3/27/03 - Public Hearing Testimony of the Hon. Lawrence L. Piersol

To: The United States Sentencing Commission
Fr: The Ad Hoc Advisory Group on Native American Sentencing Issues
Re: Interim Report
Da: March 20, 2003


In December, 1999, a public forum was held in Rapid City, South Dakota, where concerned members of the community testified about issues affecting the administration of justice and Native Americans in South Dakota. In response to the recommendations of the South Dakota Advisory Committee to the U.S. Commission on Civil Rights report arising out of these hearings, the Sentencing Commission established this Advisory Group. The Sentencing Commission charged this Group 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 held its first meeting in June of 2002. Since that time, the Group has considered data from a number of sources and is considering a number of proposals to address concerns raised by that data.

It should be noted that a continuing concern of the members the Group has been the limited data upon which to base its analysis and draw conclusions. The Group wishes to thank the support of the Sentencing Commission staff for their assistance obtaining data and information. Though based on all data that is available, often the Group has been asked to draw conclusions based on statistically unreliable data. However, the Group has done its best given this limitation and based on its experiences. The Group is considering a variety of matters not yet reported on.


As part of its analysis, the Advisory Group began by considering whether there is evidence of disparate treatment in the sentencing of Native Americans as compared with other racial groups within the federal courts across the nation. The Advisory Group examined data for Fiscal Year 2001 on sentencing violent offenses, including second degree murder, manslaughter, aggravated assault and sexual abuse offenses. In analyzing the average length of sentence by racial identity of the offender, categorized as whites, blacks, Hispanics and Native Americans, the Advisory Group concluded that sentences for Native Americans offenders for the homicide and sexual abuse offenses do not appear to suggest any significant disparity in the application of the Sentencing Guidelines to Native American offenders under the Major Crimes Act.

A marked difference in sentences of Native Americans and non-Native Americans was apparent in the data describing federal sentences for aggravated assault in Fiscal Year 2001. The mean sentence for Native Americans convicted of aggravated assault was 34 months, while the mean sentence for non-Indians was only 30 months. The Advisory Group is looking into this data further to determine the cause of this disparity, i.e., whether it is explained by the circumstances of the offenses, or whether other factors may be involved.


Because of the concerns raised by those testifying at the Rapid City Forum that gave rise to this Advisory Group, the Group decided to analyze how federal sentences compare with those for similar offenses in states that have a significant number of federal prosecutions under the Major Crimes Act. The Group is comparing what is occurring in South Dakota, Minnesota, and New Mexico. The Group attempted to get comparison data from Arizona and Montana, but this data was unavailable.

A. Second Degree Murder (18 U.S.C. § 1111)

For purposes of the interim report, the Advisory Group will not address second degree murder. Many second degree murder defendants are Native Americans. However, Native Americans do not constitute the overwhelming percentage of defendants convicted of this offense. This situation stands in contrast to the percentages of Native Americans convicted for other homicide offenses (i.e., voluntary and involuntary manslaughter). As such, the appropriateness of punishment for second degree murder may fall outside the charge of the Ad Hoc Indian Advisory Group. It is an area, however, the Advisory Group may feel necessary to address in the final report. If examined, the Advisory Group would consider whether the federal punishment for Indians was disproportionate to state punishment for Indians and non-Indians. The Advisory Group may also consider changes regarding second degree murder in relation to its recommendations on manslaughter and the decision by the United States Sentencing Commission on any change in the manslaughter guidelines.

B. Manslaughter (18 U.S.C. § 1112)

1. Involuntary Manslaughter

The statutory penalty for involuntary manslaughter is not more than six years and a $250,000 fine. The Sentencing Guidelines assign the base offense level of 10 for criminal negligence and 14 for recklessness. See U.S.S.G. § 2A1.4. Guideline commentary defines “reckless” as referring to “a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” Id. at note 1. The commentary further states that this includes nearly all convictions for involuntary manslaughter under 18 U.S.C. § 1112. The commentary notes that a “homicide resulting from driving, or similarly dangerous actions, while under the influence of alcohol or drugs ordinarily should be treated as reckless.” In note two, the comment defines “criminally negligent” as “conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances, but which is not reckless. Offenses with this characteristic usually will be encountered as assimilative crimes.” Id. at note 2.

The Advisory Group benefitted from the findings and recommendations of the U.S. Sentencing Commission’s Manslaughter Work Group Report of December 15, 1997. The Advisory Group has also benefitted from the updating of the report by Commission staff. In reviewing the data, it is apparent that involuntary manslaughter is overwhelmingly an offense that involves Native Americans. Close to 75% of the cases involved defendants who were Indian and the “heartland” of Indian country cases involved alcohol-related vehicular homicides. It should be stressed, however, that we are dealing with a relatively small number of cases in comparison with the total number of offenders in the federal criminal justice system. There were, for example, a total of approximately 30 cases of involuntary manslaughter in 2001 (reckless) while there were less than 5 involuntary manslaughters that were criminally negligent. The total number of involuntary manslaughter cases for 2000 and 2001 were less than 80.

