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Study shows racial disparity: S.D. legal system needs reform, researcher says
Posted to DLN Advocacy by Alfred Bone Shirt
Jon Walker
Argus Leader
published: 2/13/2003
South Dakota must correct inequities in criminal justice that show Native
Americans receiving longer prison sentences than the white population, a
researcher said Wednesday.
"We have found substantial disparities, embarrassing disparities,
unconscionable disparities," said Richard Braunstein, an assistant professor
at the University of South Dakota. "By a matter of law, South Dakota may not
be in hot water. As a matter of moral obligation to its citizens, it's
drowning."
Braunstein's research found that Indians convicted of crimes in South Dakota
are sentenced to 57 percent more prison time than whites. He explained his
work at a Sioux Falls meeting of the South Dakota Advisory Committee to the
U.S. Commission on Civil Rights. The committee meets periodically to discuss
civil rights issues in South Dakota.
In his research Braunstein has not isolated race as the single motivating
factor for discrepancies in sentencing, nor does he expect to. The results
nonetheless demand a response, he said.
"We have a great deal of reform to engage," he told the committee.
Braunstein will comment on his research in the March edition of the South
Dakota Law Review, a publication of the USD Law School. His work updates and
in some cases corrects preliminary data that became public last fall. Former
Gov. Bill Janklow commissioned the research to determine if race affects how
people are charged, prosecuted and sentenced in South Dakota.
Looking at the years 1994 to 2000, Braunstein considered the experience of
18,186 individuals with the Division of Criminal Investigation, the Unified
Judicial System and the Department of Corrections, including 4,398 who went
to prison.
He found that Indians, on average, were sentenced to 1,847 days in prison, or
a little more than five years. Whites were sentenced to 1,179 days, a little
more than three years.
Larry Long, South Dakota's attorney general, could not be reached for comment
on Braunstein's research.
Braunstein still is studying circumstances that would explain such a gap, but
some situations stand out.
"Say an 18-year-old breaks into a house, causes damage, steals liquor and
goes out and gets into a couple of fights," he said. "You can imagine the
person is just stupid and not a criminal and shouldn't be kept in prison 20
years."
In such a scenario, common sense can prevent a long term in the penitentiary.
"Whites enjoy this much more than Indians in South Dakota," Braunstein said.
Circuit judges may be reluctant to release Indian defendants, fearing they
will return to a reservation and be out of reach of the state court system.
"Some judges give longer sentences to American Indians than they need to
because of jurisdictional questions," he said.
Braunstein, who divides his time between the USD political science department
and the W.O. Farber Center for Civic Leadership, plans through the year to
continue research into whether the disparity is discriminatory.
"In December, will we get to the why?" committee member Bill Walsh of
Deadwood asked.
Braunstein said he doesn't expect to find a smoking gun.
"Perfect certitude that race is a motivating factor - we're not going to find
it," he said. "We don't have to wait till we know race is the only factor
motivating disparities. At some point we need to start acting and stop
studying."
The change ahead would need to be on several levels -Êgovernmental,
structural and cultural. He said data on sentencing could lead to a
"cognitive liberation" resulting in change, just as the Supreme Court's Brown
v. Board of Education ruling altered the national mind-set on discrimination
in schools.
Rae Burnette, a committee member from Sioux Falls, said Braunstein's research
gives the state something to work with. "We have to stop studying at some
point, but this is South Dakota. ... We've never had this kind of benchmark,"
she said of the results.
Reach reporter Jon Walker at
jwalker@argusleader.com or 331-2206.
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