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Federal sentencing up to judges

WASHINGTON - American Indians in the federal court system may find it
easier to get a favorable sentence, and those whose sentences are
considered extreme may get another day in court.

The U.S. Supreme Court didn't overturn sentencing guidelines, but loosened
them so the judge has more discretion in administering sentences. The high
court asked that some 400 cases be reconsidered. The defendants assert they
were harshly punished under the current sentencing guidelines, which were
set by Congress.

It is expected that thousands of cases will come before federal judges
across the nation.

The court ruled that the federal guidelines violated a defendant's Sixth
Amendment right to a jury trial. The guidelines, in practice for 18 years,
asked the judges to make sentencing decisions based, for example on the
amount of drugs or the amount of money involved in fraud or theft.

The federal guidelines are stringent and have had an adverse affect on
Indian country, since most America Indians face federal court judges and
juries for crimes committed on reservations. A non-Indian who commits the
same crime and is subject to state jurisdiction may get a lesser or an
equal sentence, but is eligible for parole. There is no parole under the
federal guidelines.

"The guidelines were enacted to end unfair and disparate treatment, but
many have complained that sometimes when applied to Native Americans they
were harsh and the results unwarranted," said Professor Chris Hutton,
University of South Dakota School of Law.

The guidelines were declared unconstitutional. Five members of the court
said the guidelines were to be advisory. There were two majorities among
the justices. Hutton said the problem was that the court had to invalidate
parts of the guidelines.

This decision is huge. For years, some people have been critical of federal
judges for having too much discretion; and some people say the judges
should have more discretion, Hutton said.

"I would like to see a federal judge have more discretion. If a person has
done something not too serious, be lenient. I'm sympathetic. A young kid
that got caught up in something bad should get a break," Hutton said.

U.S. District Court Judge Charles Kornmann, an outspoken critic of the
sentencing guidelines, argued that the old guidelines were racist. In
several court decisions, Judge Kornmann referenced the unfair guidelines.

"I think the guidelines are racist, out of whack. It did not take into
account a person who has turned their life around," Kornmann said.

As an example, he sentenced a young American Indian to 24 months for
distribution of methamphetamines on the reservation. The range under the
guidelines was 51 to 60 months. "I wouldn't have given him so much if he
had not distributed so much," Kornmann said.

Congress set the guidelines 18 years ago. It is not known what will take
place now.

"They could make [guidelines] mandatory and fixing the law, or could be
satisfied. We have to wait and see," Hutton said.

Kornmann said he hoped Congress leaves the decision alone. "My major fear
would be that the guideline range would be a statutory maximum. It's nuts.
We need to be careful too, so there are no disparities, especially on
race," Kornmann said.

As for appeals for reduced sentences, it all depends on how far the case
has gone. Hutton said new cases fall under the new ruling. Old cases that
are considered final, such as those where all appeals and Habeas has been
exhausted, are not eligible for reconsideration. Cases that are not final
could be reconsidered for reduced sentences.

Kornmann said a solution to the problem would be adequate funding for
tribal court systems on reservations so they could handle many of the
issues that end up in federal court.

Judges don't always have an opportunity to view the defendant over a period
of time, in a trial setting for example. Ninety percent of all federal
cases are plea bargained. That is especially the case in Indian country.
The judge then has to rely on pre-sentence information and both parties put
forward their version of the defendant's personality and crime.

There are suggestions that sentencing commissions be formed so they can
look at all aspects of the defendant's life and crime.

In traditional American Indian cultures there has been a movement to
considered punishment by means of a tribal group, whether elders or people
chosen to sit as a sentencing group. Traditionalists on some reservations
in the Great Plains have brought the idea to state and federal authorities
that many crimes should be handled by the tribal court or a select group of
traditional people. The argument is that federal sentencing guidelines and
non-Indian juries have an adverse effect on American Indian defendants.