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Federal study to again look at reservation sentencing disparity

FARGO — Dana Deegan is serving a 10-year sentence for placing her newborn son in a basket and abandoning him for two weeks, allowing him to die.

Deegan, who was 25 years old when her son died in 1998 on the Fort Berthold Indian Reservation, had three older children and suffered from depression and abuse. She pleaded guilty in 2007 to second-degree murder to avoid a possibly harsher sentence.

Advocates have said her sentence was much harsher than those given for similar cases prosecuted in state courts in North Dakota — a disparity that critics say applies generally because American Indians accused of major crimes on reservations are prosecuted in federal courts, which generally have stiffer penalties.

The issue, which lawyers, judges and legal scholars have long discussed, will soon be the subject of a national study by the U.S. Sentencing Commission.

Criticism long-standing

Senior Judge Myron Bright of the 8th U.S. Circuit Court of Appeals, who is based in Fargo, has for years been an outspoken critic of sentencing disparities involving prosecution of American Indians on reservations.

The issue is also the focus of an article calling for changes to address the sentencing gaps in the current issue of the North Dakota Law Review, and the study is backed by Tim Purdon, U.S. attorney for North Dakota.

The law review authors, one of them a tribal judge in North Dakota, noted the Deegan case as a glaring example of the gap in sentences between the federal courts — whose defendants are overwhelmingly American Indians prosecuted on reservations — and comparable crimes tried in state courts.

Non-Indian women in two similar cases prosecuted in North Dakota state courts received much lighter sentences, authors BJ Jones and Christopher Ironroad noted.

In 2000, a 22-year-old woman was sentenced in Cass County for negligent homicide to three years, with imposition suspended for three years of supervised probation, which was terminated less than two years later, according to court records.

The defendant in that case was a student at North Dakota State University whose lawyer said she was mentally ill. She gave birth in the shower of a sorority house and left the newborn under her bed, covered with a blanket, and went to class.

In 2007, a 28-year-old woman was sentenced in Burleigh County to 10 years in prison, with eight years suspended, for causing the death of her newborn, which died after being left in a toilet.

Her defense lawyer — Purdon, who later became North Dakota’s top federal prosecutor — recommended a suspended sentence and argued that she lacked the capacity to distinguish right from wrong. She had been found earlier in Nebraska to be an “incapacitated person.”

Study not the first

Federal courts have jurisdiction on Indian reservations under the Major Crimes Act passed in 1885. Ordinarily, states prosecute “street crimes,” including assault, burglary, sexual assault, murder and vehicular manslaughter.

Because of strict sentencing guidelines, with mandatory minimums and no probation or time off for good behavior, sentences in federal court generally are higher than those in state courts, at least in states including North Dakota, South Dakota and Montana, lawyers and federal judges agree.

“The law needs to be changed and Indians need to be treated on an equal basis, the same as their white neighbors,” Bright said.

But many agree that state penalties for certain crimes, such as vehicular manslaughter, are higher.

That, in fact, was a finding the last time the issue of sentencing disparities was studied in 2003 by an advisory group for the Sentencing Commission.

But the group found the perception of an unfair disparity in sentences received by American Indians in federal court compared to state court was “well founded,” Purdon wrote the chairman of the Sentencing Commission earlier this month.

Purdon, who serves as chairman of the Attorney General’s Native American Issues Subcommittee, said more study is needed into the widespread perception of unfair sentences.

“If the court system is perceived as unfair it undermines my ability to make the reservations safer,” he said, adding that the U.S. Department of Justice supports further study of the issue.

Judges frustrated

Two federal trial judges in North Dakota agreed that, because of federal sentencing guidelines, criminal sentences sometimes are higher than state court sentences, but cautioned that the reverse also is true for certain crimes.

“I believe it works both ways,” said Chief Judge Ralph Erickson of U.S. District Court in Fargo. “Some crimes are less than customarily handed down in state courts,” such as vehicular homicide.

Much of the disparity comes from the lack of parole in the federal court system, meaning a defendant serves the entire sentence, Erickson said.

“That’s where the rub comes in,” he said. “We’re aware of that and it’s frustrating.”

A comprehensive study is needed to determine if there are, in fact, sentencing disparities, Erickson said. If so, then solutions can be identified.

“There’s an overall disparity in sentencing,” said Judge Daniel Hovland of U.S. District Court in Bismarck. “Generally, federal sentences tend to be more severe,” but he agreed with Erickson that there are exceptions, including manslaughter.

“I think the sentencing commission is going to take a much closer look at that issue and it will certainly bode well for everyone in the judicial system,” Hovland said. “I’m confident they’ll reach a fair assessment.”

Comparison difficult

Neil Fulton, the top federal public defender in North Dakota and South Dakota, said he does not dispute findings of sentencing disparities, but said a deeper review is needed

Sentences compiled by Jones and Ironroad show the U.S. Attorney’s Office in North Dakota obtained convictions in 377 criminal cases for the 10 most common reservation crimes, with 60 months, or five years, the average sentence.

The average sentence for sexual assault was 133 months, or about 11 years, while the average manslaughter sentence was 73 months, or a little more than six years.

North Dakota does not track sentencing patterns in state courts, so no concrete information is available for specific comparisons.

But taking into account the availability of parole and credit for good behavior, a typical five-year sentence in state court in North Dakota or South Dakota might result in the defendant serving less than a quarter of the sentence, Jones and Ironroad wrote.

“It’s really hard to compare sentences in federal and state courts,” said Jones, who is director of the Tribal Judicial Institute at the University of North Dakota School of Law as well as chief judge for the Sisseton-Wahpeton tribe and Turtle Mountain Tribal Court of Appeals.

Jones and Ironroad stressed that they are not advocating lighter sentences. They noted that many reservation residents are victims of crime. But they argue that disparities are unjust and should be corrected.

Jones is pleased that the U.S. Department of Justice supports a more comprehensive study.

“It’s creating some momentum for revisiting the issue, hopefully,” he said. “That would be great if it happens.”

Patrick Springer

Patrick Springer first joined the reporting staff of The Forum in 1985. He can be reached by calling 701-241-5522. Have a comment to share about a story? Letters to the editor should include author’s name, address and phone number. Generally, letters should be no longer than 250 words. All letters are subject to editing. Send to