Alaska has one of the highest incarceration rates in the country. Not only that, but Alaska incarcerates Alaska Natives at three times the rate they do non natives for a variety of reasons. This paper will look at some of the reasons that contribute to the high number of Alaska Natives incarcerated. Also, it will look at how the Alaska criminal justice system permits discrimination within the system to continue through a host of techniques. Some of these include: the exclusion of native jurors from the trial process, constitutionally questionable interrogation techniques, and the disregard and disrespect of Native traditions and issues.
Popular belief is that natives must commit more crimes than anyone else or they wouldn’t be in prison. People who are experientially separated from the criminal justice system have an implicit belief and trust that the system is fair and just. These uninformed people think natives commit the crimes, are fairly judged by a jury, and serve an appropriate sentence. A goal of this paper is to change these people’s minds and show that the Alaska criminal justice system is unfair and unjust, especially towards Alaska Natives.
Alaska Natives make up 16% of the general population and 32.7% of the state’s prison population. They are overrepresented in all crime categories except drug offenses. Notably, 43% of all misdemeanors and 41.8% of all probation and parole violations are committed by natives.
So, it’s a well known fact that natives are disproportionately incarcerated and readmitted to Alaska’s prisons. No numbers are currently available that detail the number of natives accepting plea bargains as opposed to taking their case to trial. There are some interesting figures made available from the Public Defender Office. In 1995, the total number of felony and misdemeanor cases filed with the public defender office was 11,265. Of those, 177 went to trial. That’s 1.57%, or 2,455 felonies and 8,799 misdemeanors. Since natives commit 43% of all the state’s misdemeanors, and only 0.818% of public defender represented misdemeanor cases went to jury trial in 1995, a correlation can be made between native misdemeanants and the tendency to accept a bargain over trial. In 1996, 17,866 cases were filed with the office. Of those, 201 went to trial, or 1.74% of the cases filed. In 1995, there were 3,218 probation revocations and in 1996 there were 3,546. Consider again that natives represent 41.8% of all probation revocations.
There is a statistical revelation that points to the high number of natives as representing most misdemeanors and probation revocations in Alaska and a tendency for these individuals to forfeit trial for a sentencing agreement.
Say an accused native decides to go to trial? If they happen to be from a rural area, chances are they will be unable to get a jury of their peers. Steven Conn in his “Jury Exclusion Project,” reveals that due to expected travel and lodging costs for potential jurors, the state decided it would be too expensive to bring members of villages to trial courts in Bethel or Barrow. Conn states, “More trials were to be held in predominately white cities and rural towns.” This resulted in an “effective blacklisting of many Alaska communities and their citizens from participation in the jury process.” The administrative rules implemented in the 1970’s, lengthened the list of predominately native communities now deemed unassigned to courts for jury participation. Jurors could only be selected from an area located within 50 miles of the trial court in most districts. For example, the number of persons otherwise eligible for jury participation in the fourth judicial district now unassigned increased from 2,111 in 1993, to 3,958 in 1995. This does not include “phantom court” locations where courts no longer are posted. These cost driven rules of operation exclude Alaskans from many native villages from participation in trial juries. The end result of these exclusions is the elimination of 128 communities and their residents from jury service. This includes 3,300 Alaska native jurors for cost decisions made independently of the 50 mile radius limit, 3,704 native jurors because of distance and 2,648 native jurors assigned to phantom courts. That’s 9,652 natives excluded from the jury pool by Alaskan administrative policy.
Even if a native defendant made the decision to go to trial, the system assures an unfair trial, unconstitutional to the core in that a jury of the defendant’s peers is impossible by law.
JoAnn Holmes completed a study entitled, “Sentencing Implementations and Alaska Native offenders: A Plan of Action.” She reports that 56% of Alaska native felons have prior misdemeanor or felony acts on their records and reaffirms that 41% of all probation and parole violations are committed by natives. There is no specific research concerning what types of violations natives are committing. Whether they are serious violations or petty ones could help determine if a specific shift is needed in the system. For example, are natives getting violations for getting rides from friendly felons or from driving drunk? More research is needed to determine the exact nature of these violations.
