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March 23, 2014

Noting disparities resulting from reservation sentencing being federal sentencing

Ndlr-cover-86-3This local article from North Dakota, which is headlined "Article scrutinizes disparities in sentencing on reservations: American Indians face harsher penalties when tried in fed court vs state courts, advocates say," highlights an often-overlooked pocket of the federal sentencing system. Here are excerpts from the lengthy piece:

Dana Deegan is serving a 10-year sentence for placing her newborn son in a basket and abandoning him for two weeks, allowing him to die. Deegan, who was 25 years old when her son died in 1998 on the Fort Berthold Indian Reservation, had three older children and suffered from depression and abuse. She pleaded guilty in 2007 to second-degree murder to avoid a possibly harsher sentence.

Advocates have said her sentence was much harsher than those given for similar cases prosecuted in state courts in North Dakota – a disparity that critics say applies generally because American Indians accused of major crimes on reservations are prosecuted in federal courts, which generally have stiffer penalties. The issue, which lawyers, judges and legal scholars have long discussed, will soon be the subject of a national study by the U.S. Sentencing Commission.

Senior Judge Myron Bright of the 8th U.S. Circuit Court of Appeals, who is based in Fargo, has for years been an outspoken critic of sentencing disparities involving prosecution of American Indians on reservations. The issue is also the focus of an article calling for changes to address the sentencing gaps in the current issue of the North Dakota Law Review [available at this link], and the study is backed by Tim Purdon, U.S. attorney for North Dakota. The law review authors, one of them a tribal judge in North Dakota, noted the Deegan case as a glaring example of the gap in sentences between the federal courts — whose defendants are overwhelmingly American Indians prosecuted on reservations — and comparable crimes tried in state courts.

Non-Indian women in two similar cases prosecuted in North Dakota state courts received much lighter sentences, authors BJ Jones and Christopher Ironroad noted [in this article, titled "Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach"]. In 2000, a 22-year-old woman was sentenced in Cass County for negligent homicide to three years, with imposition suspended for three years of supervised probation, which was terminated less than two years later, according to court records.... In 2007, a 28-year-old woman was sentenced in Burleigh County to 10 years in prison, with eight years suspended, for causing the death of her newborn, which died after being left in a toilet....

Federal courts have jurisdiction on Indian reservations under the Major Crimes Act passed in 1885. Ordinarily, states prosecute “street crimes,” including assault, burglary, sexual assault, murder and vehicular manslaughter. Because of strict sentencing guidelines, with mandatory minimums and no probation or time off for good behavior, sentences in federal court generally are higher than those in state courts, at least in states including North Dakota, South Dakota and Montana, lawyers and federal judges agree. “The law needs to be changed and Indians need to be treated on an equal basis, the same as their white neighbors,” Bright said.

But many agree that state penalties for certain crimes, such as vehicular manslaughter, are higher.  That, in fact, was a finding the last time the issue of sentencing disparities was studied in 2003 by an advisory group for the Sentencing Commission. But the group found the perception of an unfair disparity in sentences received by American Indians in federal court compared to state court was “well founded,” Purdon wrote the chairman of the Sentencing Commission earlier this month.

Purdon, who serves as chairman of the Attorney General’s Native American Issues Subcommittee, said more study is needed into the widespread perception of unfair sentences. “If the court system is perceived as unfair it undermines my ability to make the reservations safer,” he said, adding that the U.S. Department of Justice supports further study of the issue.

Two federal trial judges in North Dakota agreed that, because of federal sentencing guidelines, criminal sentences sometimes are higher than state court sentences, but cautioned that the reverse also is true for certain crimes.  “I believe it works both ways,” said Chief Judge Ralph Erickson of U.S. District Court in Fargo.  “Some crimes are less than customarily handed down in state courts,” such as vehicular homicide.

Much of the disparity comes from the lack of parole in the federal court system, meaning a defendant serves the entire sentence, Erickson said. “That’s where the rub comes in,” he said. “We’re aware of that and it’s frustrating.”... A comprehensive study is needed to determine if there are, in fact, sentencing disparities, Erickson said. If so, then solutions can be identified.

“There’s an overall disparity in sentencing,” said Judge Daniel Hovland of U.S. District Court in Bismarck. “Generally, federal sentences tend to be more severe,” but he agreed with Erickson that there are exceptions, including manslaughter. “I think the sentencing commission is going to take a much closer look at that issue and it will certainly bode well for everyone in the judicial system,” Hovland said.  “I’m confident they’ll reach a fair assessment.”

March 23, 2014 at 01:08 PM | Permalink


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Umm, 10 years for killing a newborn through starvation and exposure doesn't seem at all unreasonable to me. I am actually amazed that a state convict would typically get a sentence shorter than that for the described behavior.

Posted by: Soronel Haetir | Mar 23, 2014 2:32:28 PM

I remember reading a discussion once that Federal Rules of Evidence 413 through 415 (prior bad acts of sex crimes) rarely matters since most sex crimes are state level. The one big exception is on reservations - making these often criticized rules of evidence more likely to apply to Indians than others.

This article and that discussion I read are more about unintended consequences than deliberate policy, but I do wonder why reservations can't prosecute their own crimes on reservations instead.

Posted by: Erik M | Mar 23, 2014 4:49:23 PM

A certain phrase pops up in political discussions and it is related here to the notion of sovereignty on the Reservation. It is States Rights!. The articulators often put an exclamation point at the end. It arose back in the days that the federal government was trying to stop the Klan from lynching negroes for such things as walking on the sidewalk. The Sheriff might be wearing one of the Klan hoods during the lynching. But when the feds tried to prevent this the local yokels yelled "StatesRights!". On a similar vein it would seem like the Indian nations have reservations which are recognized as sovereign by various treaty laws. It seems legitimate to me that the Indian defendants and Indians living in the Reservations should prefer tribal judicial governance. State county jurisdiction would be preferable to the federal district court.

Judge Myron Bright is one of the best judges to ever sit on a federal appellate court. He lives in Fargo, ND. I am going to look up his dissent in the case which is mentioned in the article. Judge Bright is also one of the three authors of Objections At Trial, which is a handbook for trial lawyers that no lawyer in federal court should leave home without. Ron Carlson and Imwrenkelried are the other two authors. Great book.

Posted by: Liberty1stl | Mar 23, 2014 5:23:45 PM

I see no way to disagree with Soronel.

In addition, federal sentences often differ from state sentences, just as sentences in one state differ from sentences in another. That's not "disparity," it's federalism. In other contexts, like drug legalization, federalism gets celebrated on this board.

But for however that may be, murdering a defenseless baby by just leaving him to die is outside the bounds of civilized life. She's lucky to get just ten years.

Posted by: Bill Otis | Mar 23, 2014 6:39:37 PM

I agree with Bill Otis in the above comment. Why would ten years be considered onerous or too long? Jeso, this is murder of a baby. If she has some mental problem then plead not guilty by reason of insanity. I figure that a tribal court would be tough on her.

Posted by: Liberty1stl | Mar 23, 2014 7:53:34 PM

I agree that 10 years doesn't strike me as particularly excessive, but infanticide immediately post-birth by a mother has a very long history, and has never been treated as harshly as a run-of-the-mill murder (I believe Judge Bright's dissent mentioned this). Perhaps that's wrong or founded on sexist ideas about women's capacities, but it's not a crime for which someone typically gets life in prison.

Posted by: Jay | Mar 23, 2014 9:02:50 PM

This lady didn't get life either. So?

Posted by: Wayne-O | Mar 25, 2014 8:53:29 PM

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