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Study: Indians jailed more often
Posted by Ann to South Dakota Prisoners Support Group
Lee Williams
Argus Leader
published: 11/3/2002
State has region's highest disparity between population, inmate numbers
Kandi World Turner wasn't surprised by a recently released study showing disparities in the treatment of Native Americans in South Dakota's criminal justice system.
She believes dozens of Native Americans, including her husband, Chuck, are victims of unequal treatment in South Dakota's courts, jails and prisons.
"We both knew there were problems with the system long before the governor's report came out," she said.
The report she refers to is a study of arrest, court and prison data designed to determine if race affects how people are charged, prosecuted and sentenced in South Dakota. It was commissioned by Gov. Bill Janklow and paid for with state funds. Researchers Rich Braunstein and Steve Feimer of the Government Research Bureau at the University of South Dakota completed a preliminary report and submitted it to the governor in August. It was made public last week after the Argus Leader requested a copy.
Using judicial and corrections data from 1994-2000, the preliminary report shows disparities in how Native Americans were treated from arrest to release from jail. The USD researchers are using an additional $24,000 state grant to try to probe the reasons behind the disparate numbers.
South Dakota has a higher percentage of Native American male inmates than any of its neighbors.
Despite progress made in equalizing parole dates, Native Americans still are overrepresented in the state's prison population. Indians make up less than 9 percent of the state's population but 23 percent of the prison population.
That is the highest disparity in the region between the Native American inmate population and the general Indian population.
Some Native American leaders say the preliminary findings reinforce what they have known for years. They hope the ongoing study will lead to solutions.
"I feel that many Native Americans have received injustice in the state system due to historical types of situations such as all the broken treaties," said Charles Montileaux, an Oglala Sioux tribal judge. "You must admit, there's a long track record that's not very impressive."
Kandi World Turner's husband, Chuck, is serving a 25-year sentence in the South Dakota State Penitentiary for attempted manslaughter.
Kandi believes his case illustrates some of the disparities outlined in the USD study.
World Turner's case
World Turner was charged after authorities say he cut a Yankton convenience store clerk on the face with a knife. Kandi said her husband was drunk at the time of the incident and was angry about racial statements made in the store. She said he never intended to kill the clerk, and she believes he should have been charged with aggravated assault, not attempted manslaughter.
According to Kandi, Chuck World Turner waived his right to a presentence investigation and pleaded guilty to first-degree attempted manslaughter on the advice of his court-appointed lawyer.
The judge suspended five years of his sentence as long as the 39-year-old Crow Creek tribal member completes alcohol education classes while in prison.
"He admitted his guilt and threw himself on the mercy of the court, and he got screwed," Kandi said. "He was following his attorney's advice. What did he know? He didn't trust the system."
Kandi and her family hope the state study will allow a re-examination of her husband's case.
"I sent Professor Braunstein a letter saying please look into my case," Kandi said. "I hope someone does."
Civil rights hearing
Concerns about racial bias in South Dakota's criminal justice system were stoked in 1999 after a series of high-profile Indian deaths.
Two men's bodies were found near Whiteclay, Neb. Seven Indian men drowned in Rapid City's Rapid Creek, an Indian man was stuffed in a garbage can after a night of heavy drinking in Mobridge, and an Indian was struck and killed on a Roberts County road.
The U.S. Commission on Civil Rights held hearings in Rapid City, listening to Native Americans, law enforcement officials and prosecutors. In a report following the hearing, the board said Native Americans in South Dakota have little confidence in the criminal justice system and believe the administration of justice at federal and state levels is permeated by racism.
"There is a crisis in South Dakota today," Mary Frances Berry, chairwoman of the U.S. Commission on Civil Rights, said after the hearings. "Native Americans here have lost confidence in the criminal justice system. Nothing is more corrosive to a democratic form of government than the widespread belief that justice is administered unfairly."
That report had no enforcement power. Janklow called the civil rights board's findings "one-day wonders" and criticized the group for, among other things, not talking with the state Human Rights Division to see if it had a backlog of cases. "They were far more interested in headlines than substance," he said.
Janklow then launched the state study.
In their preliminary report, Braunstein and Feimer said their research, "as a whole, raises serious questions about the treatment of American Indians in South Dakota criminal justice."
The researchers said their analysis of data suggests "that American Indians are not treated equally in the South Dakota criminal justice system," relating disparities in areas such as bond determination, sentence length for violent crimes and numbers of cases that go to trial.
