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Native Sun News: Federal sentencing impacts Indian inmates

The following story was written and reported by Brandon Ecoffey, Native Sun News Managing Editor. All content © Native Sun News.

United States Attorney General Eric Holder. COURTESY/

New Fed sentencing impacts Natives
Brendan Johnson chides South Dakota media
By Brandon Ecoffey
Native Sun News Managing Editor

RAPID CITY — In a speech to the American Bar Association last week, United States Attorney General, Eric Holder, introduced a dramatically different approach to how the federal government will now prosecute and sentence non-violent drug offenders.

The new approach calls for a reduction in federal prosecution of low-level offenders and advised federal prosecutors to recommend alternative sentencing to prison time. These new guidelines, if implemented, will have a direct impact on the length and types of sentences doled out for drug crimes committed on Indian reservations.

“Although incarceration has a significant role to play in our justice system, widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable,” Holder said. “It imposes a significant economic burden and it comes with human and moral costs that are impossible to calculate.”

Over the course of the last 40 years, nearly 1 trillion dollars has been spent on the eradication of illegal narcotics in the United States. This influx of money and manpower however has not resulted in a significant decline in illegal use amongst Americans. In fact, the rate of use across the United States has roughly remained stable during this same period of time. What has changed however are the incarceration rates that have shot through the roof, growing by nearly 800 percent since 1980. Currently, the federal prison system operates at 40 percent above capacity, houses 219,000 inmates, and costs the federal government over $80 billion annually. Half of the prisoners currently housed in the Federal Bureau of Prisons are serving time for drug related offenses.

When combining the population of all prisons nationwide, the total is an astounding 1.57 million Americans currently incarcerated in the U.S. and several million former offenders who often struggle with finding housing and employment. Although the United States only has 5 percent of the world’s population, it currently holds 25 percent of the world’s prisoners.

During the speech, Holder ordered federal prosecutors across the country to use more restraint when pressing charges in low-level drug cases that involve non-violent offenders who have no significant criminal history or ties to organized crime. He would also say that prosecutors are being advised to avoid triggering mandatory minimum sentences.

Mandatory minimum sentencing goes into effect when certain quantity thresholds are surpassed when a drug crime is asserted in a federal indictment. The way that Holder advised prosecutors to avoid triggering mandatory sentencing was to not list these amounts when charging the accused.

“The course we are on is far from sustainable. And it is our time and our duty to identify those areas we can improve in order to better advance the cause of justice for all Americans,” said Holder. “And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate not merely warehouse and forget,” he would add.

The move by the justice department may fulfill a campaign promise made by President Obama to address the racial disparities in sentencing and overcrowding in the prison system. President Obama was influential in pushing for the implementation of the Fair Sentencing Act that helped to reduce sentencing disparities between crack cocaine charges and powder cocaine charges.

Prior to its passage, those who were charged with crack cocaine as opposed to powder cocaine were serving far longer sentences. As a result, African American prisoners, who are statistically more likely to sell crack than other minorities, were being sentenced to longer sentences. Although there is still a disparity the difference has been reduced.

The DOJ’s new Smart Crime initiative is being praised by many groups who have questioned the usage of mandatory minimums.

"This is a win for people concerned about over federalization as well as over criminalization we just can't keep making a federal case and a 10-year federal prison stay out of all these nonviolent drug offenders," says Monica Pratt Raffanel, a spokesperson for Families against Mandatory Minimums. "States can handle drug offenders like these and, in many instances, give them better access to the treatment and supervision they need to turn their lives around."

For Indian country, the new changes are sure to have an impact because of the presence of federal jurisdiction over major crimes on reservations. Federal jurisdiction exists as a result of the Major Crimes Act which was enacted after the U.S. Supreme court decision in Ex Parte Crow Dog in 1883. Ex Parte Crow Dog was a murder case involving two Brule Lakota on the same reservation. When Crow Dog, a Lakota, killed another tribal member the tribe dealt with the murder in a traditional way. The federal government however was unsatisfied with the traditional practice of making amends and attempted to try Crow Dog for murder. Crow Dog appealed the case and the Supreme Court ruled in 1883 that the government had no jurisdiction in the case. Congress then passed the Major Cirmes Act that orginally included 7 offenses, but has since expanded to 16, including felony drug charges.

