Juan Cartagena Testimony Calling on President Obama to Grant Clemency to Oscar Lopez Rivera

Chair and Council Member Koslowitz, Members of the Council Committee on State and Federal Legislation, and other Members of the New York City Council

Good morning. My name is Juan Cartagena and I serve as President & General Counsel to LatinoJustice PRLDEF, formerly known as the Puerto Rican Legal Defense & Education Fund, one of the nation’s leading civil rights organizations that represents Latinas and Latinos to protect their civil and constitutional rights and works to increase their entry into the legal profession. By way of background I am a graduate of Dartmouth College and Columbia Law School, a practicing civil rights attorney in New York and New Jersey for over 34 years and a former Municipal Court Judge in Hoboken, New Jersey. I respectfully submit this testimony in favor of the proposed Council Resolution calling for President Obama to permit the immediate release of Oscar López Rivera from prison as his continued incarceration is unjust and serves no legitimate purpose.

On behalf of LatinoJustice PRLDEF I support this Resolution for two basic reasons: One: The sentences imposed on Mr. López Rivera are severely disproportionate to the crimes for which he was convicted and reflect this nation’s illogical and unnecessary criminal justice policies. Two: Mr. López Rivera is widely considered to be unjustly sentenced for his political beliefs in general and his support for the independence of Puerto Rico in particular, as such, his continued incarceration is inconsistent with this nation’s values.

LatinoJustice PRLDEF has been actively involved in policing and criminal justice reform for many years. It uses litigation and advocacy to address the discriminatory aspects of the criminal justice system and its impacts on Latino communities in a number of critical areas throughout the region and the country. It has challenged the New York Police Department’s trespass arrests under its Stop & Frisk programs (Ligon v. City of New York); the Suffolk County Police Department’s racial profiling of Latino motorists (Plaintiffs 1-21 v. Suffolk County); unconstitutional immigration home raids in Westchester and Suffolk Counties (Aguilar v. ICE); the Frederick County, Maryland’s racial profiling policies against Latinos (Orellano Santos v. Frederick County); employment discrimination practices against persons with criminal histories (Houser v. Pritzker); hate crimes and discriminatory policing practices against Latinos in Suffolk County before the Inter-American Commission on Human Rights; police harassment of day laborers in Long Island (Centro de la Comunidad Hispana v. Oyster Bay); the segregation of prison inmates by race in California (In Re Randolph Haro); and New York State’s treatment of juvenile offenders under policies that criminalize youth as adults.

The Disproportionality of the Sentence and Period of Incarceration of Mr. López Rivera Our work on the intersection between policing and criminal justice policies and Latino communities has also led us to promote policy reforms in sentencing practices in the country’s criminal courts as well. Most recently, LatinoJustice PRLDEF has weighed-in before the U.S. Supreme Court on the sentencing of juveniles to life-without-parole (Miller v. Jackson) and before the U.S. Sentencing Commission on full retroactivity of drug sentencing guidelines in federal courts – affecting over 46,000 defendants, 43% of which are Latinos who are now eligible for sentence reductions because of this advocacy.

It is in this vein that LatinoJustice PRLDEF asserts that the sentences imposed against Mr. López Rivera both for seditious conspiracy in 1981 (55 years) and for conspiracy to escape prison in 1987 (15 years to run consecutively) are extremely disproportionate in relation to the actions for which he was convicted, serve no rational or legitimate state purpose, and are otherwise grossly unjust. On May 29, 2015 Mr. López Rivera marked the 34th anniversary of his arrest and continued imprisonment. By any measure of criminal sentencing policy his current length of incarceration, let alone his original sentences, are disproportionate and excessive.

The criminological underpinnings of sentencing and incarceration in America serve four widely accepted social purposes that have come to be defined as retribution, deterrence, incapacitation and rehabilitation. In January of 2015 Oscar López Rivera celebrated his 72nd birthday and as of today has served 34 years in prison – 12 of which were served in solitary confinement. Under these circumstances there is little doubt that the only purpose being served by the federal government’s continued incarceration of Mr. López Rivera is retribution. Indeed, on this score Mr. López Rivera stands with millions of prisoners in U.S. federal and state prisons and jails because the punishment industry, that is today’s imprisonment complex, still incarcerates more people per capita in the United States than anywhere in the world – 716 for every 100,000 residents. And at a prison population of 2.2 million persons behind bars, close to 30% of the civilian workforce with criminal histories, and the myriad collateral consequences that impede reentry, America appears to have an insatiable thirst for retribution and punishment.

But I respectfully submit what makes Mr. López Rivera’s sentence and continued incarceration unique is that its stark disproportionality fails to promote the best thinking of criminologists today.

For example, at the time of his sentence in 1981 Mr. López Rivera and his co-defendants had no prior convictions – a factor that is correlated with longer sentences. Nor was he charged or convicted of murder or causing physical injury -- a factor that is correlated with longer sentences. In the year Mr. López Rivera was convicted the highest average sentence issues in all federal courts, for all crimes, was just over 41 years. The year before in 1980 in all federal courts the average sentence for violent crimes was 10.5 years; for murder it was 10.3 years; for kidnapping it was 21.9 years. At the state court level the average time actually served in prison by persons convicted of serious violent crimes was between 2.5 and 4 years.

