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South Dakota Tribal Relations Meeting Minutes 14 November 2002
Third Meeting Room 464
2002 Interim State Capitol
November 14 & 15, 2002 Pierre, South Dakota
Thursday, November 14, 2002
The third meeting of the State-Tribal Relations Committee was called to order by Senator J.E. "Jim" Putnam, Chair, at 10:00 a.m., November 14, 2002, in Room 464 of the State Capitol, Pierre, South Dakota.
A quorum was determined with the following members answering the roll call: Senators Arnold Brown, Patricia de Hueck, and J.E. "Jim" Putnam; and Representatives Stan Adelstein, Jean Hunhoff, Paul Valandra, and Thomas Van Norman. Senator Ron Volesky and Representative Barry Jensen were excused.
Staff members present included Tom Magedanz, Principal Research Analyst, and Rhonda Purkapile, Senior Legislative Secretary.
(NOTE: For sake of continuity, the following minutes are not necessarily in chronological order. Also, all referenced documents are on file with the Master Minutes.)
Chair Putnam requested a moment of silence in honor of Senator Dick Hagen, who passed away this summer. Senator Hagen was an original member of the State-Tribal Relations Committee and had been with the committee since 1993.
Overview of the South Dakota Prison System as it Affects Native Americans
Ms. Laurie Feiler, Department of Corrections, presented the committee with a comparison of state Native American population vs. Native American inmate population for a seven-state region which included South Dakota, North Dakota, Montana, Wyoming, Minnesota, Nebraska, and Iowa (Document #1). Ms. Feiler noted that based on the 2000 U.S. Census Report, 8.3 percent of South Dakota’s population is Native American. Based on the 2001 Corrections Yearbook, 22.3 percent of the South Dakota prison population is Native Americans. Ms. Feiler stated that this indicates that the percentage of Native Americans in the state prison system is 2.7 times higher than the percentage of Native Americans in South Dakota’s general population. She found similar rates in the surrounding states, with rates in Minnesota, Iowa, and Nebraska somewhat higher.
Ms. Feiler reported that over the last ten-year period, there have been 16 suicides in the adult prison system. Three of those individuals (19 percent) were Native American and 13 were Caucasian. During that same ten-year time period, three Native American men passed away in prison from natural causes and two were homicide victims.
Ms. Feiler presented the committee with a copy of the weekly program bulletin from the Durfee State Prison in Springfield (Document #2), with a list of Native American activities allowed at the S.D. State Prison in Sioux Falls (Document #3), and with a list of property items allowed specific to Native American church activities (Document #4).
Chair Putnam asked whether there is a similar property sheet for other religions in the prison population. Ms. Feiler replied that there is an overall property list that applies to the basic prison population. Individual property lists are based on specific religions.
Representative Adelstein commented that he has received complaints with regard to defining items on the list and asked how these lists are determined. Ms. Feiler replied that if an individual has a dispute concerning the property list, there is an administrative process the person can go through to have the list reviewed. Ms. Feiler added that any property that an inmate has in the cell must be authorized.
Chair Putnam asked whether drum practices or sweats are taking place at other prison facilities besides Springfield and Sioux Falls. Ms. Feiler responded affirmatively, noting that there is a sweat lodge located at the Women’s Prison in Pierre and there are other activities available at the trusty units. Ms. Feiler stated her understanding that sweats are limited to once per week so more inmates can participate. She noted that regardless of the activity, inmates who are in disciplinary or administrative segregation are limited as to the activities in which they may participate. Administrative segregation is a long-term placement for those inmates who have had a hard time adjusting to prison. Disciplinary segregation is a short-term reaction or punishment for a specific rule violation. Property is more restricted in disciplinary segregation than administrative segregation.
Chair Putnam asked whether inmates are allowed more property if they are a priest or hold a specific religious position, and Ms. Feiler replied that they are not.
Senator Brown asked whether the restriction or allowance of activities is based on the level of the crime committed by the individual. Ms. Feiler replied that the Department of Corrections (DOC) has a classification system to determine the placement of inmates within the system. This classification is based on: 1) the current offense; 2) history of violence; 3) escape potential; 4) institutional relationships; and 5) length of sentence remaining. Ms. Feiler noted that even inmates who are in maximum custody status are living in the general prison population. When an inmate is temporarily pulled from regular housing for disciplinary or administrative segregation, it is mostly based on institutional conduct.
Senator de Hueck asked whether inmates are transferred to other institutions when placed in administrative segregation. Ms. Feiler replied that administrative segregation usually means that an inmate’s housing assignment is not working and they could be transferred to another facility.
