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South Dakota Natives fare poorly in justice system

VERMILLION, S.D. - Gov. William Janklow once said he was angry at criticism of South Dakota over unfair law enforcement and judicial treatment of American Indians.

He ordered a study from the Government Research Bureau at the University of South Dakota, but it showed that the voices of negativity were right.

Study data suggest that American Indians do not receive equal treatment in the criminal justice system. Natives are at a disadvantage in length of sentence, bond determination, release from prison and plea-bargaining.

The study also stated that non-Indians were treated unfairly in certain areas, such as violent crimes involving domestic violence and vehicular homicide, and non-Indians went to trial more often. Yet the non-Indians were more likely to be acquitted or receive suspended sentences than were American Indians.

Overall, said the study, "American Indians were typically given longer sentences for cases involving violent crimes, while whites received longer sentences for cases involving non-violent crimes,"

Even though there are disparities in treatment between the non-Indian and American Indian communities, the study stated that the greater number of disparities was found among the American Indians.

In December 1999, the U.S. Commission on Civil Rights listened to scores of anecdotal accounts that accused the state judicial system of racial irregularities. Gov. Janklow insisted that anecdotal evidence was not acceptable. He frequently stated publicly that he wanted to see facts.

This study put facts on the table and raised serious questions about treatment of American Indians, but limitations in the data prevented absolute conclusions.

The South Dakota State and Tribal Relations Interim Committee failed to support any legislation in the 2002 legislative session to deal with racial profiling.

Racial profiling is only one of the many problems facing American Indians who have to face the judicial system. Stories of cars that are stopped for minor violations or just at random, as some people claim, find that all people in the vehicle are screened for outstanding warrants. Some warrants may be years old.

American Indians make up 8.3 percent of the population of South Dakota, but at present 22 percent of the state inmate population is American Indian.

Until 1940 the prison population of American Indians was relatively small at 12.5 percent. Of the 505 inmates, 63 were American Indian in that year. That figure doubled by 1950 with a 23.2 percent American Indian inmate population. Current figures are at the 1950s level.

In year 2000 numbers, 2,563 inmates are non-Indian and 562 are American Indian. The overall inmate population continued its steady growth since 1989 when 1,223 inmates were housed in state prisons. Female American Indian inmates averaged 34 percent of the inmate population over the period of 1980 through 2000.

Data collected by the study shows that American Indians do not commit more crimes per individual or more serious crimes per individual than non-Indians do. Since that is the case why are there more American Indians incarcerated than population percentages would show?

Racial discrimination comes into play in the disparity between the two races in bond determinations. Non-Indians are more likely to be released on bond, while American Indians are either not allowed bond or are given higher bond to prevent flight.

Discrimination might also be found also in trial procedure. A higher percentage of American Indians plea-bargain or are convicted of crimes than non-Indians.

Data show that American Indians are less likely to receive suspended sentences or dismissals than non-Indians are. The disparity is very wide; only 13.9 percent of American Indians receive suspended sentences, compared to 80.4 percent for non-Indians. And 77.8 percent of non-Indians will be acquitted, compared to only 11.1 percent of American Indians.

American Indians are also more likely to be transferred to alternative courts, e.g. the federal or tribal court systems. The tribal court systems do not deal with criminal cases. Criminal charges are reviewed in federal or state courts, with federal courts forced to stick to stringent sentencing guidelines where state courts are more flexible and sentences will contain possibility of parole.

As the data again show, American Indians fulfill more of their sentences than do non-Indian inmates.

"Our empirical analysis concludes with a discussion of the frequency of concerns for discrimination. American Indians were disadvantaged in a majority of the 30 relationships we tested in this research," the study stated.

"The employment of the 20 percent threshold test, along with a common sense approach, suggests that American Indians are not treated equally in the South Dakota criminal justice system. Their treatment in case disposition, bond determination, and sentence length in violent crimes does not coincide with the severity or number of charges associated with their cases in the dataset.

"Further, they experienced disadvantages in the length of prison time served and in the type of release from prison. However, these measures have changed considerably since the 1996 parole reform and are expected to continue to increase parity between the two groups in the future."

The study was researched and written by Rich Braunstein and Steve Feimer of the Government Research Bureau at the University of South Dakota.