Examining Cumulative Disadvantage against American Indian Defendants in Federal Courts

Abstract

Sentencing scholars have recently analyzed cumulative disadvantage that minority defendants are confronted with in the criminal justice system. This research has particularly focused on black, Latino, and to a lesser extent, Asian defendants. Little attention, however, has been paid to how American Indian defendants are treated across multiple decision points and cumulative disadvantage they endure. To address this gap, we use the Federal Justice Statistics Program data and assess whether American Indians, in comparison to other racial and ethnic groups, were more likely to face disadvantage at different stages in criminal case-processing. Findings indicate that American Indians are, in fact, more likely to experience cumulative disadvantage at different stages in federal courts. Implications for theory, policy, and future research are discussed.

Keywords:

• Cumulative disadvantage
• sentencing
• disparity
• race
• American Indian

Acknowledgements

We want to thank Cassia Spohn, Danielle Wallace, and Brian Johnson for their helpful comments and suggestions. We also want to thank Marvin Krohn and anonymous reviewers for their constructive feedback and insights.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 The terms Indian, American Indian, Indigenous, and Native are typically used to describe the descendants of first inhabitants of the Americas. However, these terms are considered labels and counterfeit identities (see Yellow Bird, 1999). In this paper we use the term American Indian to be consistent with current literature and the discourse surrounding first inhabitants of the Americas (Bird, 1999; Yellow Bird, 1999).

2 The Major Crimes Act served as the first indication that the federal government would preside over serious crime in Indian Country. Today, under this legislation, the federal government is permitted to oversee 15 categories of crimes including murder, kidnapping, arson, and felony child abuse and neglect, to name a few. These include crimes committed by Natives against Natives, Natives against non-Natives, and crimes committed by non-Natives against Natives on tribal lands. Under these circumstances, Indigenous defendants are exposed to disparate treatment in federal courts because the above-mentioned crimes would commonly fall under state court jurisdiction if they involved non-Natives (Allison, 2019; Deer, 2004; Droske, 2008). PL 280 continued to limit tribal sovereignty by redirecting criminal jurisdiction for the crimes listed in the Major Crimes Act toward the state government in six states: Minnesota, Alaska, California, Nebraska, Oregon, and Wisconsin. ICRA dictates the kind of punishment a tribe is authorized to impose (1 year incarcerated, $5000 fine, or both), which include mostly misdemeanor offenses not covered by the Major Crimes Act (Droske, 2008). In Oliphant v. Suquamish Indian Tribe, tribal justice systems are only permitted to criminally prosecute individuals from a federally recognized tribe who commit offenses against other enrolled tribal members (Deer, 2004; Droske, 2008). Most recently, in McGirt v. Oklahoma, the Supreme Court ruled that much of the eastern portion of the state of Oklahoma remains as Native American lands of the prior Indian reservations of the Five Civilized Tribes; as such, prosecution of crimes by Natives on these lands falls into the jurisdiction of the tribal courts and federal courts under the Major Crimes Act, rather than Oklahoma’s courts. This fairly significant and recent case thus again affirmed that the federal government has jurisdiction in Indian Territory. Overall, these federal laws, combined with court cases, increasingly restrained tribal governments from practicing and reinforcing their own pre-established laws and overall ways of life (Allison, 2019; Deer, 2004; Droske, 2008; Snipp, 1992, Steinman, 2012). Jurisdictional issues remain complicated, variable, and potentially detrimental for American Indian defendants. It is important to highlight the distinction between the Major Crimes Act and PL 280 in the context of veiled tribal sovereignty by the federal government. Whereas the Major Crimes Act reserved major crimes jurisdiction for the federal court, PL 280 took jurisdiction and gave it to certain states. However, scholars have explained that the Major Crimes Act actually acknowledged tribal sovereignty (Steinman, 2012; Snipp, 1992): Since tribes are nations and only the federal government (not states) has the power to engage in treaties and handle legal matters with other nations, the Major Crimes Act acknowledged tribal sovereignty by stipulating that the federal courts have jurisdiction over major crimes in Indian lands. This still has major implications today (as with the recent McGirt v. Oklahoma case). On the other hand, PL 280 was a direct negation of this logic, and was seen as much more of an affront to tribal sovereignty, because PL 280’s logic negated the notion that tribes were sovereign nations, and thus American Indians could be treated like any other defendants in state courts.