Senator de Hueck asked Ms. Feiler if she has statistics on the number of Native Americans serving in disciplinary and administrative segregation. Ms. Feiler indicated that she could provide that information to the committee after checking her monthly reports.
Responding to questions, Ms. Feiler indicated that there are instances when an inmate could be placed in a "stripped down cell" if the inmate’s behavior is still not satisfactory while in administrative segregation.
In response to questions, Ms. Feiler indicated that the DOC does a thorough investigation whenever an inmate commits suicide. Aside from the coroner, the Division of Criminal Investigation also becomes involved in the investigation. Senator de Hueck asked whether a final report is prepared and shared with the family members after the investigation. Ms. Feiler stated that she would check on the procedures and get this information to the committee.
Representative Hunhoff asked whether any of the 16 suicides over the last ten years had been receiving mental health services. Ms. Feiler noted that she would have to go back and check individual records before she could accurately answer the question.
Representative Hunhoff asked about the percentage of Native American employees within the prison system. Ms. Feiler replied that one percent of their employees are Native American. Representative Hunhoff asked whether the DOC contracts with medicine men to provide health care services. Ms. Feiler replied that the department contracts with the Department of Health to provide health care and with the Department of Human Services for mental health services. Ms. Feiler noted that medicine men are allowed to come into the prison about twice a month and work with the inmates, but the DOC does not have a specific contract with them.
Representative Hunhoff asked whether Native American inmates have an opportunity to provide input about the cultural activities available to them in prison. Ms. Feiler replied that as a state system, there are certain programs the department decides it will offer. She stated that she would check to see if the project application system is still in place.
Representative Hunhoff asked if employee orientation covers different cultures of inmates. Ms. Feiler replied that both preservice and inservice employee orientation is offered and cultural differences are included.
In response to questions on health care, Ms. Feiler reported that the Department of Health is responsible for health care of the inmates within the DOC institutions. If an inmate develops a health care concern, he or she would then be referred to the appropriate specialist based on the diagnosis by the medical staff. The DOC does not set health care policy, but it does manage where the inmate is housed, although access to health care services sometimes drives housing decisions. Chair Putnam asked whether DOC has rules with regard to inmates misbehaving due to a health issue. Ms. Feiler responded that the access to health care policy is the same for all inmates. If an inmate was unaware of improper behavior due to mental health or health-related issues, the inmate would not be held accountable for that behavior. Ms. Feiler noted that the DOC does have policies with regard to these issues.
Senator de Hueck asked what process inmates would go through if they did not feel they were getting proper care and wanted to see another physician. Ms. Feiler stated that she would have to check with the Department of Health on their policies. She noted that there is an administrative remedy process set up within the DOC; however, she noted that DOC does not interfere with the medical care provided by the Department of Health. The Department of Health makes the decisions on medical issues.
In response to committee questions, Ms. Feiler noted that one-third of the women in the Women’s Prison are Native American, which is higher than the percentage of Native American males in the prison system.
Representative Valandra asked about the annual per capita expenditure on health care at the prison. Ms. Feiler replied that DOC spends $6.80 per inmate per day for health care.
Representative Valandra asked about the trends over the last few years that would account for the percentage of the South Dakota Native American population in prison. Ms. Feiler replied that the DOC does contract with the federal government to house federal prisoners, many of whom are Native American. She noted that DOC is contracting at the women’s prison to take federal prisoners, many of whom are Native American, so they can remain closer to their families while incarcerated.
Chair Putnam asked whether a medical copay plan exists for inmates. Ms. Feiler replied that there is a medical copay policy that has been in existence for several years. The inmate is charged $2 per visit to the doctor; however, if it is a doctor-initiated return visit, there is no charge. Inmates are never denied medical visits, even if they have no money in their accounts. There are no charges beyond the $2 per visit charge.
In response to questions, Ms. Feiler indicated that virtually all inmates who are in minimum security classification and are able are working. Inmates are required to work or participate in certain programs, and there are consequences if they do not. There is some discretion on what jobs they are placed in based on aptitude and other factors. Ms. Feiler noted that inmates generally are very willing to participate, although there is not a lot of negotiation on which job the inmate may select.
Representative Valandra asked about DOC policy with regard to death bed visits or funeral attendance. Ms. Feiler replied that maximum security inmates are not allowed off-site visits. Medium and minimum security inmates are allowed off-site visits with certain mileage restrictions. Inmates are only allowed one death bed visit or funeral visit, and they are not allowed visits on the reservations.
