The Case of Oscar Lopez Rivera

The Case of Oscar López Rivera

Presented at Encuentro Sobre Derechos Humanos en San Juan, Puerto Rico on December 10, 2012 by Jan Susler of People’s Law Office

“The U.S. government categorically denies it has political prisoners in its gulags. It does it primarily to cover up the nefarious, barbaric and even criminal acts and practices it carries out against us and other regular prisoners, and to do it with impunity. It uses the denial as its license to violate our most basic human rights by subjecting us to isolation and sensory deprivation regimens that are nothing less than cruel and unusual punishment. It uses it to hoodwink its own citizens to believe that it doesn’t criminalize dissenters or opponents of its wars and other imperialistic practices. It does it to perpetuate the lie that it is the ultimate defender of freedom, justice, democracy and human rights in the world. And it uses it at times to further criminalize the political prisoners and/or our families and to disconnect us from our families, communities, supporters and the just and noble causes we served and try to continue serving.” -Oscar López Rivera1

Introduction

In the 1960′s and 70′s, the Puerto Rican community in Chicago, like so many other communities in the United States, was rebelling, resisting the violence and brutality of colonialism, racism, and exploitation. Its young leaders sought not only to battle against and expose these evils, but to help the community take control of its institutions, to instill a sense of hope. It was a time when anti-colonial, national liberation movements had prevailed throughout the world2 and anti-imperialist movements were fighting for independence and self-determination. It was a time when young men — including Oscar — were being drafted to fight the Vietnamese people’s war for liberation. It was a time when the Black Panther Party advocated armed self-defense, when police in Chicago assassinated the party’s young leaders.

Men and women such as Oscar López Rivera led these community struggles and were influenced by events, not just in their immediate neighborhood, but in the world, as they founded institutions which continue to serve the community today.

In Puerto Rico during this era, several armed clandestine political organizations formed and carried out actions to protest the presence of United States repressive forces. In the U.S., the FALN (Armed Forces of National Liberation) began during this period. Between 1974 and 1980, the FALN claimed responsibility for bombings of military, government and economic sites, mainly in Chicago and New York, to call attention to the colonial case of Puerto Rico and to demand the freedom of the Nationalist prisoners serving long sentences in U.S. prisons for their pro-independence actions in the 1950′s.3

Arrest and its aftermath

In 1980, eleven men and women were arrested and later charged with the overtly political charge of seditious conspiracy — conspiring to oppose U.S. authority over Puerto Rico by force, by membership in the FALN, and of related charges of weapons possession and transporting stolen cars across state lines.4 Oscar was not arrested at the time, but he was named as a codefendant in the indictment. His co-defendants were sentenced to terms in prison ranging between 55 and 90 years, consecutive to state court sentences for the same underlying conduct. The judge stated his regret that he did not have the power to give them the death penalty.5

In 1981, Oscar was arrested after a traffic stop, tried for the identical seditious conspiracy charge, convicted, and sentenced by the same judge to a prison term of 55 years. In 1987 he received a consecutive 15 year term for conspiracy to escape–a plot conceived and carried out by government agents and informants/provocateurs,6 resulting in a total sentence of 70 years.

Upon arrest, Oscar took the same position his co-defendants had taken, asserting that under international law, U.S. colonial control over Puerto Rico was a crime against humanity,7 that the courts of the U.S. had no jurisdiction to try him as a criminal, and that he should be remanded to an impartial international tribunal to have his status judged. While this position was recognized by international judicial bodies and other international fora8, the U.S. government refused to recognize it and proceeded to try him for criminal offenses. As his co-defendants had done, he presented no defense and pursued no appeal.

Disproportionate sentences

Oscar, like all Puerto Rican independentistas in U.S. custody, is punished for his beliefs and affiliations, for who he is, not for any act he committed. Government statistics evidence that those who commit non-political criminal offenses receive far lower sentences than do independence fighters. For example, in 1981, the year Oscar was sentenced for seditious conspiracy, the average federal sentence for murder was 10.3 years.9 Though he was not accused or convicted of hurting or killing anyone, his sentence was more than five times the average sentence for murder.

