The U.S. Sentencing Commission is currently investigating the disproportionate incarceration of Native Americans in the U.S., particularly on reservations.
The Tribal Issues Advisory Group–made up of 22 judges and law-enforcement officials, 11 of which are Natives–will be spearheading this extensive federal review.
“No matter how long I have been sentencing in Indian Country, I find it gut-wrenching when I am asked by a family member of a person I have sentenced why Indians are sentenced to longer sentences than white people who commit the same crime,” wrote Ralph Erickson, head of the committee and chief federal district court judge for North Dakota, in a 2014 letter.
Over the past 5 years, the number of Native Americans incarcerated within the federal prison system has increased by 27%. In South Dakota, Native Americans make up nearly 60% of federal cases, yet they account for a mere 9% of the state population.
All punishment on reservations is tried in federal court, as opposed to local or state governments. In many cases, this skews what might otherwise be a routine proceeding.
“Every American, except Native Americans, has a direct democratic voice in their local and state laws. For Native Americans, this is all governed federally,” stated Heather Dawn Thompson, a former South Dakota federal prosecutor, to the Wall Street Journal.
The U.S. Sentencing Commission’s 2003 “Report of the Native American Advisory Group” noted that “The average sentence received by an Indian person convicted of assault in New Mexico state court is six months. The average for an Indian convicted of assault in federal court in New Mexico is 54 months.”
Neil Fulton, a member of the committee and and chief federal public defender for North and South Dakota, cites a number of cases he’s encountered as clear examples of this disparity.
In 2011, Fulton represented a Native American man who had punched a man in a casino fight on a North Dakota reservation. He was sentenced to 45 months in prison for assault. Fulton suspects the charge for such a crime would be significantly less severe in any other context.
The case of Dana Deegan shows that these sentencing issues can go both ways. Deegan pleaded guilty to second-degree murder after abandoning her newborn son to die in 1998. She left court with a 10 year sentence, referred to by Judge Myron Bright as “the most clear sentencing error” he’d witnessed.
The issue of inequality within the court system is immensely complex. It’s difficult to pin down cut and dry causes and solutions, but the Tribal Issues Advisory Group strives to create some momentum for a better future.
The committee began meeting last month and plans to release their report in May 2016. Formal recommendations will be issued to the overarching Sentencing Committee to establish a plan to eliminating clear injustice in the court system.
The Lakota People’s Law Project issued a report in February about the disproportionate incarceration rates for Native Americans. We are committed to help fixing a broken criminal justice system that continues to harm Indians and their families at disproportionate rates.