Representative Valandra asked if the DOC has a higher percentage of out-of-state inmates. Ms. Feiler noted that the inmate population continues to grow and a percentage of these inmates are not from South Dakota. She noted that in the past the prison system was located and much more focused in Sioux Falls. This has changed over the years with other facilities being added to the prison system. Ms. Feiler stated that 50 percent of the inmates coming into orientation are going out for placement at other facilities than Sioux Falls. This means that the inmates remaining in Sioux Falls are more serious offenders, and the Sioux Falls facility is now considered the maximum security facility. She noted that there is a different profile of inmates today.
Representative Valandra commented that there have been statutory changes over the years that have contributed to the increase in number of inmates. Chair Putnam added that the Legislature has increased penalties for certain offenses that were not uniformly punished in the past.
In response to questions, Ms. Feiler indicated that the DOC has an inmate financial responsibility policy which attempts to provide a certain amount of weekly and personal spending money for the inmate. The limit on the account used to be $100 per month with a limit of spending no more than $25 per week. This has been increased to $140 per month with a $35 per week spending limit. Money is deposited into this account from family members or from money earned by the inmate at their prison job. She noted that there is a standard commissary list of items that can be purchased with these funds. If an inmate receives more than $140 over a 28-day period, that extra is split in half between a disbursement account and a savings account. The DOC will take a percentage of this amount for incarceration costs if there are no disbursements required from the account.
Senator de Hueck requested information on the number of Native American inmates serving in administrative and disciplinary segregation and the length of the duration. She asked whether there is administrative segregation in the Women’s Prison, and Ms. Feiler responded affirmatively. Senator de Hueck asked whether any of the 16 suicides over the last 10 years occurred while an inmate was in administrative segregation. Ms. Feiler replied that the most recent inmate suicide occurred while the inmate was out on work release. Some suicides occurred while inmates were in the general population and some occurred while inmates were in segregation.
Representative Adelstein requested an update from DOC on the change in telephone policy.
Chair Putnam recessed the committee at 12:08 p.m. for lunch and reconvened the committee at 1:15 p.m.
Public Testimony
Ms. Hazel Bonner, Rapid City, spoke from prepared remarks (Document #5). Ms. Bonner testified that America has incarcerated more than 2 million persons in state, federal, and private prisons since 1998. Prison populations are expanding because inmates are spending more time in prison. Across the nation, a large number of inmates are being placed in prison for nonviolent crimes. Funding needs to be increased for education and decreased for incarceration--increase funding for prevention and decrease funding for detention.
Representative Adelstein commented that there are many federal prisoners housed within the Pennington County Jail because it is better to have these inmates closer to their families.
Ms. Myrna German, Sisseton-Wahpeton Sioux Tribe, testified that basic human rights are being stripped away from the inmates while in prison. She asked whether prison staff are psychologically evaluated before being hired to ensure that abuse situations do not occur. Ms. German asked for a policy from DOC on an acceptable standard of care, if it exists. She asked whether an inmate’s family is notified if the inmate becomes ill or is placed in a hospital. She stated her opinion that Indian youth are being groomed for prison when they end up in the Custer Boot Camp. She noted that many youth are being questioned and confessions obtained without the presence of an adult or attorney. Ms. German stated that she feels Indian people are targeted once they have been in trouble. She stated her opinion that nonviolent crimes should be handled in a rehabilitative setting rather than a prison setting.
Representative Valandra commented that he doubted incarceration would really make South Dakota any safer. He noted that North Dakota seems to be a safer state with one-half the effort.
Ms. Jenelle Burshiem, Sisseton-Wahpeton Sioux Tribe, testified that she was never notified by DOC when her son became ill while incarcerated. She presented the committee with a copy of a letter to the editor she had written with regard to her son’s situation (Document #6).
Senator Brown commented that it is important that this letter be sent to all major newspapers in the state. He also stated his belief that DOC has a policy with regard to notifying family members of inmate illness and stated that if this is not being followed, the Legislature should look into why it is not being followed.
Mr. Webster Two Hawk, Commissioner, Tribal Government Relations, testified that all South Dakotans are affected by the prison issue. He stated that involvement is needed with the Board of Pardons and Parole and that Indian people certainly need to be represented on this board.
Ms. MaryAnn Bear Heels McCowan, representing First Voices, testified that there are a high number of plea bargains by minorities and stated that public defenders need to do a better job of defending minority clients. She testified that the system guarantees the right to an attorney and stated that each county should examine how they select their public defenders and hold them to a high standard of performance. She stated her opinion that Native Americans accept plea bargains more readily because they do not trust the legal system and do not feel that contesting their cases would change the results.