Snowball effect
The research shows that Native Americans, on average, received longer sentences than whites. But the distribution of sentences varied greatly by crime type.
Indians typically were given longer sentences for violent crimes, while whites received longer sentences for nonviolent crimes.
Whites went to trial more often than Native Americans and were more likely to be acquitted or to receive a suspended imposition of sentence.
The study points to a multiplying effect in those statistics.
The speed with which Native Americans move through the criminal justice system - their acceptance of more plea agreements and fewer challenges in court - results in longer sentences and a more negative criminal history, the researchers noted. That, in turn, can lead to harsher treatment in future criminal justice situations, since plea agreements, sentencing and parole decisions are based in part on these factors.
In their report, the researchers offered some possible reasons why American Indians move more quickly through the criminal justice system than whites.
"Speculation on why this occurs could include that American Indians accept pleas bargains more readily, either as a result of cultural differences, lack of trust in the system or greater acceptance of their guilt than whites," the professors wrote.
Citing focus group sessions and other data, the researchers said it "seems likely that a profound lack of trust exists" between the Indian and white communities.
"It seems that the history between these two groups has made the white community particularly distrustful of American Indian defendants charged with violent crimes, even though white defendants outnumber American Indian defendants in each of those areas," the report said.
Mistrust of the justice system also was a common theme in testimony before the U.S. Commission on Civil Rights.
Russell Means, who is running for president of the Oglala Sioux Tribe, said the mistrust is present because of "extremely low self-esteem" among Native Americans.
"There's a feeling they can't win, in any situation," he said.
Robert Connoyer, vice-president of the Yankton Sioux Tribe, said most tribal members have little confidence in any justice system.
"They never trusted the state system," he said. "They have often felt they get railroaded. They'll plead guilty or pay a fine just to speed it up. They don't like being incarcerated."
Positive changes
In their analysis of Department of Corrections data, the researchers also discovered what they called an "unusual and promising phenomenon."
In 1996, the DOC began using a formula modeled after federal sentencing guidelines to determine when an inmate is eligible for release.
"We found significant disparities against American Indians before the legislative reform, but virtually none after," the report states. "The difference in length of time served went from 54 days more for American Indians before the reform to 0 days difference after."
"The reform shows that legislative action can significantly reduce disparities in the criminal justice system," Braunstein wrote in the report.
That and other findings in the preliminary research have prompted discussion about possible legislative changes and the need for additional studies of sentencing and criminal justice at state and federal levels.
Democratic attorney general candidate Ron Volesky called for the formation of local task forces across the state to examine problems faced by Indians.
"We need to be proactive and work together," he said. "We need to face the realities the study points out."
Deputy Attorney General Larry Long, Volesky's Republican opponent, said he did not want to comment on the report, since the researchers say they need more study.
But Long, who grew up in Indian Country, said there are socioeconomic factors at work in the statistics.
"Poverty present on the two reservations that I'm most familiar with - Pine Ridge and the Rosebud - explains why American Indians are overrepresented in the penitentiary population," Long said. "If the federal government ever adequately addressed that issue, a lot of these concerns would disappear. I think poverty in Indian Country is a federal issue."
Indeed, the researchers acknowledge that crime is a "fact of life in economically disadvantaged minority communities." But, they say, "The essential question is whether the criminal justice system compounds the problems" experienced by Indian communities.
The researchers also discovered that South Dakota was not alone in jailing a disproportionate share of Native Americans.
Native Americans are also overrepresented in the North Dakota prison system and in other area states.
Taking offense
Some of the language in the preliminary report is being questioned by legal and Native American officials.
For example, the researchers note that "there is widespread belief in the white community that American Indians have greater problems with alcohol related crimes than whites."
They go on to explain that their research observed that whites got longer sentences for felony DWI cases, and, when drug crimes were added in, whites had far greater instances of alcohol and drug crimes together.
But some criticized the assumption that people think Indians have more problems with alcohol-related crimes than whites.
"I wouldn't think that would be reflected in the data," said Long. "I assume that's their value judgement. I'm sure some people believe that, but I'm not sure how widespread it is."
Braunstein said, "You just have to think about it from a stereotype perspective. It's fair to say there are stereotypes of all groups of people. There are stereotypes of white trash people who live in trailer parks."
