In recent years Leonard Peltier and his “committee” (it’s difficult to know what to call it because they keep altering the name) has moaned about seeking a compassionate release mainly due to his age—74—and health issues relating to recent bypass surgery, prostate issues and arthritis in his hips and knees.
In simple terms, Peltier is getting old and facing the normal aging process that all of us—to one extent or another—will undeniably face, until the end.
The relevant statute, Title 18 U.S.C. § 4205(g) was repealed in 1987 but remains the controlling law for inmates whose offenses occurred prior to that time. Peltier was convicted of brutally murdering two FBI Agents in 1975 and this is the standard he must meet. (Footnote 1)
As an inmate, Peltier may make the request personally to the Bureau of Prisons (BOP), through the Warden, USP Coleman, or through “another person.” Peltier may use his most recent attorney, David Frankel.
On March 19, 2018 Peltier announced that he was awaiting his BOP medical records and if not received would be filing “a motion on April 4thto get the records,” all for the purpose of a Reduction in Sentence(RIS). (If filed, this motion may be a matter of public record in the U.S. District Court and subject to review and comment.)
Peltier must articulate the extraordinaryor compelling circumstances that warrant RIS consideration.
Peltier would have to provide proposed release plans including where he will reside (that’s been pretty well established, or claimed previously, to be on the Turtle Mountain Reservation in North Dakota), how he will support himself (perhaps more “tax-deductible” donations, selling more artwork or perhaps speaking fees), and since the request will involve Peltier’s health, how and where he will receive medical treatment and pay for that treatment. (Perhaps from an AIM sympathetic doctor or Medicaid, for which he would be eligible, even as a convicted felon.)
Peltier could be given RIS consideration if he has been diagnosed with a terminal, incurable disease and his life expectancy is eighteen (18) months or less. It is possible that Peltier may have a terminal and incurable condition, in a manner of speaking, but not one that would limit his life expectancy to eighteen months or less. Its possible Peltier could live another ten or twenty years, in or out of USP Coleman.
If Peltier had a debilitating medical condition that is incurable and progressive and from which he will not recover, a RIS could be considered if he is completely disabled, meaning he cannot continue any self-care and is totally confined to a bed or chair, or confined to a bed or chair for more than 50% of his waking hours.
Remember though, the infamous Mafia Don, John Gotti, while serving a life sentence was diagnosed with throat cancer, underwent surgery, but died in 2002 in a federal prison hospital facility in Springfield, Missouri.
Peltier has complained about not being able to get around like he used to, but according to him and the “committee” he’s doing quite well with his ability to continue his prison artwork. By this measure, he is not disabled or debilitated. Although sitting and painting is not a strenuous activity, it does require fine motor skills and cognitive focusing on details.
If Peltier demonstrated any cognitive deficits, like Alzheimer’s or traumatic brain injury, he could be considered for a RIS.
Nevertheless, Peltier is lucid, vocal and sometimes articulate in his repeated claims of innocence and being an alleged political prisoner. Although his facts have been challenged in the public domain, he has demonstrated fairly reasonable intellectual skills, both in his press releases and interviews.
However, there are major obstacles Peltier must navigate for any consideration of a compassionate release:
Nature and circumstances of his offense: Contrary to Peltier’s claims, there are no secrets here. His conviction has arguably received more critical attention and reviews than inmates on death row. (Fn.2)
To list but just a few from the many appellate decisions:
“The direct and circumstantial evidence of Peltier’s guilt was strong…” “…Peltier’s contention of manufactured evidence are far from convincing.”
[Direct Appeal; 8th Circuit, 9/14/78]
“The record as a whole leaves no doubt that the jury acceptedthe government’s theory that Peltier had personally killed the two agents, after they were seriously wounded, by shooting them at point blank range with an AR-15 rifle.” [Rule 35 Motion, 8th Circuit, 12/18/02]
“I believe he got a fair trial, not a perfect trial, but a fair trial.” [8th Circuit Court Judge Gerald Heaney; 1991, “60 Minutes” segment]
Criminal history: Although petty in the early days, being convicted of the brutal slaying of two already wounded FBI Agents (by Peltier and other AIM members) trapped in a crossfire in an open field is just about all the criminal history the Warden at USP Coleman or the BOP need consider. Although, there was the armed escape from Lompoc—where guards were shot at—and for which Peltier still owes an additional seven consecutive years.
The victims: Jack Coler’s widow, his children who may have little or no remembrance of their father, his grandchildren, along with Ron Williams who would likely have married, had children and perhaps grandchildren, would all have much to offer regarding the trauma and suffering they have endured over these many years. Add to that Jack and Ron’s many friends and fellow Agents who have never forgotten Peltier’s criminal acts nor his unrepentant public statements that have only worsened the pain they feel.
Institutional adjustment & Disciplinary infractions: Not the best inmate track record here. By Peltier’s own admission, in his latest clemency petition, he acknowledged spending over five years in solitary confinement.