Ms. Jennifer Ring, representing ACLU of the Dakotas, testified that this is a multitiered system which starts with the police. Where there is discretion, the prejudices and preconceptions of the individual can change the character of the institution they represent. The effects of small amounts of racism at each level can accumulate to cause serious injustices as an individual moves through the legal system. She renewed her request for data collection from police stops. The next step would be the prosecutors. She noted that not all prosecutors treat defendants differently because of race, but some do. Next would be the judges because they are the individuals who do the sentencing. Also, juries need to be more representative of the people being charged because they are the ones determining guilt. Ms. Ring expressed her hope that more Native Americans would be seated on juries in light of the most recent voter registration in Indian country. Ms. Ring stated that the whole system must be examined because at each level, the bias increases. She testified that clients are told they must pay for a public defender, and because so many of them cannot afford that, they will often accept a plea bargain. Ms. Ring stated that the committee should also examine the parole system.
Ms. Ring also expressed concern about medical treatment in the corrections system. She noted that diabetics have a lot of foot problems, and many health problems for diabetic inmates could be avoided simply by changing the type of shoe they are given to wear. She expressed her opinion that the state should be able to negotiate a compassionate leave policy with the tribes.
Representative Van Norman expressed his opinion that medical issues are neglected across the whole inmate population and questioned what the Legislature could do to encourage dialogue with the DOC with regard to medical care. The DOC is responsible for medical care while inmates are incarcerated. Representative Van Norman expressed his opinion that medical care of inmates in county facilities is a much more problematic situation. Representative Van Norman stated his concern that in a couple of cases, Indian inmates in county custody were taken to Indian Health Services rather than to the local hospital. Native American inmates should be given the same standard of care while in custody as other inmates.
Senator de Hueck asked whether complaints are made by inmates who feel they are denied access to medical specialists. Representative Van Norman responded affirmatively, noting that an additional point of concern is that inmates who are trying to prove that they have an existing medical condition are being denied access to their own doctors.
Mr. Jesse Taken Alive, a member of the Standing Rock Tribal Council, testified that he is well aware of the rights of victims in these situations. People must change with the times, but unfortunately, laws and people most of the time do not. He advocated the appointment of Native Americans to the boards that oversee DOC operations. People are supposed to be judged by a jury of their peers. He questioned how Native Americans can be judged by people who do not grow up or are not raised as Native American. Mr. Taken Alive testified that sentencing guidelines are quite different with regard to state and federal offenses. Federal guidelines are much harsher in many cases. He suggested that some sort of state-tribal accord be signed to begin dealing with many of these issues brought up today.
Mr. Bryce In The Woods, Cheyenne River Sioux Tribal Council, testified that economics on the reservation should be addressed. The health and welfare of all inmates is paramount. Freedom of religion should also be addressed.
Representative Valandra suggested a future meeting between the committee and the tribal governments to discuss these issues. Senator Brown suggested the idea of a quarterly meeting with the tribal chairs to discuss issues. It was brought to the committee’s attention that Native American Awareness Day has been set for January 21, and perhaps coordination of a meeting could be made for that day.
Mr. Larry Kaufman, Parker, testified that he has been involved in the Man to Man (M2) program (one man from the outside volunteering to visit one man on the inside) for many years. He has had a total of four M2 men, with one being Native American. He expressed his opinion that inmates always get the blame whether or not it is their fault. There have been plenty of staff problems also through the years. Mr. Kaufman felt that more space could easily be made available in the prison by having a parole board that is allowed to take action. It seems that the emphasis these days is on punishment rather than rehabilitation. Mr. Kaufman stated that his current friend had a very difficult time convincing DOC staff that he was ill before he was finally diagnosed with diabetes.
Mr. Lanny LaPlante, Cheyenne River Sioux Tribe, questioned why more of the Native Americans charged with misdemeanors are being handled in federal court, where sentencing guidelines are much more harsh. He felt that the main problem with Native Americans being incarcerated is at the federal level and not the state level. At least in state facilities, there is a chance of parole.
Mr. Verdell Mesteth, a tribal attorney from Pine Ridge, spoke from prepared remarks (Document #7). Mr. Mesteth testified that there is a disproportionate number of Native Americans in the system in the state and across the nation. Much of this is due to the judicial system. Many Native Americans do not receive a jury of their peers. Federal sentencing guidelines are more tedious and often more severe. This brings about a dual standard of justice. He suggested that the committee ask for a review of criminal procedures at the state and federal levels.
Chair Putnam recessed the committee at 4:05 p.m.
