- Associated Press - Wednesday, June 8, 2016

FLAGSTAFF, Ariz. (AP) - A group of judges, prosecutors and tribal officials says not enough data exists to determine whether American Indian defendants are treated differently for crimes under state and federal law.

The group was tasked with exploring the question in the first review on the effect that U.S. sentencing guidelines have on tribal communities in more than a decade. It found people living and working in Indian Country had a widespread perception that tribal members get both longer and shorter sentences.

“They would have anecdotes to back it up, but we don’t do business based on anecdotes. We do business based on hard data,” said Kevin Washburn, a University of New Mexico law professor and member of the Chickasaw Nation. “And we didn’t have hard data.”

American Indians are thrust into the federal system when they commit major crimes on tribal land. Most anywhere else, criminal cases get handled by the local district attorney or county prosecutor.

The group formed under the U.S. Sentencing Commission last year sought data from states where federal authorities prosecute the majority of American Indians, such as Arizona, New Mexico, Montana, North Dakota and South Dakota, and from the limited number of states that have jurisdiction over reservation crimes.

Few states responded, and others didn’t have the resources or purposely don’t classify data by race or ethnicity, the group found.

The group asked the commission to support congressional action requiring states that use federal funding to operate prison systems gather information on the sentencing of American Indians. The commission’s own data also should include whether an offender is defined as American Indian under federal law and the location of the crime, the group said.

The group’s review of the commission’s data hinted at disparity between American Indians and non-Indians in the federal system.

Even with the data, it might not be easy to make comparisons between state and federal defendants because each state can approach sentencing differently, said Neil Fulton, a federal public defender in the Dakotas who was part of the group.

“My observation is sentencing ultimately is a very individualized process,” he said. “You can have two similarly situated individuals who get different sentences based on individual differences of the case and the person.”

The group also had suggestions for amending U.S. sentencing guidelines, which provide a basis for federal judges to impose punishment. Among them is a definition of “court protection order” and clarification on when tribal court convictions might be considered by federal judges to impose stricter punishments, if tribes share those records. Convictions in state courts automatically factor in.

The group will present its findings and recommendations to the U.S. Sentencing Commission next month.

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