His 15 year sentence for conspiracy to escape is even more disproportionate. Conspiracy to escape is apparently so rare that the government doesn’t even maintain statistics, so we are left to compare his sentence to those for actual escape: Oscar’s sentence is more than 8 times longer than the average sentence for escape.10

Not surprisingly, Oscar has been held in prison far longer than those convicted of violent felonies. By the mid 1990′s, the average time actually served in prison by those convicted in federal court of violent felonies was just above four years;11 by the late 1990′s, for federal convictions of murder/manslaughter the average time served was 10.8 years.12

Oscar’s imprisonment for more than 31 years in prison gives him the unique and unenviable distinction of being the longest held Puerto Rican political prisoner in the history of the nation’s independence movement.13

Politically punitive treatment

The U.S. has not been satisfied with merely incapacitating Oscar by holding him all those years in prison. Prison officials immediately labeled him a “notorious and incorrigible criminal” and the FBI, using informants/provocateurs, targeted him in attempts to further criminalize him and legitimize his transfer to the most maximum security prisons, where he was subjected to isolation and sensory deprivation, labeled as a predator, and “the worst of the worst.”

For more than 12 years, he was held at the notorious high security U.S. Penitentiary at Marion, Illinois, and its successor, the Administrative Maximum Unit [ADX] at Florence, Colorado. At ADX, Oscar writes, “some of us were subjected to a sleep deprivation regimen that was pure and simple torture. I experienced it for 58 days and my sleeping patterns were so badly damaged that I still have serious problems sleeping.”14

At Marion and ADX, he was also the target of constant harassment such as cell searches, confiscation of reading and art materials, and placement in hot cells where there was contraband in order to issue us infractions, send us to the hole, and force us to start the “stepdown” program [to win transfer to a lower security prison] all over again.15

The extreme, prolonged isolation, which causes psychological and physical deterioration, has been widely condemned as violating international human rights standards.16 Indeed, the United Nations Special Rapporteur on Torture has declared that “segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit… whatever the name, solitary confinement should be banned by States as a punishment or extortion technique,” and that “indefinite and prolonged solitary confinement in excess of 15 days should also be subject to an absolute prohibition.”17

In 1998, after more than 12 years in total isolation — with his mental faculties and sense of humor very much intact, and with his self-taught art skills quite honed, despite every effort to break him — he was finally moved to a regular maximum security prison. Prison officials, however, imposed a special condition, requiring him to report his whereabouts every two hours to prison guards. The condition, which was to last for 18 months, has now been in place for a record-breaking 14 years.

In spite of prison policy permitting bedside visits and attendance at funerals, and ignoring letters of support from ministers and elected officials, prison authorities refused to let Oscar attend the bedsides of his ailing mother, father or older sister, and refused to let him attend any of their funerals. During those trying times, prison authorities even refused to allow him to purchase extra telephone time, limiting further his already restricted contact with his family.

Since 1999, the Federal Bureau of Prisons has denied all media requests to interview Oscar, in spite of policy allowing for media interviews of prisoners, in spite of allowing media interviews of other prisoners, and in spite of having allowed Oscar to be interviewed many times previously, without incident. Each rejection has used the identical, unsubstantiated excuse that “the interview could jeopardize security and disturb the orderly running of the institution.” This ban, preventing his voice from reaching his people and his community of supporters, harkens to bans imposed by other governments and regimes once regarded as anti-democratic.18

Since 2011, the government has extended this ban beyond media, rejecting requests by New York elected officials to meet with Oscar. Insisting that they will not be rebuffed, U.S. Congressman Luis Gutiérrez [D- Ill.], who has been allowed to visit, told the press, “He is our longest held political prisoner, and we aren’t going to accept no for an answer.”19

In 2011, the FBI actively intervened to prevent his release on parole, hijacking the hearing by anti-terrorist fear-mongering in order to influence an adverse decision, all the while attempting to humiliate Oscar. Eight prison officials — an exaggerated and intentionally intimidating presence — hovered near a chained and handcuffed Oscar as the hearing examiner improperly allowed live testimony from four people he wrongly characterized as “victims” — a wounded survivor and family members of people who died in a1975 explosion in New York — who spewed FBI-sown hatred in Oscar’s face. Knowing full well that Oscar was never accused or convicted of anything related to the explosion, this testimony formed a significant basis for the parole commission’s order denying parole and ordering a reconsideration hearing 15 years hence, in January 2026, when Oscar will be 83 years old.