Friday, November 15, 2002
Chair Putnam reconvened the meeting at 9:04 a.m. on Friday, November 15, in Room 464 of the State Capitol Building. A quorum was determined present with the following members answering the roll call: Senators Arnold Brown, Patricia de Hueck, and J.E. "Jim" Putnam; and Representatives Stan Adelstein, Jean Hunhoff, Barry Jensen, Paul Valandra, and Thomas Van Norman. Senator Ron Volesky was excused.
Mr. Tom Magedanz, Legislative Research Council, presented the committee with 1) a copy of the reply from the Department of Corrections to questions asked by the committee (Document #8); 2) a copy of Ms. Hazel Bonner’s reaction to the Government Research Bureau study (Document #9); and 3) a copy of the Government Research Bureau South Dakota Criminal Justice preliminary report (Document #10).
Dr. Rich Braunstein and Dr. Steve Feimer, Government Research Bureau (GRB), University of South Dakota, reviewed their preliminary findings with the committee, noting that this was more of a status report at this point. Dr. Braunstein stated that they have identified some shortcomings in the state’s data and they will be engaged in filling in the blanks in the next year to reach a final report.
Dr. Braunstein testified that the study asks whether there is a double standard of justice in South Dakota, and if so, does it work to the disadvantage of Native Americans. They are looking for every instance of disparity that they can identify and explain why those disparities exist.
They looked at all groups at an aggregate level from 1994-2000 and looked at all individuals, not one particular group. They will track individuals through the system, examining the impact that being white or Native American has on each. This is not a study of police profiling, Dr. Braunstein clarified.
Dr. Braunstein reported 178,085 total cases (docket numbers) from 1994 to 2000. Of that number, 154,008 were misdemeanors only and 24,077 were at least one felony. The data was transformed so that they could track individuals through the system. There were 18,186 individuals with at least one felony, and 4,068 individuals with full data from all agencies. Once a person gets into the DOC system, the DOC keeps detailed records. According to the 2000 Census figures, 8.3 percent of South Dakota’s population is Native American and 17.4 percent of Native Americans were charged with felonies (state only, not federal charges).
From 1995 to 2000, 21.5 percent of people in the prison system were Native American. However, Dr. Braunstein discussed the problem of a "disparity trap" and cautioned that population disparity figures indicate that a disparity exists, but they do not explain the reasons or causes for the disparity. The basic comparison between general population figures and presence in the criminal justice system does not allow them to evaluate bias in the criminal justice system. Dr. Braunstein stated that comparing the percentages of Native American inmates to Native American population percentages is an inappropriate way to evaluate the criminal justice system because it does not account for individual behavior. Dr. Braunstein added that these types of population disparities occur in economically disadvantaged areas across the country. As researchers, they are trying to focus on the system to see whether that system compounds the problems.
Dr. Braunstein noted that other researchers have adopted a "20 percent rule" as a guide to distinguish between benign and more serious disparities. As an example, if Native Americans are 17.4 percent of the court dataset in South Dakota, then disparities should not exceed 3.5 percent above or below 17.4 percent in any subsequent individual aspect of the criminal justice system. In their research, Dr. Braunstein and Dr. Feimer attempt to use a system to system comparison rather than a population to system comparison. In other words, if the Native American population charged is 17.4 percent, one would expect the same percentage, plus or minus 20 percent (13.9 percent to 20.9 percent) in other areas of the criminal justice system.
Representative Van Norman questioned the usefulness of Dr. Braunstein’s numbers because tribal members are not subject to state jurisdiction unless they are off the reservation. They would be subject to tribal or federal charges on the reservation. He felt that this information should be included in the study or the figures will be flawed. Dr. Braunstein noted that a problem with collecting this information is a matter of accessibility to paper records kept on the reservations. He stated that the GRB research project focuses narrowly on the state criminal justice system and does not attempt to paint a full picture of Native American justice.
Dr. Braunstein noted that when regional comparisons are made between Native American population rates and incarceration rates, South Dakota is not the highest; it is actually third. North Dakota is the lowest and Iowa is the highest. Dr. Braunstein noted that they may never know with certainty that race alone is a determining factor, given the complexity of the legal process and the other socioeconomic factors that contribute to criminal behavior.
Dr. Braunstein noted that aggregate disparities were identified in: 1) charge severity and frequency against whites; 2) bond determinations against Native Americans; and 3) case disposition (acquittal, conviction, suspended) against Native Americans. Twenty-seven percent of Native Americans charged are denied bond. A higher rate of Native Americans are denied bond, but Dr. Braunstein and Dr. Feimer do not know why because they do not have demographic information upon which to make determinations. Judges look at socioeconomic history, criminal history, flight risk, and other items when making determinations on bond. Dr. Braunstein felt that this committee should speak to an exchange of information between the state and tribal jurisdictions.