Personal history from the Pre-sentence Report: This is not a public record so only Peltier and his attorneys know what it may contain.
The length of sentence and amount of time served. This factor is considered with respect to the proximity to a release date:
There is no release date. Peltier was sentenced to two consecutive life sentences but has claimed, “Under the laws I was indicted with, a life term was seven years.” (November 2015)
That’s an example of the Peltier Paradox at work; it sounds reasonable. Two consecutive life sentences would then equal fourteen years, and he’s done that almost three times. The math seems right but the premise is fatally flawed. (Fn.3)
Peltier has been challenged to produce any evidence that a life sentence in 1977, when he was convicted in Fargo, was seven years. Life sentences were typically, on average—when an inmate would be eligiblefor parole—twenty-five years. So on that basis, that’s fifty plus seven (Lompoc) or sometime in 2034.
Peltier’s current age: 74, Date of Birth, September 14, 1944.
Peltier’s age at time of sentencing: 33
Would Peltier’s release minimize the severity of the offense? Being released before the completion of his sentence, after being convicted of the brutal slaying of two already severely wounded human beings, woulddiminish the severity of the offense, especially if it is based on the simple fact that Peltier is getting long in the tooth.
When reviewing RIS requests, these factors are neither exclusivenor weighted. These factors should be considered to assess whether the RIS request presents particularly extraordinaryand compellingcircumstances:
On June 26, 1975 Peltier was a strong and healthy individual, his position as an AIM bodyguard can attest to that and there is nothing extraordinaryor compellingregarding facing the predictable challenges of the aging process. Around him today there are, no doubt, elderly inmates and lifers who are experiencing similar issues.
The BOP will consider whether Peltier’s release would pose a danger to the safety of any other person or the community: Although Peltier is elderly he is still capable of inflicting injury if he so intended. The BOP would have to determine, based on his criminal history and conduct as an inmate whether Peltier still poses a threat. Peltier detractors and the victims’ families would doubtless concur that he could still pose a danger to the safety of any other person or the community.
Peltier does notmeet the general criteria for “elderly inmates with medical conditions,” or the intentof the RIS process. For example:
Peltier is over 65, has served over ten years of his sentence, has arguably served at least 50% of his sentence, but not 75%, and did not exhibit these health related issues when he was sentenced. Peltier does exhibit medical conditions related to the aging process but not to the extent that deteriorating mental or physical health would substantially diminishhis ability to function in a correctional facility. Nonetheless, Peltier has had many years adjusting to his surroundings. Conventional treatments of his conditions, albeit not at the speed or frequency that Peltier demands, would not limit either sustaining him or an improvement of his conditions. After all, he did have bypass surgery when it was needed as well as other medical procedures over the years. Prison medical care may not be as focused or intensive as, let’s say, Johns Hopkins, but it is provided to the prison population under long-established BOP guidelines.
It was not surprising that within the RIS guidelines there was no requirement for an admission of guilt or a show of remorse for his crimes. That’s because this relates to other issues beyond—although certainly considered in the RIS process—his actual conviction. Likewise, this is not about the four decades of myth and folklore that has been the bedrock of the Peltier persona.
As an aside, although permitted to exercise his first amendment right to do so, many people would find it to be patently offensive—bordering on the obscene—should Peltier be released and make money by giving speeches about that infamous day. This would be viewed as Peltier profiting from the brutal murders of the Agents and would be offensive to hundreds of thousands of those in law enforcement.
And what can we say about Jack Coler and Ron Williams?
Peltier laments his expected age-related infirmities but there would be little debate, that if, let’s say on June 25, 1975—the day before—Jack and Ron were asked if they would prefer to be severely wounded and then shot in the face and murdered the very next day. Given the option they unquestionably would have been willing to face heart, prostate or arthritis issues as they would now, today, be 71 years of age. Would they have agreed to not have a full life with their families, children and grandchildren, being able to look back on successful careers and a happy and peaceful retirement? The obvious answer does not need to be stated.
Leonard Peltier, under Title 18 U.S.C. § 4205(g), as he may seek a Reduction of Sentence, should be shown as much compassion as he gave Jack Coler and Ron Williams. And that would be none.
“In the Sprit of Coler and Williams”
1) Federal rules for compassionate release:
Federal RIS procedures: https://www.bop.gov/policy/progstat/5050_049_CN-1.pdf
Direct appeal for conviction:http://www.noparolepeltier.com/585.html
2) Peltier complains about government documents that have not been released under the Freedom of Information Act and has received additional material this year. There is absolute certainty that there is not a memo stating that Peltier is innocent or was in Seattle or someplace else other than Jumping Bull that infamous day. The record of his conviction has been repeatedly sustained despite the collective efforts of a gaggleof attorneys.
3) On the related matter of “fatally flawed:” http://www.noparolepeltier.com/997.html
And in regard to the Peltier Paradox; http://wwwnoparolepeltiercom-justice.blogspot.com/2015/11/peltier-paintings-removed-peltier.html