The decision to deny parole was immediately denounced by the leaders of Puerto Rico’s political and civil society. Puerto Rico’s non-voting U.S. congressional representative — a supporter of statehood for Puerto Rico — said, “I don’t see how they can justify another 12 years of prison after he has spent practically 30 years in prison, and the others who were charged with the same conduct are already in the free community. It seems to me to be excessive punishment.”20 His concerns were echoed by the president of the Puerto Rico Bar Association, leaders of the political parties, labor and the religious sector.

Although on the eve of his 70th birthday Oscar admits, “the calendar is not my friend,” his resilience, his commitment, and his love are unflagging:

The last 14 years I have spent in this gulag, Terre Haute. And the harassment has not stopped. Several times my art materials have been confiscated or lost, art work destroyed, family visits stopped, and I still have to report to the jailers every two hours. In those 14 years, in spite of all the provocations and harassment, the jailers haven’t been able to accuse me of committing any infractions. But that doesn’t stop them from doing what they’ve been doing to me for the past 31 years. And I’m fairly certain the other political prisoners continue experiencing the same treatment and conditions. It could be argued that government’s denial of our existence has worked. But our wills and spirits are strong enough to continue resisting and struggling.21
Use of pardon throughout the world

The people of Puerto Rico on the island and in communities throughout the U.S. and their allies are waging a campaign asking President Obama to exercise his constitutional power of pardon to commute Oscar’s punitive sentence and grant his immediate release.

The campaign faces a significant challenge, as President Obama has racked up the stingiest record for commutations and pardons in modern history, and the U.S. Department of Justice Office of Pardon Attorney is guilty of rampant racism and misrepresentation in the recommendations it passes along to the president.22

At the same time, governments across the world routinely recognize and utilize the healing power of pardons, especially at holiday times like this. This year, prisoners — including political prisoners in some countries — have already been released in countries large and small, often at the urging of the U.S. government.23 President Obama and his Secretary of State have both recently stated publicly that “a single political prisoner is one too many.”24

Some of the countries that have released prisoners this year include Iran (at least 130 political prisoners),25 Cuba,26 Syria,27 Russia,28 Gambia,29 Ethiopia (1,900 as part of the country’s annual new year’s mass amnesty),30 Thailand,31 Afghanistan,32 Pakistan,33 Azerbaijan,34 and Belarus.35 In Burma, 500 hundred prisoners, including political prisoners, were released in September as the president embarked for the United Nations, describing the move as an effort to “bring tranquility and perpetual peace” to the country.36 Hundreds more were released on the eve of Mr. Obama’s November visit to that country, as part of that country’s efforts to win international favor and lift sanctions.37 In October, Egypt’s new president Mohamed Morsi granted a sweeping pardon to political prisoners which could number as many as 5,000, a concession to the movement which ended the previous regime.38

Mr. Obama, on the other hand, has granted one sentence commutation and 22 pardons,39 not counting the annual Thanksgiving turkeys.40 Half of the people he pardoned never served any time in jail, and most of them had been released years ago.41 He has denied 1,019 pardon petitions.42

Critics, including a lawyer who served as Pardon Attorney under both Republican and Democratic administrations, have widely encouraged him to more liberally exercise the constitutional power he holds.43