The researchers need access to socioeconomic data to determine actual disparity. Native Americans are underrepresented in the numbers going to trial. Native American acquittal rates are a concern, as well as Native American suspended imposition of sentence. All these disparities are very slim disparities, Dr. Braunstein noted.
Other aggregate disparities identified were: 1) whites are given longer sentences in nonviolent crimes; 2) Native Americans are given longer sentences in violent crimes; and 3) processing times are shorter for whites in all instances. Dr. Braunstein noted disparities in the type of legal representation used, which is difficult to subject to empirical analysis.
Dr. Braunstein reported encouraging observations in the parole area, which was studied as a matter of total time served. Racial balance in the parole process resulted from legislative reform in 1996, which introduced a formula-based eligibility determination.
Dr. Braunstein reported that the preliminary results demonstrate differential results and not differential treatment. Further analysis will determine whether differential treatment exists. More demographic data about individuals is necessary to make these kinds of determinations. Dr. Braunstein and Dr. Feimer plan to select a smaller sample of the 18,000 cases (approximately 400) because they need to examine actual case files. Additional data will be gathered on specific crime categories. Court Services does collect much of this information for persons who are sentenced. The 400 will be randomly selected from the 18,000 total. Access to presentence investigations would be of great help to this research effort. Any access to these records must be given by the Legislature.
Representative Adelstein requested that Dr. Braunstein forward his request in writing to the committee with regard to what access is needed and the steps necessary to gain access to the information.
Dr. Feimer reported that 80 percent of the inmates in prison are white and 20 percent are Native American. The majority of individuals entering prison are as new commitments and the second largest category are parole violators. In 95 percent of cases, Native Americans and whites lost about the same amount of good time for disciplinary cause prior to 1996. The same thing occurs in loss of good time for parole violations. Whites actually lost a few more days. The data suggests that the inmate is losing about one year for parole violations.
Dr. Feimer reported that credit for time served in jail is significantly higher for Native Americans than whites. The suggestion here is that Native Americans are spending more time in jail than whites and getting credit for it in prison. This could be a result of Native Americans being denied bond. It could also be a result of processing time differences.
Before the parole legislation reform in 1996, a higher percentage of Native Americans served their full sentences than whites. The percentage of Native Americans who received parole was also lower. After the reform legislation, these differences virtually disappeared. Representative Valandra asked whether both groups are actually serving longer sentences since the reform in 1996. Dr. Braunstein replied that the amount of days being served is longer for both groups and the difference between the amount of days is zero.
Dr. Braunstein noted that it was disheartening to see the number of disparities but encouraging to see the amount of change that can be effected by the Legislature. Race disparities in parole disappeared as a result of the 1996 reform but parole violations increased. Prison administrators would say that they are better judges of who is ready for parole than a formula. Chair Putnam commented that he did not see parole violation as a connection here. Dr. Braunstein replied that the connection is that their release is being determined by a formula rather than by a parole board’s assessment of their readiness for release.
Dr. Feimer stated that he would urge a more standardized way of collecting criminal justice information and having it passed from one agency to another. This has been a major challenge for the research team thus far. Dr. Braunstein added that one cannot study this issue fully without including federal and tribal data. He noted that they cannot continue with their advanced case study of the 400 individual cases without federal criminal history being included.
Public Testimony
Mr. Lionel Bordeaux, Sinte Gleska University, expressed his concern for the lack of educational programs for the men and women in prison. He advocated increasing educational courses in prison so GEDs can be provided to those without a high school diploma and possibly continued education courses to give inmates more chances for employment when released. He suggested a cost-sharing agreement between the state and the tribes in this education effort. He also suggested that the committee begin addressing the federal sentencing guidelines, which he viewed as a tremendous problem for his people due to the socio-economic situations on the reservations. When Native Americans come into the federal system, the judge has no discretion as to the length of sentence; the judge must follow the federal sentencing guidelines. He would like to see the Legislature take the lead in doing away with these sentencing guidelines, which are quite harsh.
Senator Brown suggested that perhaps staff could devise some sort of resolution with regard to federal sentencing guidelines.
Mr. Seth Big Crow Sr., Rosebud Sioux Tribe, expressed his concern over health care and mental health care being provided to inmates. He asked where federal prisoners from South Dakota are incarcerated.