3 The argument that constrained time and information is the necessary condition for reliance on stereotypes or the focal concerns has been critiqued, especially in the context of the federal criminal justice system. Specifically, federal courts have much more information about cases than state courts because every case gets a detailed presentence investigation report and calculation of the guidelines, plea agreements are detailed and formalized, and caseloads are lighter in federal courts. Thus, federal court actors may not need to be pressed for time and lack of information to connect focal concerns such as blameworthiness and dangerousness to race or ethnicity (see Johnson et al., 2008; Ulmer, 2012). As such, the focal concerns perspective may be more aptly applied to explain sentencing decisions in state courts than federal courts. We thank an anonymous reviewer for raising this important point.

4 It is important to note that the connection between stereotypes and assessment of the focal concerns may depend on local contexts, such as racial/ethnic population composition (Kramer & Ulmer, 2009; Ulmer, 2012). We thank an anonymous reviewer for raising this important point.

5 Historically, American Indians have been viewed as standing in the way of progress and societal expansion. This too has categorized them as outsiders who may be viewed as dangerous and threatening (Prucha, 1984).

6 More recently, Spohn et al. (2018) examined racial and ethnic disparities among female offenders in federal courts, finding that Latina defendants were given harsher sentences compared to their white counterparts because Latina defendants were more likely to be detained before sentencing and also were less likely to receive substantial assistance departures. Using data from state courts, however, Kramer and Wang (2019) found no cumulative disadvantage against Latina defendants, but significant cumulative disadvantage against black female defendants.

7 Ulmer and Bradley (2019) noted that certain crimes are more likely to fall under federal-state-jurisdictional overlap, even in PL 280 states, such as drug trafficking, firearms, financial crimes, child pornography, and several others. More specifically, as we have noted elsewhere, the Major Crimes Act of 1885 (MCA) affords the federal government the right to prosecute 15 categories of crimes in Indian Country. Notable high-profile crimes include murder, manslaughter, various assaults, arson, and drug trafficking to name a few (Ulmer & Bradley, 2018). Further, the passage of PL 280 placed the crimes listed under MCA under state jurisdiction in six states, including Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. Importantly, however, the Major Crimes Act still applies in all nonmandatory PL 280 states where the 15 major crime categories are still under federal jurisdiction (Droske, 2008). In sum, the federal justice system has jurisdiction for the following offense situations (see Droske, 2008; Ulmer & Bradley, 2019): federal crimes committed by American Indians in mandatory PL 280 states; Major Crimes Act offenses committed in Indian Country by American Indians against American Indians or non–American Indians in all states but the six PL 280 mandatory states; and non–Major Crimes Act offenses committed by American Indians in Indian Country against non-American Indians.

8 See Kelly (2012) for a complete explanation of how agency datasets are linked together.

9 The following districts were removed from the analysis: Puerto Rico, Guam, the Virgin Islands, North Marina Island, and the District of Columbia.

10 District-level summary statistics indicate that on average, across years and districts, 50% of districts have two or fewer American Indians and 75% of the districts have seven or fewer American Indians. Because seven seems to be a natural breakpoint, we use seven as the cutoff point and in turn include districts that have seven or more American Indian defendants for the analysis. Thus, we include the following districts: Alaska, Arizona, Colorado, Idaho, Iowa North, Kansas, Michigan East, Michigan West, Minnesota, Montana, Mississippi South, Nebraska, Nevada, New Mexico, New York North, North Carolina East, North Carolina West, North Dakota, Oklahoma East, Oklahoma North, Oklahoma West, Oregon, Pennsylvania Mid, South Dakota, Texas West, Utah, Washington East, Washington West, Wisconsin East, Wisconsin West, and Wyoming. Of the 31 districts included in our analysis, 50% of them have between 7 and 15 American Indian defendants, 40% have between 16 and 102 American Indian defendants, and 10% have between 103 and 247 American Indian defendants. To clarify, our analysis includes 31 districts whereas Ulmer and Bradley (2018) and Franklin (2013) included 28 districts in their analysis, respectively. We included 27 of the 28 districts that Ulmer and Bradley (2018) and Franklin (2013) included, and the only district we did not include is New York West. We have 4 additional districts that were not included in Ulmer and Bradley (2018) and Franklin (2013). They are Kansas, Pennsylvania Mid, Michigan East, and Wisconsin West. We conducted ancillary analysis that included 27 districts that are included in both our analysis and Ulmer and Bradley (2018) and Franklin’s (2013) analyses. The results are almost identical.

11 In this study, we follow more recent scholarship and utilize a one-stage model that includes sentence length as the outcome and non-incarceration cases as a prison sentence of zero (e.g., Bushway & Piehl, 2001; Kim et al., 2019). This approach accounts for the fact that judges consider virtually the same criteria and information when making decisions about incarceration and sentence length (see Bushway & Piehl, 2001; Paternoster, 2011; Starr & Rehavi, 2013), thus separately modeling incarceration and sentence length may not be necessary.

