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Report of the Native American Advisory Group

NCJ Number
Date Published
November 2003
49 pages
Formed in response to concerns that Native American defendants are being treated more harshly by the Federal sentencing system than would be the case if they were prosecuted by their respective States, the Ad Hoc Advisory Group on Native American Sentencing Issues was charged by the U.S. Sentencing Commission to "consider any viable methods to improve the operation of the Federal sentencing guidelines in their application to Native Americans under the Major Crimes Act."
The Advisory Group focused on two issues: whether Native Americans are unfairly sentenced under the Federal sentencing guidelines; and if so, how can the unfairness be redressed. In addressing these issues, the Advisory Group focused on jurisdictions with large Native American populations. The study compared the sentences received by Native American defendants charged under the Major Crimes Act and sentenced pursuant to the Federal sentencing guidelines with those defendants sentenced in their respective State courts for analogous crimes. The types of offenses considered were manslaughter, sexual abuse, and aggravated assault. The analysis of the data found that the impact on Native Americans by Federal criminal jurisdiction and the application of the Federal sentencing guidelines varied both from offense to offense and among jurisdictions. In order to address these differing effects, the Advisory Group developed recommendations for each type of offense, with attention to the role of alcohol addiction in reservation crimes. Regarding manslaughter, the Advisory Group urges the Sentencing Commission to consider revising the involuntary manslaughter guidelines so that the base offense level of reckless conduct is a level 18. The Advisory Group also recommends the addition of specific offense characteristics. The Advisory Group further proposes that a defendant who pleads guilty to involuntary manslaughter for drunk driving, with a criminal history of category I, would face an offense level of 22, which would be reduced by three levels for acceptance of responsibility, to an offense level of 19. Regarding sexual abuse offenses, it is clear that Federal sentences for this offense are longer than those for the same offense in State courts. Although the Advisory Group makes no recommendation to lower the sexual abuse sentencing guidelines themselves, it offers recommendations that could reduce the disparity between State and Federal sentencing for this type of offense. Federal sentences for aggravated assault were found to be longer than State sentences. The Advisory group recommends that the Sentencing Commission reduce the base offense level for aggravated assault by two levels. A general recommendation is that the Sentencing Commission formalize mechanisms for consulting with affected tribal communities concerning whether to make changes to the Federal sentencing guidelines for crimes covered by the Major Crimes Act. Appended list of Advisory Group members