Conclusion

There is significant precedent for Mr. Obama to commute Oscar López Rivera’s disproportionate sentence.44 As a result of international campaigns waged by the Puerto Rican people and their allies, three United States presidents commuted the sentences of Puerto Rican political prisoners: President Harry Truman in 1952 commuted the death sentence of Oscar Collazo; President Jimmy Carter in 1977 and 1979 commuted the lengthy sentences of Andrés Figueroa Cordero, Rafael Cancel Miranda, Lolita Lebrón, Irving Flores and Oscar Collazo after they served 25 and 29 years in prison; and President Bill Clinton in 1999 commuted the disproportionate sentences of Oscar’s co-defendants Edwin Cortés, Elizam Escobar, Ricardo Jiménez, Adolfo Matos, Dylcia Pagán, Luis Rosa, Alberto Rodríguez, Alicia Rodríguez, Ida Luz Rodríguez, Alejandrina Torres, and Carmen Valentín, after they served more than 16 and 19 years behind bars, and also commuted the sentence of Juan Segarra Palmer after he served 19 years in prison.

At the time of their release, the president offered to release Oscar on the condition that he serve an additional ten years in prison. The president’s offer, however, failed to include two others.

While Oscar encouraged his compañeros/as to accept the commutation, he decided he could not accept, as he did not want to leave anyone behind. Had he accepted the offer, he would have been released in 2009. Those not included in the offer have since been released on parole, leaving Oscar as the sole remaining political prisoner from that case.

In granting the 1999 commutations, President Clinton determined that “the prisoners were serving extremely lengthy sentences — in some cases 90 years — which were out of proportion to their crimes.”45 The fact that none of them had been convicted of hurting or killing anyone was a factor mentioned by the president:

our society believes … that a punishment should fit the crime. Whatever the conduct of the other FALN members may have been, these petitioners—while convicted of serious crimes — were not convicted of crimes involving the killing or maiming of any individuals.46

President Clinton acknowledged being moved by the support from “various Members of Congress, a number of religious organizations, labor organizations, human rights groups, and Hispanic civic and community groups” along with “widespread support across the political spectrum within Puerto Rico,” and thousands of letters requesting their release.47 He also indicated he was moved by “worldwide support on humanitarian grounds from numerous quarters,” pointing specifically to Former President Jimmy Carter, Nobel Prize Laureate South African Archbishop Desmond Tutu, and Coretta Scott King.48

Those same reasons still obtain, and that support has only continued to grow in the 13 years since Oscar’s co-defendants were released. With your support — and hopefully in short order — President Obama can take his place in this line of history, and grant Oscar’s release, so that he may live out the rest of his years in the comfort and warm embrace of his family and his people.

 

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1. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

2. “The independence of Ghana (1957), the agony of the Congo (Lumumba was murdered in January 1961), the independence of France’s sub-Saharan colonies following the Gaullist referendum of 1959, finally the Algerian Revolution (which might plausibly mark our schema here with its internal high point, the Battle of Algiers, in January-March 1957, as with its diplomatic resolution in 1962)–all of these signal the convulsive birth of what will come in time to be known as the 60s.” Fredric Jameson, “Periodizing the 60s”, in Sayres, Sohnya, Stephanson, Anders, Aronowitz, Stanley, and Jameson, Fredric, The 60s Without Apology Minneapolis: University of Minnesota Press, 1984, p. 180.

3. “Terrorists without a cause,” Chicago Tribune editorial, March 18, 1980, Sec. 2, p.2. (“Most of the incidents have involved bombs, fortunately so placed and timed as to damage property rather than persons…But again the terrorists were out to call attention to their cause rather than to shed blood.”).

4. United States v. Carlos Alberto Torres et al., No. 80 CR 736 (N.D. Ill.).

5. At the sentencing hearing, which took place soon after the holiday marking George Washington’s birthday, Federal judge Thomas McMillen made the following retort to an observation by one of the prisoners about the irony of the occasion: “You mentioned George Washington. You know, if George Washington had been captured by the British during the American Revolution he wouldn’t have been put in the penitentiary or jailed; he would have been executed. And that, as a matter of fact, is the penalty which should be imposed on Count 1 [seditious conspiracy] in this case.” U.S. v. Carlos Torres, Transcript of Sentencing Hearing, February 18, 1981, p. 20.