12 We keep the upward departure category in the dependent variable. However, consistent with prior research (see Johnson et al., 2008), we only discuss downward departures and do not discuss upward departure since upward departures in federal sentencing are extremely rare.

13 Booker refers to the 2005 ruling in United States v. Booker which classified the sentencing guidelines to advisory status rather than mandatory. Under this ruling, judges may depart from the guidelines for a number of reasons because the guidelines are no longer legally binding.

14 These departures are controlled by the US Attorney who must file a motion for a downward departure due to substantial assistance.

15 Prior research sometimes includes age-squared in the analysis to test for a potential nonlinear effect age may have (Steffensmeier et al., 1995; Shermer & Johnson, 2010). We have assessed this possibility and found that the squared term is not statistically significant, and therefore is not included in the analysis.

16 In line with prior research, missing data for this variable are coded as zero (Johnson & Betsinger, 2009, p. 1059).

17 We do not include offense severity in the models predicting guidelines departures and sentence length because in those models we control for presumptive sentence which combines the 43-point offense severity scale with the 6-point criminal history scale.

18 We perform multicollinearity diagnostics to ensure that acceptance of responsibility is not causing multicollinearity in those models. We find that the highest correlation is between acceptance of responsibility and trial (r = .65), which is below the standard of .70 for multicollinearity to be an issue, and all VIFs are below 4.

19 Wooldredge et al. (2015) discussed the presence of multiple mediating effects and some mediating effects that appear in multiple “chains.” Similarly, there are several mediating effects with some of these effects appearing more than once in different “chains.” For example, the mediating effect of pretrial detention appears in three chains linking race to sentence length (race to pretrial detention to sentence length; race to pretrial detention to charge reduction to sentence length; race to pretrial detention to guidelines departures to sentence length).

20 Before assessing the effects of race and ethnicity across multiple decision points, we conducted diagnostic tests to detect any issues with multicollinearity. Both the bivariate correlation matrix and variance inflation factors (VIF) reported no evidence of a harmful level of multicollinearity.

21 A reviewer noted that being detained might be a function of a defendant’s inability to pay a bail amount set by a judge and not necessarily that the judge believes the defendant is more blameworthy and dangerous. Given the poverty conditions related to American Indians, this is an important caveat because a higher likelihood of pretrial detention for American Indians may be confounded by financial variables which, unfortunately, are not included in the FJSP data. We thank the reviewer for pointing out this important caveat.

22 We thank one of the reviewers for raising these important points.

23 Our findings related to trial are not consistent with prior research. Specifically, we found that defendants who went to trial were more likely to receive shorter sentences, whereas extant literature suggests the opposite—that is, defendants who exercise their right to a trial are consistently given longer sentences. Our finding may be due to the fact that our analysis was limited to districts with a considerable number of American Indians. As such, perhaps in these districts, federal judges may be more cautious about harshly sentencing Native defendants following a trial in order to avoid unwarranted negative publicity given that trial cases seem to draw more attention than guilty pleas. In addition, “trials might present the opportunity for the court to see and sympathize with [Native] defendants as complex individuals, rather than as racially-based one dimensional stereotypes” (see Ulmer et al., 2010, p. 585).

24 The indirect effects in Table 3 are products of the coefficients along any one chain linking race and ethnicity to each decision point. For instance, paths (a) and (d) in Figure 1 represent the chain from American Indian to charge reduction via pretrial detention. The indirect effect of -.07 in Table 3 is the product of (a) .23 and (d) –.30. Notably, “Three-path chains often seem much weaker than two-path chains because the first indirect effect is dampened by two mediators instead of only one” (Wooldredge et al., 2015, p. 214).

25 Due to the complicated nature of the data and for ease of interpretation, only the significant direct effects were depicted.

Additional information

Notes on contributors

Erica Redner-Vera

Erica Redner-Vera, Ph.D., (2019, Arizona State University) is an Assistant Professor of Criminal Justice in the School of Public Affairs at San Diego State University. Her primary research interests include race, ethnicity, crime, and justice, especially issues concerning American Indians. Her work has appeared in Journal of Ethnicity in Criminal Justice.

Xia Wang

Xia Wang, Ph.D., (2008, Florida State University) is an Associate Professor at Arizona State University’s School of Criminology and Criminal Justice. She is involved in studies of race and ethnicity and their effects on crime and criminal justice, and the use of various analyses to test and extend criminological theories. Her work has appeared in Criminology, Journal of Research in Crime and Delinquency, Journal of Quantitative Criminology, Justice Quarterly, Law & Society Review, and other journals.