Mr. Lanny LaPlante, Cheyenne River Sioux Tribe, testified that they do not have a problem with state and tribal jurisdiction. However, he noted that a Native American can be prosecuted in tribal court and the federal government can come in and bring federal charges. He testified that they are the only people who are subject to double jeopardy. He felt that the problem is more the federal system than the state system.
Ms. Janice Sitting Bear, Oglala Sioux Tribe, spoke from prepared remarks (Document #11) and testified that her brother has had his religious freedom violated while in prison. His incident involved his medicine bag, which is considered a sacred religious object and not a piece of jewelry.
Ms. Marletta Pacheco, Rapid City, expressed concern with the health care and mental health care received by inmates. She felt the whole system needs to be examined from the time the individual is targeted for arrest to the charges, sentencing, and treatment in prison. She noted that she has received letters from individuals with regard to mistreatment while in prison and receiving segregation time for minor rule infractions.
Ms. Pacheco questioned why inmates are required to work for 25 cents per hour and being released from prison with huge debts from unpaid child support payments; she questioned why inmates who do not get along are housed in the same cell; she noted that hepatitis C is becoming more prevalent in prison and many are going without treatment; she noted that Native Americans are sent to segregation for fighting with white inmates; and she stated that Native American inmates seem to be targeted for write-ups of rule infractions and are heavily fined. She questioned why families have to fight the administration to receive information on their family members who are incarcerated. She presented the committee with copies of complaints she had received from inmates (Document #12).
Chair Putnam recessed the committee at 12:15 p.m. for lunch and reconvened the meeting at 1:20 p.m.
Ms. Glenda Hill, Rapid City, spoke from prepared remarks (Document #13). Ms. Hill testified in opposition to housing inmates in the same cell when it is known that they do not get along. Her son was housed with another inmate that he did not get along with and they eventually ended up fighting with a fatal result. Now her son is looking at spending the rest of his life in prison. She felt this whole situation could have been avoided if prison officials would have listened to the inmates and not housed them together.
Ms. Carol Hatten, Rapid City, spoke from prepared remarks (Document #14). She testified that her son was abused while in the Pennington County jail, and in order to escape continued abuse, he pleaded guilty to the charges. Her son also escaped from the Pennington County jail. When he was found at her house, she was arrested and also physically abused when taken to the jail (her charges have since been dropped). Because of the problems her son had while in the jail, he was identified as a security risk and placed in administrative segregation at the prison. He has remained in administrative segregation since 1998.
Ms. Stephanie Autumn, Council on Crime and Justice, Minnesota, testified that another study is not needed to tell Native Americans that their people are over represented in prison facilities across the country. They know that legal equity does not exist for Native Americans in this country. Ms. Autumn testified that 60 percent of the infractions and disciplinary measures are a result of racism, biases, and ignorance of Native American culture and spirituality. Until prison staff is educated on Native American culture, these instances of abuse will only continue to increase. Until programs are developed and funded by the Legislature for Native American inmates, the number of Native American inmates and recidivism will not be reduced. She advocated prerelease and postrelease training for inmates. She also felt that money would be better spent in developing a plan for direct services and intervention. Ms. Autumn expressed concern at the funding disparity that exists with regard to religious needs of the inmates.
In response to questions, Ms. Autumn indicated that she works for two nonprofit agencies that assist Native American inmates. She noted that while her programs are located in Minnesota, she does receive many calls from Native American inmates in Sioux Falls. Her program utilizes a prerelease and postrelease program funded through the state of Minnesota, which is a step in the right direction. She noted that if South Dakota were to adopt such a program, it must be culturally specific.
Representative Jensen asked Ms. Autumn whether she considers her program successful. Ms. Autumn replied that they have reduced recidivism rates by 35 percent in the adult prison population and by 20 percent in the juvenile population. Representative Jensen requested information on the program for the committee.
Ms. Autumn testified that so much money is spent on locking people up, and if a portion of that money were spent for treatment, rehabilitation, and postrelease programs, the numbers of inmates returning to prison would decrease.
Representative Van Norman asked what types of things Ms. Autumn’s program does for Native American inmates. Ms. Autumn replied that they have culturally-based programs. They have Native American case managers and they develop realistic and feasible release plans for the inmates. She suggested that the state parole officers come to the reservation to do their parole monitoring rather than requiring the parolee to travel to another city to report twice a week, when oftentimes the parolee does not have the financial or transportation resources to do so, thus violating parole.
Dr. Braunstein stated that some of the items mentioned by Ms. Autumn have been supported by their research, noting that parole violations are higher for Native Americans.
