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No reform in sight for racist prison systems

If you were ever in suspense about it, it looks like you can relax -
detention facilities in Indian country are not going to get funding for
reform any time soon. The demise of two bills in the 108th Congress settles
that.

The neglect for Indian prisons, and Indians in the prison system, will go
on despite two watershed reports in the past couple of years. The one from
this year, the Office of the Inspector General for the Interior
Department's "Neither Safe Nor Secure" report on Indian-operated detention
facilities, got the most attention.

It examined the federal prison system for Indians "as run by the BIA and/or
tribes." It was completely scathing in its assessment of these facilities,
but it buried one key fact that tribal leaders later brought out: Federal
funding shortfalls have made it impossible for tribes and the BIA to keep
pace with basic maintenance, training and other functions at detention
facilities, much less implement needed reforms. Funding for detention
facility construction has fallen dramatically over the past two fiscal
years, by almost 90 percent to under $2 million in fiscal year 2004.

On this as on many other issues, we cannot close our eyes to the problems
that plague us - but nor should we be misled by federal agencies into
bashing our own people because they can't perform miracles of oversight and
effectiveness without proper funding. Instead of highlighting the shortfall
in federal funding, the OIG report highlighted tribes that have used casino
wealth to establish their own detention facilities.

But if we can't get Congress to address Indian prison reform, we can at
least recognize the neglect for what it is. It is racism pure and simple.
The American criminal justice system is racist. Indian detention facilities
don't get the attention they need because it's easier for everyone to just
lose sight of Indian prisoners, just as it was easier for years to lose
sight of whole Indian nations.

Proving the charge of racism in criminal justice is the burden of a
research project that appeared in 2003. "South Dakota Criminal Justice: A
Study of Racial Disparity", by Richard Braunstein and Steve Feimer,
appeared in 2003 in the South Dakota Law Review.

In a study of data from the criminal justice system in that state, the
authors found consistent disparities between Indians and whites, almost
always to the disadvantage of Indians.

Indians do not commit more crimes or more violent crimes in South Dakota
than do whites. But despite that, Indians are denied bail eligibility more
often than whites (judges seem to fear they'll take flight to reservations,
where state jurisdiction may not reach). They move through the criminal
justice system more quickly and are "slightly more likely to be convicted,
less likely to be acquitted and less likely to have their case either
dismissed or suspended than are whites in South Dakota."

They go to trial less often because they accept plea bargains more often,
and they rely more often on court-appointed counsel. "This is problematic
for American Indian defendants because our data shows that the acquittal
rate is lower and conviction rate is higher for defendants with court
appointed representation. As such, legal representation is likely to be an
intervening variable that may bias case dispositions against American
Indians."

Indians receive tougher sentences in South Dakota: "... even though some
balance exists on the surface between longer sentences for American Indians
in violent crimes and longer sentences for whites in non-violent crimes,
the reality is that American Indians are given longer actual sentences in
66 percent ... of the crime areas tested. This occurred in a context where
American Indians committed, on average, less numerous and less serious
crimes on the dockets studied here."

Like the careful researchers they are, Braunstein and Feimer were too
cautious to suggest the disparities add up to racial bias. In their view,
that issue needs more study.

But you and I can recognize the obvious. Even if it proves out that Indian
distrust of the criminal justice system in South Dakota drives many of
these discrepancies, it's a distrust derived from the state's inexhaustible
racism. South Dakota, historically one of the most racist states in the
union, should not get the benefit of the doubt now that we find Indian
offenders can expect more time and harder time there than their white
counterparts.

Indian offenders should get the benefit of any doubt here. And beyond that,
they should get the benefit of committed reform, reasonably funded.

Rebecca Adamson is the president of First Nations Development Institute and
a columnist for Indian Country Today.