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Status
Leonard Peltier received two consecutive
life sentences. In the federal system, "life" is defined as 30 years.
A subsequent escape conviction (and of related charges) resulted in 7
years being added to Leonard's sentence. Therefore, he is expected to
serve a maximum of 67 years. He was given credit for time
served from the time of his arrest in February 1976 until his 1977
conviction and sentencing for the killings of the federal agents.
The
U.S. Parole Commission has
established
parole guidelines that indicate the range of time to be
served prior to release for various combinations of offense (severity)
and offender (parole prognosis) characteristics. Consideration of
mitigating circumstances as regards the offense is allowed and the
time ranges specified by the guidelines are established specifically
for cases with good institutional adjustment and program progress.
These are only guidelines, however, and parole decisions are made at
the discretion of the Commission, i.e., decisions outside of the
guidelines may be rendered and have been in the Peltier case.
According to the severity of the offense
(the killings of two law enforcement officers), Leonard Peltier was
designated as a Category 8 offender, the highest rating possible.
Mitigating circumstances have not been considered and the Commission
has rated his parole prognosis as poor thereby requiring that Peltier
serve 188+ months on his aggregate sentences. There is no upper limit
for Category 8 offenders. Therefore, the time Peltier will serve is
entirely up to the discretion of the parole authorities.
Leonard Peltier's first full parole hearing
was held in 1993, at which time his case was continued for a 15-year
reconsideration. He'll be eligible for another full parole hearing in
December 2008. An application for parole will be filed at Mr.
Peltier's discretion. The earliest that hearing is likely to occur is in
January 2009 (according to
the Parole Commission's schedule for in-person parole reviews to be
held at USP-Lewisburg, where Peltier is currently imprisoned).
Naturally, if Leonard Peltier were to be transferred to a different
facility or if the Parole Commission were to add Lewisburg to its list
of facilities where hearings are conducted by video-conference, the date
of his parole hearing would likely change.
Note: Scheduling of Leonard Peltier's parole
hearing also may be disrupted by the 2008 presidential election (as
the first available date for a parole hearing technically follows the inauguration). The post of parole commissioner is a political
appointment made by the President of the United States. However,
unlike cabinet posts, only vacancies tend to be addressed and
commissioners may serve up to 12 years. All of the current five
commissioners were appointed between 2001 and 2004. Such appointments
do not affect the staff of about 100 persons at the U.S. Parole
Commission, however, including the parole examiners. The Commission
also may be affected by congressional efforts to reinstate federal
parole and other measures. It remains to be seen what impact, if any,
these factors will have on Leonard Peltier's parole hearing. When the
hearing does occur, however, a full reassessment of the case will be conducted.
Due to the length
of his sentence, interim hearings are held every two years to consider
any significant developments or changes in Mr. Peliter's status since the
last full hearing in 1993. The examiner may order no change in the previous decision; or
advance a presumptive release date or the date of a 15-year
reconsideration hearing. Interim hearings were conducted in 1996,
1998, 2000, and 2002. Since 2002, Peltier has waived his right to interim hearings
(in both 2004 and 2006).
Chronology
The U.S. Parole Commission first considered Peltier's parole
in December 1993. In a ruling on February 1, 1994, the Parole Commission determined that
Peltier would not be considered for parole for 15 years, or until
December 2008, after a total imprisonment of 394 months. This
amount is more than twice the 188+ months to be served based on Leonard Peltier's aggregate guideline range. The Commission concluded
that "a decision more than 48 months above the minimum guideline
range is warranted" because Peltier had been "involved in the
ambush of two federal officers" and "participated in the
premeditated and cold blooded execution of those two officers."
The U.S. Parole Commission has not had
available to it and has not reviewed Peltier's trial record at
any time, but has relied solely on the intentionally
misleading claims of Assistant U.S. Attorney Crooks (who tried the
case in 1976), supported by the Federal Bureau of Investigation (a
government agency, including thousands of active and retired agents,
that has unfairly been afforded "victim rights" in parole
proceedings).