Ms. Twylla Turney, Kadoka, spoke from prepared remarks (Document #15). She testified that her son committed suicide while held in the Bennett County Jail. She has since developed and established a suicide prevention hotline. Ms. Turney testified that if people in jail were treated humanely and given hope for the future, they would not be committing suicide. Many Native Americans who are incarcerated feel that if they give up their life, they will finally be free.
Mr. John Around Him presented a list of complaints from the inmates with regard to religion (Document #16). Mr. Around Him testified that he has visited the prisons as a spiritual liaison, and he requested a copy of religious events held at the other prison facilities besides Springfield. He testified that the prison employees need training from the Lakota perspective with regard to Lakota spiritual matters.
Mr. Bob Newland, Hermosa, spoke from prepared remarks (Document #17). He testified that he has been aware his whole life that Native Americans are more subject to arrest, prosecution, and incarceration than white people. Indians are about six times more likely to be punished than whites. Nobody thinks they can repeal racism; however, the proliferation of stupid laws keeps racism alive. He testified that the prisons are overcrowded because there are too many laws on the books.
Ms. Nancy Fleming, Rapid City, testified that she worked as a contract counselor with the Pennington County jail for a period of three years. She stated that a justice system should have checks and balances in it and this is not what she has seen in Rapid City. Ms. Fleming stated that if there are a number of people who believe a certain way, those people tend to get together and reward each other and it then becomes an "us and them" situation. This is compounded by an administration that does not address the situation. There are people in power who are accepting this type of behavior. She testified that she has seen public defenders not doing their jobs. She had to advocate for some of the inmates when this was clearly the job of the public defender. Ms. Fleming expressed her concern with the terrorism law, noting that there will be different interpretations of the law depending upon the race of the individual. She left the committee copies of information on her husband’s case (Document #18).
Mr. Jesse Taken Alive, Cheyenne River Sioux Tribe, testified that adequate and appropriate funding is needed to meet the needs in Indian country. Mr. Taken Alive did not like the speculative overtones he perceived in the Government Research Bureau preliminary report. He felt that partial random sampling will contribute to manipulation of the data. He felt it very important that tribal input be included in the study, with payment for tribal input mandated.
Ms. MaryAnn Bear Heels McCowan presented written testimony on behalf of Ms. June Runs After (Document #19) and Mr. Philander True Brings White (Document #20).
Ms. Frances Zephier, Yankton Sioux Reservation, testified that the justice system is hypocritical and biased. She stated that when people in authority commit crimes against Native Americans, nothing is done. She felt the poverty level of the Native American people should be addressed.
Mr. Don Cuny, Martin, presented the committee with information on the Tim Caffrey case (Document #21). Mr. Cuny testified that education is the key to eliminating racism. He felt that many judges and prosecuting attorneys are racist and that the system continues to protect racists in authority positions.
Ms. Celia Little Elk Martin, Porcupine, questioned why the family members are not informed of the conditions and status of inmates.
Ms. Joy Mesteth-Hethington, Sioux Falls, testified that there is a lack of medical treatment and access to legal assistance for inmates.
Ms. Christine Dunham, Rosebud Sioux Tribal Council, testified that education and communication are essential. She stated that she believes firmly in reconciliation.
Ms. Lucinda Ellert, Mission, testified that she initiated a racial bias study in Minnesota, which concluded that racism was widespread throughout the legal system in Minnesota. She stated her belief that the same thing is happening in South Dakota. She presented the committee with information on the racial bias study in Minnesota (Document #22).
Chair Adelstein announced that written testimony could be forwarded to the Legislative Research Council for those still wishing to testify for a period of ten days.
Vice-chair Adelstein adjourned the meeting at 4:30 p.m.
Written remarks were received through November 25, 2002, by the Legislative Research Council from the following individuals: Mr. Gerald Thin Elk (Document #23); Ms. Nancy Fleming (Document #24); Ms. Valentina Janis (Document #25); Mr. Larry Swalley (Document #26); Ms. Marletta Pacheco (Document #27); a resolution and supporting documents from the Lower Brule Sioux Tribe (Document #28); copies of incident reports from Ms. Leta Wise Spirit (Document #29) and Ms. Joy Mesteth-Hethington (Document #30); and a copy of correspondence from Ms. Dawn Frazier to Representative Van Norman (Document #31).
All Legislative Research Council committee minutes and agendas are available at the South Dakota Legislature’s Homepage: http://legis.state.sd.us. Subscribe to receive electronic notification of meeting schedules and the availability of agendas and minutes at MyLRC (http://legis.state.sd.us/mylrc/index.cfm).
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