Federal Panel Reviewing Native American Sentencing

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News Article

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School of Law


Committee is evaluating whether those living on reservations face disproportionately harsher penalties than other citizens

Spurred by concerns from judges, prosecutors and tribal leaders, a federal panel is reviewing whether Native Americans living on reservations face disproportionately harsher punishments for crimes than other Americans.

Ralph Erickson, chief federal district court judge for North Dakota and head of the U.S. Sentencing Commission committee conducting the review, is among those calling for an examination of the sentencing practices on the nation's 325 reservations.

"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," Judge Erickson, who was appointed by President George W. Bush, wrote in a 2014 letter to a fellow jurist.

The key reason for the discrepancies is that Native Americans typically are prosecuted under federal law for serious offenses committed on reservations. State punishments for the same crimes tend to be lighter.

"Our problem is that we just don't know how much different the disparities are," Judge Erickson said in a recent interview.

The committee consists of nearly two dozen judges and federal and tribal officials--a mix of Democratic and Republican appointees--including Troy Eid, the former Bush-appointed U.S. attorney of Colorado who wrote a letter urging the Sentencing Commission to look into the issue.

Heather Dawn Thompson, a former South Dakota federal prosecutor who now represents tribes, said she wants her fellow Native Americans to have more input as to who prosecutes crimes on reservations, and appropriate punishments.

"Every American, except Native Americans, has a direct democratic voice in their local and state laws," Ms. Thompson said. "For Native Americans, this is all governed federally."

Neil Fulton, the chief federal public defender for North and South Dakota and a member of the review committee, pointed to several cases he said illustrated the sentencing disparities.

In one, a Native American man Mr. Fulton represented in 2011 was sentenced to 45 months in prison for assault after punching another man in the face during a fight at a casino on a North Dakota reservation.

"My sense is if that this happened in a bar in Bismarck--if it gets charged at all--I don't see the sentence that high," he said.

Another case that has drawn scrutiny is that of Dana Deegan, who lived on North Dakota's Fort Berthold Indian Reservation and is serving a 10-year prison sentence after pleading guilty to second-degree murder for abandoning her newborn son to die in 1998.

The penalty was upheld by the Eighth Circuit Court of Appeals in 2010, but in dissent, Judge Myron Bright wrote that Ms. Deegan's punishment "represents the most clear sentencing error" he had seen. He noted a similar case where a North Dakota State University woman pleaded guilty to negligent homicide in state court and was sentenced to three years of supervised probation.

Judge Bright has pressed the Sentencing Commission to take action and has cited two other similar North Dakota cases that occurred off the reservation and also were treated more leniently in state court. In those instances, punishment ranged from a suspended one-year jail sentence to two years in prison.

There are about 5.2 million Native Americans in the U.S., and about 22% live on reservations or other tribal lands, according to census data.

In the past five years, the number of Native Americans in the federal prison system has jumped 27%, an increase that helped prompt the review. In South Dakota, Native Americans make up nearly 60% of the federal caseload, but only 9% of the population, federal figures show.

In a 2008 article in the Marquette Law Review, lawyer Timothy Droske noted that a defendant convicted of assault in South Dakota state court received an average sentence of 29 months. A Native American defendant on a South Dakota Indian reservation who was prosecuted in federal court for the same offense received an average penalty of 47 months, Mr. Droske wrote.

A 2014 North Dakota Law Review article by lead author B.J. Jones said Native American defendants convicted in federal court in the state likely were to serve out the majority of five-year sentences because there is no parole under the federal system.

Mr. Jones, director of the Tribal Judicial Institute at University of North Dakota's law school, noted in the article that a comparable sentence in North Dakota state court may result in defendants serving less than 25% of their time, due to parole or good behavior.

A 2003 Sentencing Commission study found the impact of federal penalties on Native Americans varied, depending on the crime and location. But the survey showed several clear disparities.

In New Mexico, for example, the average sentence for a Native American convicted of assault in state court was six months, compared with an average of 54 months for Native Americans convicted of assault in New Mexico federal court.

Part of the focus of the current committee, which began meeting last month and is set to issue its report in May 2016, will be to gather comparable state and federal sentencing data to determine if there is a disparity and if changes are needed. The panel will submit recommendations to the full Sentencing Commission, which establishes sentencing policies for federal courts.