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Indians face disparity in justice; Governor's study shows dual
standards in S.D. courts
http://www.argusleader.com
October 22, 2002
By LEE WILLIAMS
Argus Leader
"Native Americans face a dual standard of justice from arrest to release in
South Dakota, according to the preliminary results of a study of the state's
criminal justice system.
Indians charged with felonies are more likely than white defendants to be
forced into plea bargains and be denied bond, the study by a pair of
University of South Dakota researchers found. Indians also serve longer
sentences than whites for violent crimes, according to the research
commissioned by Gov. Bill Janklow.
But Richard Braunstein, who, together with Steve Feimer conducted the study,
said the preliminary findings do not explain why the disparities exist. He
hopes to use an additional $24,000 in state funding to acquire and examine
additional data. A final report should be available by next fall.
"It's like going into a dark room with a small flashlight," Feimer said. "We
don't know what's there until we can turn on the lights."
Janklow ordered the study in response to a March 2000 report by the South
Dakota Advisory Committee to the U.S. Commission on Civil Rights. That
report found anecdotal evidence of a dual standard of justice in the state
and recommended that the state's criminal justice system be further
examined.
Janklow called that federal report garbage, and commissioned Braunstein and
Feimer to study how the criminal justice system treats whites and Native
Americans.
The researchers collected and examined more than 24,000 cases from
1994-2000. They sifted through more than 178,000 documents including arrest
information, sentencing reports and other court files.
"This is not a racial profiling study, but a study of the criminal justice
system from arrest to completion of sentence," Braunstein said.
Based upon the statistics, the professors drew some preliminary conclusions
about the state's justice system and its treatment of Native Americans.
Those findings include:
¤ Indians were denied bond at a higher rate than non-Indians. "At the early
stage, it shows cause for alarm, but we don't know why," Braunstein said.
¤ Indian females were over-represented in the state prison system, when
compared with the general population.
Braunstein described the percentage of Indian women in prison as "alarmingly
high."
¤ On average, Indians served longer prison sentences for violent crimes than
non-Indians, with the exception of assault and vehicular homicide
convictions.
Non-Indians serve longer sentences for non-violent crimes.
¤ Fewer Indians than whites charged with felonies went to trial.
"They're accepting pleas in greater numbers," Braunstein said.
The data indicates that fewer Indians are acquitted at trial as well, though
the researchers say they need to study more cases to verify these results.
¤ White adults are more often charged with DWI, assault and drug offenses
than Indians, Braunstein said.
The researchers presented a 50-page preliminary report to Janklow last
August, along with a request for additional funds to continue their
research. Braunstein said the money for the additional research has been
allocated.
In his request for funds to continue the study, Braunstein said additional
data could give a "more precise look at the impact race alone has" on
criminal justice outcomes and allow him to more closely examine "regional
differences within the state"
"A far greater range of information is necessary if we are to narrow in on
the unique affect of race on the process," Braunstein wrote.
The Argus Leader examined excerpts from the preliminary report, which has
not been released to the public.
Janklow's press secretary Bob Mercer said the governor left the decision on
whether to release the preliminary report this summer up to the researchers.
"Rich (Braunstein) felt he wasn't ready," Mercer said.
>Braunstein said his recommendation to the governor was to keep the report
under wraps until the additional data could be gathered.
"As a researcher, it's unethical to publish or distribute an incomplete
work," he said. "As a person who believes in this issue, it can only do harm
at this time to release half the story."
Once the study is completed, Braunstein said he will release all of the
results through public meetings across the state, in the media and scholarly
journals.
"We'll shout it from the rooftops," Braunstein said.
Marc Feinstein, who chairs the South Dakota Advisory Committee to the U.S.
Commission on Civil Rights and helped write the 2000 federal report on the
treatment of Indians in the state's criminal justice system, said the state
study's preliminary results are not surprising.
"After hearing the pleas of the people that attended our hearings, I knew
what they were saying was true," Feinstein said. "This state report merely
backs up what we were told and many of the statements in our report. He
should release the report in its entirety."
Attorney General Mark Barnett agreed that some of the study's findings were
not unexpected.
"I could have told you a year ago you'd find more Indians in the system," he
said. "What we're trying to find out now is why."
Frank Pommersheim, a law professor at USD and member of the South Dakota
Advisory Committee to the U.S. Commission on Civil Rights, said he hopes the
report spurs action.
"People have indicated that if the study found problems, the government
would respond. It doesn't make sense to expend public funds and ignore the
study," he said. "The state should look at what reforms are available to
deal with the disparities."
Additional information
Braunstein said his objectives were to see if statistical data supported the
negative perceptions that many Indians have about the criminal justice
system and to determine if there is a double standard of justice.
He said researchers examined every step of the process.
"There are lots of decision points at each stage," Feimer said. "We looked
for disparity at each point."
Court, law enforcement and corrections officials collect data differently,
so researchers first had to change the formats before beginning an
examination.
The researchers now want to gather additional information such as the
defendant's criminal history and background as well as information on
victims, something not collected by the state system.
"We found disparities, but no explanations yet," Braunstein said.
"Explanations are not possible at this time, with the limited data."
He said the study's conclusions "could change substantially with demographic
data."
Barnett said he hopes the researchers eventually will be able to compare 100
Indian defendants with 100 non-Indian defendants - each charged with the
same crime and with similar socio-economic backgrounds and criminal
histories. He wants the researchers to compare the defendant's level of
education, family status, household income and a host of additional
criteria.
"I think it's essential - critical - that they go the extra distance and
tell us what effect those factors have," he said.
Candidates' positions
Candidates for South Dakota attorney general had differing views about the
preliminary report's findings as well as what steps should be taken next.
Deputy Attorney General Larry Long, a Republican, wants to wait for the
final report before considering any potential system reforms. He said he has
a personal opinion on some of the reasons behind the disparities.
"American Indians are grossly over-represented in the poverty end of the
national and state economy. Shannon County, my home, has unemployment of 50
to 80 percent. It's abominable," Long said. "By anybody's standard, with
that level of appalling unemployment and poverty, that situation is just
going to generate a substantial amount of criminal conduct, irrespective of
whether it's on an Indian reservation."
He said he does not see a dual standard in the state's justice system.
"You have to understand that American Indians travel through three
distinctly separate systems: federal, state and tribal. American Indians are
unique in that regard, because of their unique legal history and status," he
said.
Democrat Ron Volesky, Long's opponent, said the report's findings are
alarming.
"But it's more troubling that the public hasn't been provided the
information sooner," he said. ... I realize these are preliminary findings,
but they're pretty important preliminary findings."
Volesky said he would form a task force to address issues raised by the
study.
"I'd bring together law enforcement - both state and local - the judiciary,
along with the state's attorneys and community groups," Volesky said.
"We want to find out the reasons for the problems raised by the study. If
the governor is trying to find out, I support him, but we want to know the
reasons why."
© 2002 Copyright Argus Leader.
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