A 1999 report from the Alaska Commission on Common Rural Governance and Empowerment stated that 97% of the crimes committed by Alaska Natives are done so while under the influence of alcohol or drugs. “It seems clear that alcohol treatment and aftercare is critical if the goal of keeping Alaska Natives out of prison and keeping them from returning is to be realized. Policy changes that address native offender rehabilitation could make a substantial impact on the total number of natives in prison in Alaska,” says Ms. Holmes. She makes many recommendations to help implement change in the system, one being a need for more substance abuse treatments developed by the Department of Corrections. It’s interesting that these recommendations were made after “lengthy discussions about the lack of data and/or evaluations of current programs being used.” This information can be found inside the prisons, a place most committee members are loathe to visit.
I have insider knowledge as to some substance abuse programs in place in Alaska’s prisons. Jaymee Abear, inmate at the Hiland Mountain Correctional Center, highlights some inadequacies of the current treatment program in place there. Ms. Abear is the spiritual advisor to the Native Culture Club at Hiland Mountain. Also, she is working towards certification as a Chemical Dependency Counselor’s Aide and graciously agreed to be interviewed for this paper. She describes the correspondence courses she’s taking as ‘wonderful and very helpful.” I asked her about the “therapeutic community” or “T.C.” in place at Hiland. She says that inmates in the T.C. are bullied into the program’s participation. If they don’t enter in the therapeutic community, they are classified as “Non Programming Inmate” (NPI) and they aren’t allowed to work, don’t earn “good time” for an early release, and are limited in their ability to move into half way houses. Studies show that Alaska Natives have an 84.5% success rate at half way houses or community correctional center. Being classified a “NPI” could seriously increase the amount of jail time served and reduce the success of a native inmate released without the benefits afforded in a half way house.
She also said that the T.C. inmates share eating areas and hallways with the general prison population. The two populations are not permitted to speak to one another. They are only allowed a certain number of seconds to exchange pleasantries. She describes this practice as cruel and inconsistent with the goals of what she believes is true rehabilitation: that is behavioral change. She believes restricted contact encourages petty behavior among inmates, telling on each other for talking to so and so, etc. Again, this type of behavior is far from the goals of rehabilitation. Abear suggest keeping the therapeutic community completely separate from the general population so that intensive treatment could be fully realized. She also suggests that the probation officers working in the prison don’t want of even expect inmates to leave the system. “In a real therapeutic community, the workers would be trained professional counselors, not inexperienced, insensitive haters. They wouldn’t beat you down. Harp on what a criminal you are. Emphasize every negative part of your life; it’s degrading to be constantly reminded of your crime, your faults. In a normal place, the people working in a therapeutic community would actually try to help you deal with your behavioral problems. They would give you techniques to change and move on with your life, outside of prison. Even give you some hope.” She says guard and related workers are mentally abusive and offer no real incentives for change. Only an assurance the addicted will return. She says probation officers frequently tell inmates upon their release “See you in a few days.” Ms. Abear thinks that by forcing a high number of inmates into useless programs, the D.O.C. is guaranteed to receive funds. And that the D.O.C. justifies a program’s success by high enrollment in inmate abuse programs.
Jesse Wilson, another friend and inmate I spoke with, awaiting a transfer to Arizona, has similar thoughts. He says, “There has to be come kind of kick backs or funding going on or these people wouldn’t force, blackmail, or coerce inmates into treatments that are a joke to begin with.” Both inmates I interviewed are convinced of this and further research could address these concerns.
Where does the $30,000 alleged operational costs for a medium security bed go? When I tell inmates or former inmates this $30,000 medium bed operation expense figure, they say something like, “It’s a lie! We eat like crap and freeze all night. They aren’t spending money, they’re making money. Where does the money go? It’s not going to inmates.” I believe this is true, but cannot prove it with the information available to me today.
In an Oregon legal review article titled, Bush Justice: The Intersection of Alaska Natives and the Criminal Justice System, Rachel King, former public defender for the Northwest Arctic Borough, offers additional insights into the criminal justice system and how natives are particularly disserved by it. She says, “The criminal justice system is not working in rural Alaska because the adversarial system is incompatible with traditional culture and because life in rural Alaska poses many practical problems.” She relates some bizarre information worth mentioning, such as the igloo shaped magistrate’s office in Selawik. Or the intoxicated client she met moments before a hearing who greeted her with, “I hate white people, I hate you, I hate you, I hate you.”
