The Sentencing Reform Act (SRA) was passed to address what Congress thought were inconsistent sentences imposed by different judges on different individuals convicted of the same crimes, as well as arbitrary parole decisions. A new system-one of determinate sentences-was born and the Parole Commission was abolished.

At the heart of Peltier's argument is the refusal of the government to enforce Title II, Chapter II, Section 235(b)(3) of the Sentencing Reform Act. Effective on October 12, 1984, this part of the law ordered that parole dates "consistent with the applicable parole guideline" be issued to all "old system" prisoners within the following five-year period, at the end of which time (on October 11, 1989) the Commission would cease to exist. 

On December 7, 1987, Congress enacted Public Law 100-182 which amended the SRA; repealed, in Section 2, the release criteria established by the original section 235(b)(3); and restored the release criteria under 18 U.S.C. 4206.  This amendment did NOT restore the Parole Commission or remove its obligation to establish mandatory release dates, with sufficient time for appeal, by October 11, 1989. These changes to the law also applied only to crimes committed AFTER the law was amended on December 7, 1987. The amendment simply did not apply to the Leonard Peltier or some 6,000 other "old system" prisoners still held by the U.S. Bureau of Prisons today.

After it had technically ceased to exist, the Parole Commission claimed it needed more time to complete its work. Congress inexplicably granted a number of after-the-fact extensions, the first in 1990 and the latest in 2002. Peltier's attorneys claim these extensions were legally invalid and therefore inapplicable because, at the time they were made, the Parole Commission had already been abolished. 

Mr. Peltier should have been given his certain release date by October 11, 1989, minus sufficient time to exhaust appeals. Had the Parole Commission followed the congressional mandate, Peltier would have been released over a decade ago. Lacking in any statutory authority, the U.S. Parole Commission in fact illegally extended Leonard's term of imprisonment. The failure of the Parole Commission to give a release date to Peltier violated the ex post facto, Bill of Attainder, and Due Process clauses of the U.S. Constitution.

Withheld Documents

The legal team continues to press the government to produce the case documents which it has withheld for over 30 years. As a result of Peltier's FOIA lawsuits, it has been learned that the FBI actually possesses over 100,000 pages of material which it has failed to provide to Peltier and his legal team.

The following is an overview of only one of Peltier's FOIA lawsuits in pursuit of documents still withheld by the FBI. Specifically, the lawsuit is against the Minneapolis Field Office of the FBI. The records in this FBI field office are of particular interest as Minneapolis was the Office of Origin for the RESMURS ("Reservation Murders") investigation. This field office maintains 90,000 pages of material responsive to Leonard's FOIA request.

On August 15, 2003, Magistrate Susan Richard Nelson (U.S. District Court - Minnesota) issued an order denying without prejudice Peltier's Motion for a Vaughn Index (a listing detailing the documents withheld and the FBI's reasons for doing so) and granting the FBI's Motion for a Stay of Proceedings. The magistrate concluded that exceptional circumstances exist where the resources of the FBI are inadequate to deal with the volume of FOIA requests it receives within congressionally mandated time limits. The magistrate also ruled that the FBI has shown due diligence in processing its requests. However, the FBI was ordered to give four-month updates and produce documents as they were reviewed. Specifically, the FBI was to begin releasing documents no later than December 2004 and to complete processing by December 2005.

On December 30, 2004, the FBI produced 5,112 pages of material from its Minneapolis Field Office File #70-10239 Sub X Sections 1 through 97. The documents released made it clear that the FBI was not acting in good faith with respect to the processing of Leonard Peltier's FOIA request. The 5,112 pages released consisted of Leonard Peltier's 1977 trial transcript, as well as the trial transcript from the case of USA v. Robideau and Butler-material to which the legal team already had full access. Incredibly, the FBI withheld 144 pages from these transcripts on the basis that they were exempt from disclosure under Exemption (b) (5).  The FBI subsequently released an additional 5,167 pages of records from its Minneapolis field office.

The government also tried to delay producing these documents and future documents by demanding the payment of monies (fees) up front. This was a change in tactics. Previously, the government had produced the documents and the legal team then reimbursed them for the cost.

As of this writing, the FBI has reviewed 77,149 pages and released 66,594 pages in full or in part. However, 10,555 pages were withheld in their entirety.

Due to the release of some documents, evidence was discovered establishing that Douglas Durham, who was a confidential source paid by the FBI to infiltrate the highest levels of the American Indian Movement and who was exposed on March 7, 1975, spoke with and provided information to William Halprin, the Chief Prosecutor from Canada against Leonard Peltier in connection with his extradition proceedings. Halprin requested Durham's involvement "to enable him to utilize source [Durham] to refute statements made by Peltier's defense." The FBI instructed Durham "to provide information requested by Crown Attorney [and]... If recontacted by Halprin, he would cooperate fully and would keep Omaha advised of developments."

Proof of extensive infiltration of Peltier's legal defense team would show egregious misconduct on the part of the government. Such proof would likely result in Leonard Peltier's conviction being overturned. Therefore, on September 8, 2006, Peltier's attorneys again argued before United States Magistrate Judge Susan R. Nelson for the full release of all FBI files maintained by the Minneapolis Field Office relating to Leonard Peltier.

Knowing the impact such revelations would have on Leonard Peltier's case, the government is fighting vigorously to prevent these documents from being released to the public. Among other things, the FBI claims that the release of this information would harm national security and reveal the identities of confidential sources. Leonard Peltier's lawyers argued that these claims are nothing more than pretexts to prevent the release of further evidence of the continuing violation of Leonard Peltier's constitutional rights, and further drives home the fact that Leonard Peltier never received a fair trial. 

The District Court, however, has concurred with the FBI's position. Therefore, on June 8, 2007, Peltier attorneys filed with the U.S. Court of Appeals for the Eighth Circuit an appellate brief asking the Court to review and release some 11,000 pages of documents related to the investigation and prosecution of Leonard Peltier. Oral argument in the case was heard by the Court of Appeals on March 11, 2008. Listen to the court recording of the hearing here. The Court's decision is pending.