Neither Mr. Cruz nor Mr. Henderson… had any prior violent offenses or weapons charges. In most courts around this country, neither of them would have received sentences remotely approaching life, let alone without the possibility of parole.
“Fortunately, we were able to find legal grounds for resentencing. Both the District Attorney’s office as well as Judge Wallace showed courage by prioritizing a fairer, lawful sentence for Mr. Cruz over everything. There are numerous other non-violent people soaking up limited space and tax dollars being warehoused well into their second and third decades in prison. I’m proud that our office played a role in helping a few of them. I hope our state will enact retroactive sentencing reform to help hundreds of others.”