THE RETRIBUTIVE INCARCERATION OF OSCAR LÓPEZ RIVERA

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    Óscar López Rivera is a political prisoner who, at 74 years of age, has served 34 years in American prisons, 12 of them in consecutive solitary confinement, because of his ideas. Sentenced to 55 years for seditious conspiracy in 1981 and an additional 15 years for conspiracy to escape in 1987, López Rivera has never been convicted of a violent act. His only idea, overarching as it is, is the independence of Puerto Rico. His continued incarceration today, as the nation ponders the ills of disproportionate criminal sentencing, can only be justified by gross punishment and retribution. Why else keep a 74 year old man whose release is supported by Nobel Peace Prize recipients Desmond Tutu, Rigoberta Menchu and Mairead Maguire, among thousands of others, behind bars for this long? Punishment — that enduring characteristic of American exceptionalism, plain and simple — is the only justification. For our sake, President Barack Obama, please release him. Now. The two consecutive criminal sentences, totaling 70 years, shout out disproportionality thereby reflecting this country’s illogical and unnecessary criminal justice policies — which the Obama administration is trying to correct. Equally important, because Mr. López Rivera is widely considered to be unjustly sentenced for his political beliefs and his advocacy for the independence of Puerto Rico, his continued incarceration is inconsistent with this nation’s values. Seditious conspiracy in 1981 really had no parallel in the nation’s courts since it appears that at that time the only persons even accused of the crime were exclusively persons advocating for Puerto Rican independence. Thus, 55 years for that conviction — where Mr. López Rivera has already served 34 — is disproportionate especially considering that he was never convicted of any violent crime or crimes that caused injuries to others. His 1987 conviction for conspiracy to escape also belies any fair notion of just sentencing upon receiving 15 consecutive years of imprisonment far more than any other members of the conspiracy. Again, Mr. López Rivera was not convicted of actually escaping or even actually attempting to do so. The facts and circumstances of his conspiratorial acts were all part of the public record when President William Clinton offered Mr. López Rivera executive clemency in 1999, noting that the sentences were “out of proportion.” Mr. López Rivera chose not to accept the offer in light of the terms of the offer for his other co-defendants — but that has nothing to do with fair sentencing. In fact, the best practices of sentencing reform in the modern era were recently highlighted by the National Research Council of the National Academies in 2014 in “The Growth of Incarceration in the United States: Exploring Causes and Consequences.” That body of academics concluded that incarceration in America should be balanced by four guiding principles: Proportionality (criminal offenses should be sentenced in proportion to their seriousness); Parsimony (the period of confinement should be sufficient but not greater than necessary to achieve the goals of sentencing policy); 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); and, Social Justice (prisons should be instruments of justice and their collective effect should be to promote, not undermine, society’s aspirations for a fair distribution of rights, resources and opportunities). When applied to a 74-year-old man who has spent nearly half of his life imprisoned for his political beliefs, these principles underscore how unjust this case really is. The sentences, as noted above, are patently disproportionate, and given that Mr. López Rivera spent 12 consecutive years in solitary confinement they go beyond any sense of justice. The sentences are also well beyond frugality or parsimony; belie any sense of the value of citizenship given Mr. López Rivera’s age and his life expectancy; and run counter to any modicum of social justice. Under these principles his sentences serve no value except, at best, retribution and we should be well beyond that debilitating and corrosive mind-set in modern sentencing reform. The Obama administration knows better. It has been steadfastly advocating for sentencing reform of late. The President visited a federal prison, a historic and welcome first, while speaking to the scourge of racial profiling, and addressing juvenile justice on one hand, and enduring collateral consequences on the other. The growing support for the release of Mr. López Rivera has unified each of the major political parties in Puerto Rico who along with clergy, unionists, activists and elected and community leaders have made his cause well within the mainstream. Moreover, such a request is not outside the propriety of the power of the executive since granting presidential clemency for prisoners who advocate for Puerto Rico’s independence is not a complete rarity. President Harry Truman, Jimmy Carter and William Clinton have all done it. Instead, what America has in Óscar López Rivera is a beacon of freedom and a symbol of what needs to be rectified at the earliest possible moment in order to restore our standing in the world community and to make palpable the very criminal justice and sentencing reform that has wisely guided this administration. In addition to the support López Rivera receives from Nobel laureates, it was President Obama’s memorable speech in South Africa in 2013 at the commemoration of the life of Mr. Mandela that raised real hopes for his release. The President spoke of Mandela’s activism for freedom, inspiring both him and the whole world and then he spoke of Mandela’s reconciliatory outlook: “It took a man like Madiba to free not the prisoner, but the jailer as well … to teach that reconciliation is not just a matter of ignoring a cruel past, but a means of confronting it with inclusion, generosity and truth.” I personally met with Óscar López Rivera in his prison in Indiana in 2015 as part of a delegation of three attorneys, including his own, the incomparable Jan Susler. López Rivera held no rancor, and was the picture of peace and benevolence. His mind was clear and spirit intact. His return to his cell that day as I exited the visiting room was an affront to everything I have learned about justice in our country. Should President Obama commute his sentence it will not only free Óscar López Rivera, but also the very system that unjustly jails him.

    by Juan Cartagena President and General Counsel of LatinoJustice PRLDEF

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