Has Department of Justice violated Sentencing Reform Act of 1984?

In a major law suit filed early-September 2004 in Washington, DC, two federal prisoners, Leonard Peltier and Yorie Von Kahl, claim that U.S. Department of Justice officials knowingly violated the Sentencing Reform Act of 1984 (and its amendments) and illegally extended the prisoners' confinement for more than a decade.

Defendants named include the U.S. Parole Commission, individuals on the commission over the past two decades and several noted Department of Justice officials. Peltier is serving consecutive life sentences, and Kahl is serving life plus 15 years.

Both men were convicted of killing federal officers in 1975 and 1983, cases surrounded by controversy and alleged government misconduct to this day.

The1984 federal Sentencing Reform Act ushered in a new era in penology when the U.S. Congress changed criminal sentencing from indeterminate to determinate models, closely following Washington State's 1981 groundbreaking legislation.

The SRA was intended to begin correcting inconsistent sentences imposed by different judges on different individuals convicted of the same crimes. Under the 'determinate' sentencing model, the Parole Commission was abolished.

At the heart of the suit, according to Plaintiff's attorney Barry Bachrach, is the "refusal of the government to enforce Title II, Chapter II, Section 235(b)(3) of the Sentencing Reform Act."

Bachrach says that "effective on October 12, 1984, this part of the law ordered that parole dates 'consistent with the applicable 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On December 7, 1987, Congress enacted Public Law 100-182 which amended the SRA, repealed, in Section 2, the release criteria established by the original section 235(b)(3); and restored the release criteria under 18 U.S.C. 4206.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 SRA also applied, claims attorney Bachrach, only "to crimes committed after the law was amended on December 7, 1987; the amendment simply did not apply to the Plaintiffs or to the some 6,000 other 'old system' prisoners still held by the U.S. Bureau of Prisons today."

Bachrach argues that "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."

Plaintiffs Peltier and Kahl claim "these extensions were legally invalid and therefore inapplicable because, at the time they were made, the Parole Commission had already been abolished."

Plaintiffs insist they "should have been given their release dates by October 11, 1989, minus sufficient time to exhaust appeals.

Had the Parole Commission followed the congressional mandate, Peltier would have been released over 12 years ago."

Thus, Plaintiff's cause for action and remedy begins with contention that "lacking in any statutory authority, the U.S. Parole Commission in fact illegally extended the terms of imprisonment of both men."

The failure of the Parole Commission to give release dates to Peltier and Von Kahl violated the ex post facto, Bill of Attainder and due process clauses of the U.S. Constitution.

Plaintiffs demand a permanent injunction preventing further misapplications of the SRA and its amendments by the government, enforcement of the rights created by the original section 235(b)(3) and, due to irreparable injuries suffered by Peltier and Von Kahl, compensatory and punitive damages as determined by a jury.

For information and offers to support, contact: Barry Bachrach, Esquire; Bowditch & Dewey, 311 Main Street, Worcester, MA 01615; (508) 926-3403 or bbachrach@bowditch.com