Ms. King also emphasizes that a sentencing judge considers a defendants criminal record, employment prospects, and likelihood of success in a treatment program. Since natives commit 48% of the probation violations, they obviously have prior criminal records. This affects the length of each consecutive conviction/prison stay through statutory presumptive sentencing strategies. King mentions a case that illustrates some of the problems prior offenses have on natives and their sentence lengths. A 30 year old Inupiat man from Kotzebue has 22 prior misdemeanor convictions, all alcohol related. Ms. King says “I represented him on a charge for theft of a bottle of vanilla, which he stole for its alcohol content. His alcohol problem was so severe that he told me he drank cocktails made from Lysol and hairspray diluted with water.” He got 90 days for the vanilla theft.
I asked Ms. Abear if she knew or heard anything about women from rural areas serving time in Hiland. She told me about a “real young native girl, 19 or so, from the bush. She got drunk one night with some friends, shot a gun off in the air, you know, Yahoo! And she got a year for that...Never been in trouble before either, poor dear.” In this case, it appears the justice system felt it necessary to harshly punish one to impress and scare other possible drunk teenagers in the bush.
Abear also told me about another “young native girl that was in here awhile. She always complained about her stomach hurting. Everyday she’d be holding her stomach and saying it really hurt. She got out and died of stomach cancer.”
The state complains of prison overcrowding and mounting expenses, yet follows a sentencing policy that requires more jail time for each offense, even if the offenses are minor and/or the result of a substance abuse problem.
Other issues King highlights from her experience as the sole public defender for the entire Northwest Arctic Borough include the cultural differences she perceives between natives and the legal system they are subject to. In all three geographic areas in Alaska she worked as public defender, native clients were “more likely to confess than not”. She says, “In pre-magistrate times, and Eskimo’s tendency to confess had the practical purpose of mending disrupted social relations and worked as a positive social tool. As the statistics on guilty pleas and rates of conviction from one Northern Eskimo magistrate court indicate, the aggregate effect is that an arrested Eskimo is a convicted Eskimo.” She says Yupik tendencies to confess stem from “a belief that emphasizes the universe responds to human actions. A failure to disclose offenses could influence health, luck in subsistence pursuits and interpersonal relationships.”
Also, she mentions the effects alcohol could have on a native detainee. Detainees in general are very vulnerable. Couple this with and alcohol induced blackout at the time of their arrest and the result is often an abuse of Fifth Amendment US and Alaska State Constitutional rights against self incrimination. These natives wake up in custody and the cops tell them they said incriminating things. Since they were in a blackout, they tend to believe what the cops say. This is an unconstitutional, illegal police practice. Miranda rights were enacted to protect against this kind of over-zealous prodding by the police.
Work history is another consideration made by a sentencing judge. Again, natives are discriminated against in these considerations. The judge will not consider subsistence activities as equivalent to holding a traditional job. As a result, the native living a subsistence lifestyle is persecuted by the court because of this choice and cultural right, and is sentenced to a longer time to serve.
The final factor King mentions that the judge considers before sentencing is, the likelihood of defendant’s rehabilitation. As seen earlier in this paper, the programs available inside prison are said to be ineffective and inappropriate. Even on the outside, the hoops one must jump through to be in compliance for alcohol screening are enormous. Ms. King relates the trouble an older Aluyiiq man from the village of Karluck experienced attempting to comply with court orders. The treatment he was ordered to complete was unavailable in his village. He had to fly to Kodiak, where the counselor recommended he attend an intensive outpatient program that met twice a week for six weeks. “This man was in his sixties and lived on a limited income. He did not have any place in Kodiak where he could live during treatment, nor could he afford to fly back and forth twelve times in the course of six weeks. Karluck had no alcohol programs he could attend. I suspect his chances at completing the requirements of the alcohol program were slim. Even if he completed the program, many people in similar situations could not.”
The alcohol screening requirements imposed on many rural native defendants provide no understanding or tolerance of their personal, unique situation, and little to no encouragement, practical opportunity or incentive for success.
