“Today I am finally free! They may have imprisoned me, but they never took my spirit!” Peltier said in a statement. “Thank you to all my supporters throughout the world who fought for my freedom. I am finally going home. I look forward to seeing my friends, my family, and my community. It’s a good day today.”

NDN Collective, an Indigenous rights group that has been leading Peltier’s legal effort, shared photos of Peltier moments after leaving prison, outside in the sun.

Peltier, 80, had been in prison ever since the federal government accused him of murdering two FBI agents in a 1975 shoot-out on Pine Ridge Reservation in South Dakota.

There was never evidence that he committed a crime, and federal law enforcement officials later admitted they never did figure out who shot those agents. But the FBI needed someone to take the fall after losing two of its agents, and all of Peltier’s co-defendants were acquitted based on self-defense. So, Peltier became their guy.

His trial was rife with misconduct. The FBI threatened and coerced witnesses into lying. Federal prosecutors hid evidence that exonerated Peltier. A juror acknowledged on the second day of the trial that she had “prejudice against Indians,” but she was kept on anyway.

The government’s case fell apart after these revelations, so it simply revised its charges against Peltier to “aiding and abetting” whoever did kill the agents, based entirely on the fact that he was one of dozens of people present when the shoot-out took place. Peltier was convicted and sentenced to two consecutive life terms.

Over the decades, virtually every international human rights leader, including Mother Teresa, Desmond Tutu and Pope Francis, denounced Peltier’s imprisonment and urged his release. Members of Congress, celebrities, tribal leaders, Indigenous rights groups and millions of regular people called for his freedom. Peltier maintained his innocence the entire time, which almost certainly contributed to him remaining behind bars.

In a stunning final act, Joe Biden, a proud ally to Native American communities and tribes, last month granted clemency to Peltier with just minutes left in his presidency.

Biden did not grant a full pardon, however; he commuted Peltier’s sentence to home confinement. That means Peltier, an enrolled citizen of the Turtle Mountain Band of Chippewa Indians, can return home to Turtle Mountain Reservation in North Dakota but must remain in his house.

NDN Collective is hosting and livestreaming a celebratory event in Belcourt, North Dakota, to welcome Peltier home. The group helped to purchase and prepare a house for Peltier to move into upon his return home.

“Today our elder Leonard Peltier walks into the open arms of his people,” said Nick Tilsen, founder and CEO of NDN Collective. “Peltier’s liberation is invaluable in and of itself — yet just as his wrongful incarceration represented the oppression of Indigenous Peoples everywhere, his release today is a symbol of our collective power and inherent freedom.”

Peltier is in poor health, which was a factor in Biden releasing him.

He is now blind in one eye and uses a walker to get around. Due to frequent lockdowns in his maximum-security prison in Florida, he spent most of his later years confined to inches of space in a cell. His health problems include an aortic aneurysm and diabetes, which sent him to the hospital in July with “open wounds and tissue death on his toes and feet.” He was hospitalized again in October.

And an asterisk amid the celebration is that Peltier still faces home confinement. Biden almost certainly opted for commuting Peltier’s sentence over a pardon (which would have meant he was fully free) as a nod to the FBI, which has strongly opposed Peltier ever being released — based on incredibly flawed arguments — and criticized Biden’s decision to do so.

This detail makes Peltier’s release somewhat bittersweet for organizations that have long advocated for his freedom.

“Leonard Peltier’s release is the right thing to do given the serious and ongoing human rights concerns about the fairness of his trial, his nearly 50 years behind bars, his health and his age,” said Paul O’Brien, executive director of Amnesty International USA. “While we welcome his release from prison, he should not be restricted to home confinement.”

Discussion Questions

1. Explain the presidential right of clemency. How does the presidential right of clemency compare to the presidential right to issue pardons?

Pursuant to Article II of the U.S. Constitution, U.S. presidents have the constitutional power to exercise leniency to individuals who have committed federal crimes.

There are two main types of clemency: (1) commutations; and (2) pardons. A commutation reduces a sentence of imprisonment or home confinement, partially or completely, but does not imply innocence or erase a conviction. A pardon also does not signify innocence; instead, it is an expression of presidential forgiveness, giving the offender a “clean slate” and removing the consequences of a conviction. A pardon does not remove or expunge the offender’s court records; however, it restores their civil rights, allowing them to vote, own a gun, etc.

A president can only issue a commutation or pardon for a federal conviction. State offenses do not apply. An offender can reapply if their clemency petition is denied, and there is no waiting period.

The Office of the Pardon Attorney within the Justice Department reviews and investigates clemency applications before giving the president advice and recommendations. A president can issue clemency unilaterally, without any recommendations.

2. As indicated in the article, former President Joe Biden did not grant Peltier a full pardon; instead, he commuted Peltier’s sentence to home confinement. Based on the information provided in the article, are you surprised that former President Biden did not grant Peltier a full pardon? Why or why not?

This is an opinion question, so student responses may vary. In your author’s opinion, the fact that former President Biden did not grant Peltier a full pardon comes as no particular surprise—Keep in mind that it took almost 50 years before any presidential response to Peltier’s conviction occurred (Peltier was convicted in 1977, meaning that over time, eight U.S. presidents—Carter, Reagan, Bush, Sr., Clinton, Bush, Jr., Obama, Trump, and Biden—had an opportunity to take executive action against Peltier’s conviction). Remember, the decision to issue a commutation or a pardon rests exclusively with the U.S. president; in other words, it is entirely discretionary. The best way to determine the reason(s) why former President Biden chose to act the way he did would be to hear directly from him.

3. Conduct some internet research regarding 28 U.S. Code Section 2513 and explain the federal government’s potential liability in this case for unjust conviction and imprisonment. In your reasoned opinion, does Leonard Peltier have a legal basis for seeking compensation from the federal government for unjust conviction and imprisonment? Explain your response.

According to the language of 28 U.S. Code Section 2513 (“Unjust Conviction and Imprisonment”):

(a) Any person suing under Section 1495 of this title (“Damages for Unjust Conviction and Imprisonment; Claim against the United States”) must allege and prove that:

(1)  His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate or reversing such conviction, or that he has been pardoned upon the state ground of innocence and unjust conviction; and

(2)  He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.

(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.

(c) No pardon or certified copy of a pardon shall be considered by the United States Court of Federal Claims unless it contains recitals that the pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired.

(d) The Court may permit the plaintiff to prosecute such action in forma pauperis.

(e) The amount of damages awarded shall not exceed $100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death and $50,000 for each 12-month period of incarceration for any other plaintiff.

In your author’s opinion, Leonard Peltier has no legal basis for seeking compensation from the federal government for unjust conviction and imprisonment. Based on the requirements set forth in 28 U.S. Code Section 513, Peltier’s conviction has not been set aside on the ground that he is not guilty of the offense for which was convicted, nor has he been pardoned.

https://www.law.cornell.edu/uscode/text/28/2513