John Yellow Bird Steele, incumbent president of the Oglala Sioux Tribe, said the researchers made incorrect, broad generalizations.
"Widespread belief? They don't recognize the fact that the vast majority of our tribal members are really good people," Steele said. "They seem to classify one Indian as all Indians."
In another section, the report explains how researchers invited circuit judges to participate in a judicial focus group. They were studying why Indians were denied bond more frequently than whites even though they committed fewer crimes and their offenses were less serious.
Twelve judges chose to participate. In the focus group, the researchers learned that one reason the judges had for their reluctance to offer bond to Native American defendants was concern "about flight and hiding out on the reservation."
Steele found that remark offensive. "When a judge says something like that and a white person reads it, they'll think the whole reservation is nothing but a bunch of criminals," Steele said. "The judges should be more careful about what they say."
Steele points out that the Oglala Sioux Tribe has an extradition clause incorporated into the tribal constitution. The tribe has turned members over to off-reservation law enforcement.
"We respect their jurisdiction," he said. "Why can't they respect ours?"
Braunstein said the comment has to be viewed in proper context.
"My view is, it's not as malintended as one might think," Braunstein said. "What they were saying was maybe crass of me to write, but what the judges were saying is, if people go to the reservation, there's not the same level of support for drug treatment or alternatives available to them in their community as opposed to the state system."
Long said that until recently, there was a perceived lack of power by the state judicial system to return Native American defendants to court. The state lacked the authority, and the federal government was equally powerless.
"I don't think a judge's concern about getting a guy back into court can be characterized as racist," Long said. "It seems to me, given the defendant's history and the nature of the crime, that the judge can take that into consideration. I would say that for every judge in every case where he has to fix bond, the primary purpose of the bond is to ensure they come back to court."
AIM dispute
The report also notes that there are roughly the same proportion of Native Americans in South Dakota prisons today as there were in the 1950s - 23 percent.
These numbers swelled to 37 percent during the late 60s and 70s.
"This high water mark is attributable to American Indian protest and the well-known activities of the American Indian Movement," the report states.
Clyde Bellecourt, who co-founded AIM along with Dennis Banks, doesn't agree.
"I am very, very offended by that. It's racist and ignorant," he said. "This is indicative of the researcher's culture, which we call the John Wayne or George Armstrong Custer frontier mentality."
Bellecourt said blame should be fixed on the non-Indians who occupied positions of power during AIM's early years.
"Because of the struggle to get our treaty rights recognized, white powers came down heavily on the Indian community," Bellecourt said. "That's why young Indian men and women were incarcerated. ... They were trying to quell Indian activism and take away our rights."
Braunstein said he thinks the high number of sentences in those years "is attributable to protest. I don't think we're blaming anybody."
Means, who was an AIM leader in those years, said what happened in South Dakota was similar to what happened in the South in the 1950s, when more blacks went to prison than ever before.
"When we started standing up for our rights, the white man hated it, and, in fact, the ramifications are still going on today," Means said.
Researchers extend study to seek reasons for disparity
For researcher Rich Braunstein, the search for answers to questions of possible racial bias in South Dakota's criminal justice system has just begun.
After spending months dissecting 24,000 cases, including 178,000 legal and court documents, Braunstein said he and partner Steve Feimer need more time and more data to try to explain the disparities discovered in the treatment of whites and Native Americans in South Dakota's judicial and corrections systems.
In an interview earlier this month, Braunstein explained that he and Feimer want to get additional information from legal and corrections officials and look at other data. They want, for example, more complete criminal histories of the accused, information on the financial impacts of crimes and details on the use of force to help them complete a comprehensive analysis.
The state has given the researchers an additional $24,000 to continue the study, which Braunstein has said should be completed by next fall.
Their preliminary report raised serious questions, however, about the way Native Americans are treated in the state's criminal justice system.
The revelation that Native Americans were disproportionately represented in judicial and corrections numbers was not surprising to many who say studies long have shown that crime is more prevalent in economically disadvantaged minority communities. South Dakota's Indian reservations are situated in some of the poorest counties in the nation.
But the USD researchers say their preliminary report doesn't answer the question of whether the criminal justice system compounds the problems experienced by those minority groups.
"The larger question of whether the lives of American Indians in South Dakota criminal justice are valued as much as the lives of whites in the community cannot be answered here," they wrote.
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