During a
December 11, 1995, interim parole proceeding, for example, Crooks claimed for the
first time and contrary to the trial record that the agents had gone to
the Jumping Bull Ranch to arrest Leonard Peltier and "for no other reason"
and that Leonard Peltier's vehicle "was placed at the location of the agents'
murders" because "radio transmissions of the two agents monitored just
prior to their deaths indicated that they were in pursuit of a red
vehicle." However, there was no evidence the "red vehicle" was Peltier's. In fact, Leonard Peltier owned an old green Ford at the time
and only
borrowed a red and white van on occasion. Neither vehicle was
placed at the scene. In fact, the trial record shows that the agents
had followed a "red pick-up" and had been looking for a person named Jimmy Eagle, not Leonard Peltier.
In 1995, however, the hearing examiner "concluded after
a review of the additional exculpatory evidence [information on
withheld ballistics evidence and coerced testimony discovered after
the trial under
the Freedom of Information Act and presented to the examiner by the defense] that a preponderance
finding that Peltier actually executed the agents cannot be made." He stated the original 15-year period before reconsideration for
parole "was based on the conclusion that Peltier's conviction had
included a specific or directed finding by the jury that Peltier had
fired the fatal shots into the agents causing their death." Not
finding that this is the case, the examiner found no support for the
above-the-guideline decision at the 1993 parole hearing. The
examiner recommended a grant of parole.
Without Peltier being provided the opportunity
to be present or heard in a hearing held in response to a government
challenge to the above examiner's ruling, therefore in violation of Peltier's due process rights, the U.S. Parole Commission
ordered on July 12, 1996, a continuance to December 2008 for reconsideration of parole
due to the nature of the offense (again based on erroneous
information and mistakes of law) and Peltier's "evident decision not to
accept criminal responsibility," i.e., in fact, to confess to a
crime he did not commit.
During the 1998 interim hearing, the
examiner exhibited blatant discrimination when he told Leonard, "I
realize that you are what is often called a Native American who is
also called an Indian... but the facts of this case are that
someone killed these individuals, that they are dead, that they were
in fact murdered, and someone from that Nation, someone present on
that date, that appears to have been a part of your nation committed
these crimes... unfortunately you, Leonard Peltier, are the one and
only person who was convicted in this matter..."
On May 23, 1998, the U.S. Parole
Commission reaffirmed that Leonard Peltier would not be considered for
parole until December 2008, and on October 2, 1998, the National
Appeals Board of the U.S. Parole Commission preemptively affirmed
the decision.
During Peltier's June 12, 2000, parole
review hearing the parole examiner refused to even read or consider
the arguments presented by Leonard's attorneys, and he wrote his
recommendation that parole be denied before the hearing was even
concluded. Presentations by Amnesty International, the National
Congress of American Indians, the Assembly of First Nations, and the
National Council of Churches were quickly disregarded. The examiner
even refused to read an important report from a physician
documenting Leonard's current health risks, which include stroke,
blindness, heart disease and kidney failure.
On July 9, 2002, a parole review
hearing was held with similar results.
Deciding to extend his period of
imprisonment beyond 48 months over the 188-month minimum did require that
the U.S. Parole Commission specify the pertinent case factors upon which
its decision was based—one
possible factor being the lack of mitigating circumstances.
The Commission's reasons for denying parole
to Peltier, however, have been:
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Arbitrary and
capricious;
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Based on animus and erroneous information;
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Unsupported by the evidence in this case;
and
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Completely inconsistent with the
government's position taken in judicial proceedings concerning the case.
Consequently, on June 3, 1999, a
Petition for a Writ of Habeas Corpus was submitted to the U.S.
District Court in the District of Kansas on the issue of parole, i.e.,
that Peltier had already served more time than would be customary in any
other case, and charging that the U.S. Parole Commission has failed to
follow its own congressionally mandated guidelines (PDF Format).