Here in Juneau, the Juneau Substance Abuse Program (JSAP) is similarly frustrating in actually meeting the needs of the addicted. The court almost always requires a visit to JSAP if alcohol was even thought about during a crime. Once at JSAP, they charge $100 to watch a fetal alcohol syndrome education movie and for a referral to your next set of treatment expenses. If you don’t comply, JSAP gets a bench warrant issued against you for non compliance. JSAP is a useless and expensive, possibly corrupt program that serves to further infuriate those subjected to its ineptness and widen the gap between those who can and can’t comply with the court’s orders. That is, it provides ripe ground for non compliance and more arrests, especially for natives from rural areas with special circumstances and needs.
The state is very concerned with the high cost of incarcerating criminals, especially native ones. A general recommendation made by the Alaska Criminal Justice Assessment Commission, is “to reduce the disproportionate number of Alaska Natives...in the justice system. These efforts should include increased reliance on local justice initiatives and treatment programs.”
The Alcohol Policy Committee recommends increased probationary monitoring in the villages of misdemeanants. There’s a plan to install $600 video cameras in villages with phone service. The state is also planning to employ a federal agent to help search packages going into dry villages where alcohol is not allowed. The case of the vanilla theft and many other accounts of glue, markers, gasoline, after-shave lotion, Drano, and hair spray being abused in these dry villages shows that the problem of substance abuse will not go away simply by restricting alcohol through federal enforcement practices.
Other ideas include amending various Alaska statutes pertaining to dry villages. The legislature is recommended to decrease the amount of alcohol individuals may possess for their own use. And, to “take steps to deter alcohol sale and possession in dry communities...to require monitoring of liquor sales in package liquor stores located within 100 miles of a dry community.”
The state also would like to fund future substance abuse programs through an increase in the alcohol tax. This illustrates the attitude the state holds concerning the immense problem of alcohol abuse among natives. This recommendation suggests if natives are going to drink, make them pay for treatment because the state doesn’t think it’s a worthwhile expense. The state would rather implement all kinds of laws to monitor and punish village offenders, increasing their chances of arrest and serving jail time. Then the state complains about the expenses of arrest, travel, public defender, judge, court, incarceration, treatment, etc.
If the state had a genuine concern with prison overcrowding and the overrepresentation of Alaska Natives within the criminal justice system, they would pursue a different course of action. The fact the recommendations made to the state over the past six years have consistently said that more “culturally relevant” substance abuse treatment programs are needed and that village control of misdemeanor cases would reduce the number of natives currently warehoused in the system.
The state needs to give villages and tribal courts authority to handle the problems of its people. The state also needs to provide funds to the Department of Health and Social Services to work with villages to implement better, more relevant substance abuse treatment for their people.
Alcohol and drug problems can’t be overcome because a judge orders it to be so. Drinking alcohol or using drugs won’t stop because a judge says so or go to jail. The current programs in place by the state are inappropriate and ineffective in treating alcohol and substance abuse among the addicted incarcerated population.
The state continues to complain of the financial burden the natives are creating. The recommendations in “Meeting Basic Law Enforcement/Judicial Needs,” include the notion that, “since the 60’s (the system) has been buckling under the weight of alcohol fueled criminal cases coming out of the Alaska Native community. There have been attempts to keep up with this ever increasing load: new superior judgeships have been created in several larger rural communities; more state troopers have been hired; and new prisons have been constructed. Regardless, these efforts have not stemmed, let alone decreased, the number of Alaska Natives in various stages of the criminal justice system.” It seems obvious that the ideas and strategies described in the above quote only serve to increase the number of arrests and subsequent convictions. Hire more cops, judges, and prison workers, chances are the criminal case load will increase. But the state chooses to divert blame for the problem and instead insult the problems and inequities Alaska Natives encounter while subjected to the Alaska criminal justice system.
All is not lost however. Because great successes are happening at native family recovery camps in Minto and Sitka, there is a new program funded by a $100,000 grant from a mental health organization of the state, for a spirit camp in Hoonah. The recovery camp will be an alternative to current substance abuse treatment programs. The idea is that native participants will learn history of their culture and practice a subsistence lifestyle in a remote area camp. This type of program is a refreshing experiment and change from the ineffective ones usually supported by the state. It offers a hope that effective and appropriate treatment programs can happen in the state of Alaska.