6. United States v. Oscar Lopez et al., No. 86 CR 513 (N.D. Ill.)

7. In 1960, the United Nations General Assembly called for “a speedy and unconditional end [to] colonialism in all its forms and manifestations.” Resolution 1514 (XV). By 1970, that same body declared that “further continuation of colonialism in all its forms and manifestations is a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law.” Resolution 2621 (XXV). The latter resolution recognized the right of colonial peoples to do precisely what the thirteen colonies which would later comprise the United States had done: “to struggle by all necessary means at their disposal against colonial powers which suppress their aspiration for freedom and independence.” The same United Nations, through its Decolonization Committee, established to monitor the implementation of its resolutions mandating an end to colonialism, has repeatedly declared that Resolution 1514 (XV) applies to the case of Puerto Rico.

8. See, e.g., Verdict of the Permanent Peoples’ Tribunal, Session on Puerto Rico (Barcelona, 1989); Verdict of the Special International Tribunal on the Violation of Human Rights of Political Prisoners and Prisoners of War in United States Prisons and Jails (New York, 1990); Verdict of the International Tribunal of Indigenous Peoples and Oppressed Nations in the U.S.A. (San Francisco, 1992).

9. Administrative Office of the United States District Court, Sentences Imposed Chart For Year Ended June 30, 1981 (Washington, D.C.) , p. 145. See also, Alice Vachss, “Megan’s Law Won’t Reduce Sex Crimes”, New York Times, July 31, 1995, p. A9 (“According to the most recent Bureau of Justice report, the national average sentence for convicted violent felons was less than eight years, of which they served less than four in prison.”).

10. The average sentence for escape during the decade of 1980 to 1990 was 20.9 months (1 year 8 months). Administrative Offices of the United States Courts.

11. Federal Criminal Case Processing, 1980-89 With Preliminary Data for 1990: A Federal Justice Statistics Report (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 1991), p. 18 (between 1985 and 1990, for violent offenses, the average time served until first release ranged from a low of 48.8 months (4.0 years) to a high of 54.2 months (4.5 years); Sourcebook of Criminal Justice Statistics 1993, Table 6.92.

12. Kathleen Maguire and Ann L. Pastore, eds., Sourcebook of Criminal Justice Statistics 1997 (U.S. Department of Justice, Bureau of Justice Statistics: Washington, D.C. 1998) Table 5.57, p. 431. See also, Sourcebook of Criminal Justice Statistics 1993, p. 652, Table 6.92 (average time served in federal prison for murder 5.4 years); National Corrections Reporting Program, 1992, p. 34 (average time served in state prison 8 years); Michael Pollan, “How Pot Has Grown”, New York Times Magazine, February 19, 1995, p. 32. (“An American convicted of murder can expect to spend, on average, less than nine years behind bars.”)

13. José “Che” Paralitici, Sentencia Impuesta: 100 Años de Encarcelamientos por la Independencia de Puerto Rico (Ediciones Puerto, San Juan, Puerto Rico, 2004).

14. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

15. Id.

16. Amnesty International, Allegations of Ill-Treatment in Marion Prison, Illinois, USA, May 1987, p. 15 (“[w]ithin Marion, violations of the [United Nations] Standard Minimum Rules [for the Treatment of Prisoners] are common… There is hardly a rule in the Standard Minimum Rules that is not infringed in some way or other.”); L.C. Dorsey, the National Interreligious Task Force on Criminal Justice, Marion Prison: Progressive Correction or Legalized Torture? (New York), p. 6 (“The absence of balance in the procedures at Marion prison, where security measures override the individual need for human contact, spiritual fulfillment, and fellowship, becomes an excuse for the constant show of sheer force. The conditions of Marion prison…constitute, in our estimation, psychological pain and agony tantamount to torture.”); Human Rights Watch, Prison Conditions in the United States (New York: 1991), pp. 3, 75-77 (noting the proliferation of state maximum security prisons modeled after Marion, condemning as dangerous the trend toward “Marionization” of prison in the United States).

