‘Terrible Racial Disparities’ Not Fixed With SD Juvenile Justice Reform

Although South Dakota's Native population is only 9 percent, almost 40 percent of the state's confined youth are Native.
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The following is the first part of a three part series taking a look at the past, present and future of the juvenile justice system within South Dakota and how it pertains to Native youth. In this part of the series we take a look at the current state of the juvenile justice system and treatment of Native youth as a whole.

South Dakota took a hard look at juvenile justice, and found glaring problems with its system. The “Juvenile Justice Reinvestment Initiative Work Group’s Report,” issued in November 2014, resulted in the passing of State Bill 73 in January. The bill calls for an overhaul of South Dakota's juvenile justice system, including a 50 percent reduction of incarcerated youth by 2020. But for Native youth, will that be enough?

Joshua Rovner, a state advocate associate at The Sentencing Project, Washington, D.C., doesn’t think so. He said that nationally, Native youth are arrested less often than all other youth — but not in South Dakota. There, the Native population is 9 percent, but comprises almost 40 percent of the incarcerated youth. “South Dakota shows terrible racial disparities,” Rovner said. Sarah McGregor of ALIIVE, a diversion program in Roberts County, South Dakota, noted that law enforcement makes contact with Native versus white youth at a 9 - 1 ratio.

Though the JJRIWG Report barely mentions Native youth, the statistics are shocking nonetheless:

— South Dakota’s youth are locked up more than 3 times as often as youth in other states.

— South Dakota’s youth are half as violent as the average of youth in other states.

— Of the list of offenses that result in youth confinement, only one is a felony. In a January 13 press conference, South Dakota’s Governor Dennis Daugaard explained that in 2013, seven of every 10 youth committed were there for probation violations and status offenses like underage drinking or truancy. “In fact, there was only one felony offense among the top 10 committing offenses – burglary in the 3rd degree,” he said.

— South Dakota’s time served is getting longer. “In 2007, juveniles averaged 12 months in out-of-home placement. By 2014, that had risen to 15.3 months. That was the average stay,” Daugaard said.

— Daugaard also said that “admissions to probation have been falling, with more probationers being low risk, lower level, but average time on probation is longer.”

— The arrest rate for drug possession and alcohol possession is much higher in South Dakota than other states. In South Dakota, 1,172 South Dakota youth were incarcerated because of alcohol, versus the national average of 234 in other states.

— The rate of incarnating youth in South Dakota has dropped 2 percent in the last few years, versus a 48 percent drop nationally.

Governor Daugaard reported that juvenile justice reform was partly due to the costs of confining youth, which “ranges from $41,000 to $144,000 per year, depending upon the program.” He said that by encouraging the courts to refer youth to community based diversion programs for low-level offenses, there should be “less crime, lower costs for taxpayers, and better outcomes for South Dakota’s youth and families.”

Steven Emery, Rosebud, secretary of South Dakota’s State Department of Tribal Relations Committee, said a task force will be looking at culturally appropriate diversion programs across the country, running focus groups and making recommendations to the state.

But a close look at the statistics and reform still have some activists concerned. The Lakota People’s Law Project has been investigating Indian Child Welfare Act abuses and allegations of exploiting federal reimbursements by South Dakota’s foster care system, which they say is paralleled in the DOC.

South Dakota’s Native families are already on high alert. An ACLU lawsuit revealed that by violating the ICWA, South Dakota neglected to provide Native parents due process in the courts, resulting in the removal of more than 700 Lakota children per year. Matthew Renda, LPLP press director, and Anthony DeLuca, researcher at LPLP, say that based on interviews they have had with hundreds of Native families in South Dakota, there is a good reason to believe families of incarcerated youth are suffering the same lack of due process.

While advocates agree an overhaul of South Dakota’s juvenile justice system is long overdue, they are concerned that the system may still be heavily weighted against Native children.

RELATED: ‘Cooked to Death’: Inside South Dakota's Juvenile Justice Reign of Terror