The District Court denied the Habeas
Petition and
Peltier appealed to the 10th
Circuit Court of Appeals.
On December 9, 2002, an
Appellant Brief
was submitted to the 10th Circuit Court of Appeals. The defense
argued that the U.S. Parole Commission arbitrarily exceeded the
minimum limit of 188+ months by continuing reconsideration for parole
to December 2008, when Peltier will have served twice the amount of
time as is normal before a grant of parole is made. In addition,
the Commission arbitrarily decided to exceed the upward
limit of 48 months provided for level 8 offenders according to its own
guidelines. Consequently, Peltier
should have been released after serving a sentence that falls within
the range of a minimum of nearly 16 years and a maximum of
nearly 20 years. Peltier has now served over 30 years for a
crime he did not commit (PDF Format).
On January 29, 2003, a
Reply Brief was submitted
(Word).
A subsequent Motion to include an amicus brief was denied.
On September 19, 2003, oral arguments were heard before the 10th Circuit
Court of Appeals in Denver, Colorado.
On November 4, 2003, the lower court's decision was
affirmed. The
10th Circuit Court of Appeals stated: "Much of the government’s behavior
at the Pine Ridge Reservation and in its prosecution of Leonard Peltier is to
be condemned. The government withheld evidence. It intimidated
witnesses. These facts are not disputed." Yet, the court claimed it lacked
power to address the issues surrounding the application of existing parole
guidelines by the U.S. Parole Commission
(Word document).
The Legal Team, on November 17, 2003, filed
a
Petition for Rehearing en banc (PDF Format).
On
December 11, 2003, the appellate
court denied the Petition for rehearing.
On March 5, 2004, a
Petition for a Writ of Certiorari
was filed with the U.S. Supreme Court (PDF
Format).
On April 19, 2004, the U.S. Supreme Court refused to
review Peltier's case.
Other Actions
On August 6, 2002, a Joint Petition for a Writ of Habeas Corpus
was submitted to the U.S. District Court in the District of Columbia, Case No. 1:02CV1629
(RJL). This appeal concerns the
unconstitutional application of the Sentencing Reform Act (under which
prisoners sentenced "under the old system" were to be issued release dates
no later than October 1989) by the U.S. Parole Commission. Click
here to learn more about this pending appeal.
You also may wish to review the current
Civil
Complaint regarding the Sentencing Reform
Act of 1984.
How You Can Help
Leonard is entitled to a full parole hearing in
2008. We need your support to ensure that
the hearing is convened as anticipated. Voice your support for
Leonard's parole, as well.
Sign an
online petition in support of
the immediate parole of Leonard Peltier. Invite others to sign the
Petition. You also may
download the Petition in
Word format to circulate in your community.
You may also write a
letter to the U.S. Parole
Commission.
Important: Completed petitions and/or a copy of your correspondence should be mailed to
the Leonard Peltier Defense Committee,
3800 N. Mesa, # A2, El Paso, TX 79902.
Please also
write to the following organizations to urge their continued advocacy
on Leonard's behalf:
Amnesty International
International Secretariat
1 Easton Street
London WC1X 0DW
UK
*You also may send
correspondence to the national Amnesty International office in
your home country.
Amnesty International-USA
5 Penn Plaza – 14th Floor
New York, NY 10001
Human Rights Watch
350 Fifth Avenue
34th Floor
New York, NY 10118-3299
High Commissioner for Human Rights
United Nations
CH-1211
Geneva 10
Switzerland
Working Group on Indigenous
Populations
United Nations
CH-1211
Geneva 10
Switzerland
Special Rapporteur on Human Rights
and Fundamental Freedoms of Indigenous Peoples
United Nations
CH-1211
Geneva 10
Switzerland
Working Group on Arbitrary
Detentions
Office of the High Commissioner for Human Rights
United Nations
CH-1211
Geneva 10
Switzerland
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COINTELPRO