17. “Solitary confinement should be banned in most cases, UN expert says,” United Nations News Centre, October 18, 2011, http://www.un.org/apps/news/story.asp?NewsID=40097#.ULw10ORfDN8.

18. Francis Welch, “The ‘broadcast ban’ on Sinn Fein,” BBC, April 5, 2005, http://news.bbc.co.uk/2/hi/uk_news/politics/4409447.stm; Glenn Frankel, “Britain’s Media Ban on Terrorist Groups Remains Controversial: Censorship: Voices of revered statesmen are silenced in history program broadcast to schoolchildren in Northern Ireland,” Los Angeles Times, November 18, 1990, http://articles.latimes.com/1990-11-1/news/mn6586_1_northern-ireland. See also, Ed Moloney, “Media Censorship During ‘the Troubles’: A leading Irish journalist ponders the consequences, Nieman Reports, of the Nieman Foundation for Journalism at Harvard, Summer 2000, http://www.nieman.harvard.edu/reports/article/101953/Media-Censorship-During-the-Troubles.aspx.

19. “Piden liberar a preso político Oscar López Rivera,” December 1, 2012, http://aquiestapr.blogspot.com/2012/12/piden-liberar-preso-politico-oscar.html; “Políticos de NY abogan por la libertad de Oscar López Rivera,” El Diario/La Prensa, December 1, 2012, http://www.eldiariony.com/Politicos-visitaran-a-preso-nacionalista-puertorriqueno.

20. José A. Delgado, “‘No se justifica mantener en prisión a Oscar López’, dice Pierluisi Piensa que los boricuas demócratas del Congreso pueden hacer un nuevo reclamo a la Junta de Libertad Bajo Palabra, El Nuevo Día, January 6, 2011, http://www.elnuevodia.com/nosejustificamantenerenprisionaoscarlopezdicepierluisi-858086.html

21. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

22. Dafna Linzer and Jennifer LaFleur, “Presidential Pardons Heavily Favor Whites,” ProPublica, December 3, 2011, http://www.propublica.org/article/shades-of-mercy-presidential-forgiveness-heavily-favors-whites; Dafna Linzer, “Contrasting Colors, Contrasting Results,” ProPublica, December 3, 2011, http://www.propublica.org/special/contrasting-colors-contrasting-results.

23. See, e.g., Associated Press, “Azerbaijan pardons prisoners jailed after protests,” Fox News, June 22, 2012, http://www.foxnews.com/world/2012/06/22/azerbaijan-pardons-prisoners-jailed-after-protests/ (“U.S. Secretary of State Hillary Rodham Clinton called for jailed opposition figures to be released while visiting the former Soviet nation earlier this month.”); “Washington Welcomes Release of Political Prisoners in Belarus,” Rianovosti, April 17, 2012, http://en.ria.ru/world/20120417/172864234.html (U.S. State Department spokesperson Mark Toner said, “This, coupled with previous releases, represents a significant step. “We urge the Government of Belarus to immediately and unconditionally free all remaining political prisoners and ensure the full restoration of their civil and political rights.”); Juan Carlos Chavez, “US calls for immediate release of government opponents in Cuba, Miami Herald, April 4, 2012, http://www.miamiherald.com/2012/04/04/2732066/us-calls-for-immediate-release.html; Mark C. Toner, “Message on the Twenty-Third Anniversary of Tiananmen Square,” June 3, 2012, http://www.state.gov/r/pa/prs/ps/2012/06/191692.htm (Toner is Deputy Spokesperson, Office of the Spokesperson, of the U.S. State Department); Associated Press, “US Ambassador Rice demands Egypt’s leaders release 19 Americans facing trial,” Washington Post, February 6, 2012, http://www.washingtonpost.com/national/national-security/us-ambassador-rice-demands-egypts-leaders-release-19-americans-facing-trial/2012/02/06/gIQAToNhtQ_story.html.