In 1987 sentencing in all criminal courts took a decided shift against a reform movement that relied on individual decision-making and indeterminate sentences towards determinate sentences that focused on increased certainty and severity according to the National Research Council of the National Academies (The Growth of Incarceration in the United States: Exploring Causes and Consequences). The federal Sentencing Reform Act of 1984 led this retrenchment and took effect in 1987 and heralded the wave of mandatory sentences that both increased the percentage of defendants that received prison sentences and the length of these sentences for many crimes. And yet even by 1987 standards the average sentence in federal courts was just over 55 months or less than 5 years. Four years later in 1991 the average sentence was 6.3 years.

Mr. López Rivera, it bears repeating, was sentenced to 55 years in 1981 and has already served 34 years.

There are no real comparators for the crime for which Mr. López Rivera was convicted in 1981 – seditious conspiracy in large part because the United States never lodged such charges against anyone one else except Puerto Ricans seeking the independence of Puerto Rico. Indeed for 50 years from the 1930s to the 1980s only Puerto Rican independentistas were prosecuted under the seditious conspiracy statute in the federal criminal code.

In 1987 Mr. López Rivera was convicted of conspiracy to escape and sentenced to an additional 15 years in prison to run consecutively. There are no indications that Mr. López Rivera and his co-defendants on that charge ever escaped, or actually attempted to escape. Instead it was another conspiracy charge. Apparently, all other co-defendants in this conspiracy were sentenced to 5 years or less. From 1980 through 1990 the average sentence in federal courts for actual escape (not conspiracy to escape) was 1 year and 8 months. Once again Mr. López Rivera received a disproportionate sentence – and this time relative to all other similar crimes.

The academic resource cited above The Growth of Incarceration in the United States: Exploring Causes and Consequences by the National Research Council of the National Academies was published in 2014 and edited by Jeremy Travis and Bruce Western, two of the leading academics on prison reentry and criminal justice policies. Indeed, the National Research Council itself is considered to be composed of some the leading academics providing objective and evidence-based research and analysis on a broad range of policies in the United States and is part of the National Academies, that is, the academies of Science, of Engineering, the Institute of Medicine and the National Research Council. After reviewing incarceration and criminal justice policies the National Academies concluded in this study that the use of incarceration in America can and must be balanced by following four guiding principles:

1. Proportionality: Criminal offenses should be sentenced in proportion to their seriousness; 2. Parsimony: The period of confinement should be sufficient but not greater than necessary to achieve the goals of sentencing policy; 3. Citizenship: The conditions and consequences of incarceration should not be so severe or lasting as to violate one’s fundamental status as a member of society. 4. Social Justice: Prisons should be instruments of justice and as such their collective effect should be to promote and not undermine society’s aspirations for a fair distribution of rights, resources, and opportunities.

I respectfully submit to the New York City Council that a favorable vote on this resolution calling for the immediate release of Mr. López Rivera is not only the just thing to do under these circumstance but it is consistent with the best thinking on sentencing principles that exists today as documented by the National Research Council of the National Academies. The current period of incarceration – 34 years and counting – as well as the original sentences of 55 and 15 years, respectively, does not serve any of the four principles outlined above. The sentences and time served are severely disproportionate and with 12 years confined in solitary they are well beyond any notion of justice; in addition, they are well beyond being frugal or parsimonious and no longer serve any value except at best, gross punishment and retribution; they work against any notion of citizenship especially considering the age of Mr. López Rivera and his life expectancy and integration into society upon any eventual release; and they belie any sense of social justice given the length of his incarceration.

It is widely reported that Mr. López Rivera has now served more time behind bars than the great leader Nelson Mandela under apartheid. President William Clinton offered Mr. López Rivera executive clemency in 1999 by noting that his sentence, as well as that of his co-defendants were “out of proportion to their crimes .. Our society believes, however, that a punishment should fit the crime.” This speaks again to the fact that his sentence and time served are both severely disproportionate.

The Role of Mr. López Rivera’s Political Beliefs

The proposed City Council resolution calling for the immediate release of Mr. López Rivera by President Obama is more than justified by the disproportionality of the sentences and time served that he has faced, as noted above.

But it is Mr. López Rivera’s political beliefs in favor of the independence of Puerto Rico that are also implicated in this body’s deliberations of this resolution.

To be clear, Mr. López Rivera was convicted of seditious conspiracy for acts taken in the 1980s in Illinois – and not the actions taken by the FALN anywhere else. He was never charged or convicted of murder or causing physical injury to others.

But his work towards the independence of Puerto Rico clearly colors every decision made by the law enforcement and correctional authorities in this case. What else can explain the disproportionality of the original sentence for seditious conspiracy and the conspiracy to escape sentence? Or the 12 years of solitary confinement?

For a person who has spent 34 years in prison for holding on to his political beliefs it is time to allow him the dignity of returning home to his family.

I urge this Committee to pass this resolution.

Sources

Federal Sentencing Reporter, Vol. 13, No. 3-4, 2000-2001, 226-227 (Letter from President Clinton to Congressman Henry Waxman.

Administrative Office of the United States District Court, Sentences Imposed Chart For Year Ended June 30, 1981 (Washington, D.C.), p. 145.

Federal Criminal Case Processing, 1980-87, Addendum for 1988 and Preliminary 1989: A Federal Justice Statistics Report (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1990), p. 17. Herbert Koppel, Time Served in Prison: Bureau of Justice Statistics Special Report (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1984).

In the decade of 1980 through 1990, according to statistics maintained by the Administrative Offices of the United States Courts.

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