South Dakota United States Attorney, Brendan Johnson, who was a major advocate for the inclusion of the tribal provisions in the newest version of the Violence Against Women Act thinks that the new initiative proposed by Holder can play a huge part in Indian country if tribes implement the Tribal Law and Order Act.

“What no one is bringing up, especially the press in South Dakota, is what does this look like in Indian country? This really has an important connection to the Tribal Law and Order Act because what we see is that when tribes adopt the Tribal Law and Order Act it can increase their sentencing authority so more of these lower-level drug cases can go into tribal court instead of federal court. This is a good thing; we need more cases to go into tribal court,” he said.

The Tribal Law and Order Act was signed into law by President Obama in 2010. The law strengthens the authority of tribal courts to increase jail sentences handed down in criminal cases. For many in Indian country it is seen as a way of expanding the sovereignty of tribes, however, certain criteria must be met by a tribal court prior to its implementation.

“What tribes can do with the Tribal Law and Order Act they don’t have to adopt the same western system you see in the federal courts or even the state courts. They can create systems of holistic approaches that can treat the individual,” added Johnson.

Johnson said that the new approach still doesn’t mean that prison time will be abandoned in all cases.

“I think that Attorney General Holder’s Smart Crime Initiative changes some of the focus for first and even second time offenders. The focus needs to be more on rehabilitation rather than incarceration. We don’t want our federal prisons to be places where people are warehoused and forgotten. It makes more sense to look at treatment options rather than merely incarceration. Now that doesn’t mean that people who are leading large conspiracies or are violent criminals are not going to receive prison time they still will. But particularly this is geared for nonviolent first time and nonviolent offenders,” said Johnson.

In the speech, Holder said the federal prosecutors are being advised to develop locally specific guidelines that best suit the scenarios and types of crime faced by law enforcement in any given area on a daily basis.

“Well, we are in the process of working with our law enforcement partners to make sure that all office protocols are in line with the Attorney General’s speech and it is something that our office is looking at,” he said.

Holder also took steps to make it easier to release elderly prisoners, those that are sick, and not a threat to the public, and called for alternative sentencing, as well as directing prosecutors to reduce recidivism.

For some however the move by Holder is not enough.

“The real solution is one that congress takes on and one that Congress has to make. There are a lot of problems with cases (involving natives) they are put in federal prisons and moved far from home and there are a lot of problems from a tribal point of view with cases going federally generally,” said said Molly Gill, government affairs counsel for FAMM.

“What Attorney General Holder has done is the least that he can and what we need now is for congress to pass the Justice Safety Valve Act which would create a safety valve for all mandatory minimum offenses for judges or to just get rid of them all together or provide judges with more flexibility (in sentencing),” said Gill. “This is a really important issue for tribes,” she added.

The concern of many is that the fix implemented by Holder may only last until the next administration who could redirect the U.S. attorney community to go back to the old way of doing things. Gill would say, “It is a small and temporary fix." On August 16, Rand Paul (R-KY) who along with Patrick Leahy (D-VT), has sponsored the Justice Safety Valve Act, wrote an op-ed for the Washington Times where he pleaded for support of the new legislation.

“Mr. Holder called our current system “broken,” and he couldn’t be more right. Congress needs to consider and pass my bipartisan legislation to provide flexibility for federal judges in sentencing nonviolent offenders, which I have introduced with Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat. The United States has the highest incarceration rate in the world. Many of those people deserve to be in prison; however, some of them do not. They find themselves incarcerated owing to a misguided focus on draconian punishment that does nothing to enhance public safety,” Paul wrote in the piece.

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