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South Dakota criminal justice disparities explored

RAPID CITY, S.D. - Gov. William Janklow has commissioned a study to determine whether race is a significant factor in the determination of prosecution and/or sentencing of adults arrested on criminal felony charges.

It has been described as wide-ranging and thorough, but discussion at a recent forum to take public comment suggests questions it can't or won't answer might outnumber those it will.

Representatives of the Government Research Bureau of the University of South Dakota at Vermillion, which has been contracted to conduct the study, said a primary factor that will limit the study's results is that relevant data is unavailable. Several elements are not collected by South Dakota's criminal justice system.

"One of the things we admit right up front is that there is room for error in this," bureau director Dr. Steve Feimer said. "Simply because we're collecting data on human beings, we're dealing with imperfect information.

"One of the interesting issues that we would like to look at is whether or not the victim of the crime is white or Native American to determine whether or not a white person committing a crime on an Indian or an Indian committing a crime on a white person makes any difference in the sentence.

"Unfortunately, race of the victim is not a variable that is collected in many cases. And so there is a question that we cannot answer simply because it is not available."

One celebrated case where that factor is alleged to have played a part is the June 1999 death of Robert "Boo" Many Horses of the Standing Rock Reservation. He died after being left upside down in a trashcan by four white teens with whom he had been drinking. Initial charges against the teens were dismissed by a local magistrate and they have never been brought to trial.

Allegations abound that the prosecutor failed to pursue the case further because the victim was an American Indian. The U.S. Justice Department also declined to pursue the death as a civil rights violation case.

Parameters set for this new study may produce less than a full picture of racially based disparities in the South Dakota system. It will not address possible racial profiling of minorities by law enforcement agencies, it will not focus on any issues regarding juveniles in the criminal justice system and it will not address possible disparities such as differing severity of charges resulting from similar situations.

An example might be two, separate barroom brawls, one started by whites and one started by American Indians, that result in similar injuries or damage to people or property. If the white instigators were arrested for and charged with assault while the American Indians were held for a more serious crime, such as attempted murder, the study would not reveal that disparity.

Public forums have been held in several locations including one in Rapid City June 19 and another the following day in Pierre. Tentative plans exist for another in Rapid City in July.

Several individuals attending the forum told of concerns and problems with cases in the federal criminal justice system whereas the study under discussion June 20 is restricted only to individuals passing through the state's system.

A June 19 hearing on federal sentencing was conducted in Rapid City by the U.S. Sentencing Commission, the federal agency charged with oversight of sentencing guidelines that resulted from the Sentencing Reform Act passed by Congress in 1984.

Testimony at that hearing was more structured and came from tribal leaders, federal judges, professors and attorneys invited to testify.

The commission will accept written comments and testimony on disparities in federal sentencing until July 31. It should be sent to the attention of Michael Courlander in Public Affairs of the U.S. Sentencing Commission at the Thurgood Marshall Federal Judiciary Building, Suite 2-500 South Lobby, One Columbus Circle N.E., Washington, D.C., 20002-8002 for consideration.

U.S. Attorney Michelle Tapken told the commission that South Dakota is unique because of its large caseload of American Indians in federal court. She reminded commissioners that Congress adopted the sentencing guidelines to create sentencing fairness for the same crimes, provide just punishment, defer crime and protect the public.

Terry Pechota, a Sicangu Lakota and former U.S. attorney, said tribal courts should be given jurisdiction over some of the felonies now prosecuted in federal courts. "Let's return some of this jurisdiction to the tribal courts and give them the resources to do the job."

He said it is unfair for American Indians who break laws on the reservations to be given longer prison terms for the same crimes committed off reservations by whites.

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"It breeds resentment. It breeds a lack of trust in the criminal justice system."

Oglala Sioux Tribal President John Yellow Bird Steele said some of the poorest people in the nation live on South Dakota reservations. Federal judges should be allowed to consider those special social and economic circumstances when handing down sentences, he said.

"The judge should have more discretion in sentencing. Sentencing guidelines are very strict, very harsh, harsher than the state."

Steele said many young American Indians who may get drunk and break laws only once are sent to prison and are burdened by felonies on their records for the rest of their lives. "We need to give that individual a chance to be a good citizen and straighten out their lives," Steele said, adding that probation would be a more proper punishment in many instances.

There was no opportunity for comment from the general public at the federal hearing but those regarding the state system study are open to anyone.

"These forums are a necessary part of the study," said Gloria Tyon-Kozak of the Northern Plains Economic Development Center, which organized the meetings. "It's a community forum to get their input and maybe get some ideas as to issues that we've missed in the study, maybe pick something up from them that we've missed. It's also for us to inform them and educate them on how the study is structured."

"Our hope for this meeting and for all the focus group meetings we are having throughout the state is to have members of the community, regardless of their positions and their experiences, to help us identify what we should be studying," said Dr. Richard Braunstein, principal investigator for the bureau.

Several suggestions were made at the Rapid City forum about variables that should be included in the state study, but there is question whether sufficient time will be available to fully gather relevant data, officials said.

"We have an obligation to report results, if possible, in the early fall," Dr. Braunstein said. He said a target date to deliver the completed report to the governor is late October to early November.

Although several tribal presidents testified at the federal hearing and all received invitations, Tyon-Kozak said none appeared at the Rapid City forum on the state study.

Tyon-Kozak said she believes informing the public about the nature of the study and the opportunities provided by the forums for public comment will have a positive impact on how the results are received in the Indian community.

"I think it will raise a lot of their confidence. They're very distrustful and at a point where they're not sure about studies and meeting after meeting and forum after forum. This is all that has been seen to be done, there's been no end results, no steps taken to resolve these issues. I want some results."

Whatever the study shows, researchers intend to release the data but make no policy recommendations.

"The recommendations that are going to be a part of our conclusions are all going to be in criticism of what we couldn't study," said Dr. Braunstein. "So we will present to the governor and the state of South Dakota and the community at large our findings about what we think needs to be included to improve upon what we've been able to do in this preliminary and first study. In terms of recommendations for systemic reform, we're going to let the data speak to that."

Dr. Braunstein said, "From what we've heard ... so far, you can distill ... different things that we ought to be studying ... regional proximity, border towns ... the question of access to legal resources in terms of public defenders. The disparities in certain counties in terms of budgets provided for prosecution versus for defense. These are the small details of the process that will inevitably help our study become more accurate and more fair."

People raised factors they see as problems, such as the contribution of alcohol and drug addiction to the commission of crimes by American Indians and the need for more and better treatment programs as prevention, only to be told the study as contracted would not address those issues.

"The governor is more interested in treatment of the criminal justice process in terms of arrest, prosecution and sentencing," Dr. Braunstein said. "Things like access to educational programs, counseling programs, medical resources during incarceration. These kind of fall outside the purview of our study although I'm not dismissing their relevance in any way."

No firm date has been set for the next public forum in Rapid City and after July researchers will focus on gathering data from other sources.

Anyone interested in contributing input or information should contact Dr. Feimer or Dr. Braunstein at the university bureau at 414 East Clark St., Vermillion, SD 57069-2390, or call (605) 677-6468.