The U.S. Sentencing Commission has charged the Advisory Group to specifically examine this area. The Advisory Group is aware of the request by certain U.S. Senators to amend the Guideline to “raise the sentencing range of imprisonment to impose harsher penalties for committing homicides while driving drunk.” This request was made in October 2002. The Commission’s interest in this issue led to a proposal published for comment, to possibly raise the base offense level for involuntary manslaughter found to be reckless from 14 to either 16, 18 or 20; and for involuntary manslaughter found to be criminally negligent, from 12 to 16. The Department of Justice, in a comment February 18, 2003, would raise reckless conduct to a level 20, and criminal negligence to 16, plus add specific offense characteristics. The Federal Defenders, in a comment submitted the same day, would propose raising the base offense level for reckless conduct to 16 and add a two level increase for specific offense characteristics.

The Ad Hoc Advisory Group studied the mandatory maximum sentences of other jurisdictions for the offense of vehicular manslaughter, as well as the median sentences imposed, and compared these with federal sentences. In light of this, the Ad Hoc Advisory Group would propose that:

The base offense level for involuntary manslaughter be raised to level 18. The Advisory Group would also recommend the addition of specific offense characteristics. There would be a (1) four level increase if the death occurred while driving intoxicated or under the influence of alcohol or drugs; (2) a two level offense increase would occur if the actions of the defendant resulted in multiple homicides; and (3) a two level increase if the offense involved use of a weapon in the offense.

In recommending these adjustments, the Advisory Group wished to address cases involving vehicular manslaughter while intoxicated, most of which involve Native American defendants. A four level increase targets the harm of drunk driving, while distinguishing it from other involuntary homicide offenses. A two level adjustment for use of a weapon targets the greater harm when weapons are used. The research of the Advisory Group and the Commission also revealed that 9% of the convictions for vehicular manslaughter involved multiple deaths. The Advisory Group was concerned, however, that commentary be added that indicated that a vehicle could only be considered a weapon if it was so specifically used. An example would be if a defendant drove a car into a crowd. This is distinguished from use of such a specific characteristic if a death occurred as a result of drunken driving.

The Advisory Group recommends no change in the base offense level for criminally negligent homicide, which is set at level 10. There are very few of these cases, and they involve conduct that is usually not alcohol-related. There appears to be no need or call for the raising of this base offense level.

Under the recommendations of the Advisory Group, a defendant pleading 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. This would have a sentence range of 30 to 37 months, which is more than double the present offense range of 10 to 16 months in such cases. The high end of 37 months would be midrange of the statutory maximum. The Advisory Group feels that this addresses specific concerns expressed by some senators and the Department of Justice regarding specifically drunk driving.

The Advisory Group does not feel that specific offense characteristics related to prior offenses of driving while intoxicated convictions or driving status are appropriate. Such concerns are better left, the Advisory Group felt, to the criminal history calculations and specifically to a basis for departure upward for adequacy of criminal history.

2. Voluntary Manslaughter

Presently, voluntary manslaughter has a statutory penalty of not more than ten years and a $250,000 fine. The base offense level for voluntary manslaughter is 25. There are no specific offense characteristics.

The Advisory Group again referred to the working group report of the Commission discussed above. It adopts a recommendation that the statutory maximum be increased from ten years to 20 years to reflect the severity of the conduct, and to bring it into line with the continuum of the involuntary manslaughter recommendations and second degree murder. In addition, such an increase would allow increased sentencing flexibility at the higher end.

Voluntary manslaughter, like involuntary manslaughter, is primarily an offense involving Native American defendants. The numbers of voluntary manslaughter cases, however, are even less than for involuntary manslaughter. In 2001, for example, there were less than 20 voluntary manslaughter cases in federal jurisdiction; in 2000, there were less than 10.

In reviewing the data and the recommendations from the manslaughter working group, the Advisory Group recommends that the base offense level stay the same. It would recommend, however, that there be a two level increase for use of a weapon and a four level increase for use of a firearm. Such an increase would address the use of weapons and firearms in such situations which, by their nature, arise from quarrel or heat of passion.

Other factors that arise in voluntary manslaughter offenses, such as domestic violence, criminal history, and so forth can be addressed in the appropriate chapters that deal with those subjects. For example, past criminal history conduct that is assaultive in nature will either be assessed criminal history points, or receive an adjustment for prior restraining orders, or be a basis for an upward departure. Similarly, if the victim has a vulnerability, an adjustment under vulnerable victim may be appropriate.

The Advisory Group recognizes that the nature of voluntary manslaughter is an intentional killing which is mitigated by an emotion, passion or quarrel, that lessens the culpability of the defendant. For this reason, extensive amendment of voluntary manslaughter was not deemed necessary aside from the above recommendations.

C. Sexual Abuse

Only preliminary data is available to the Advisory Group with respect to the sentencing of Native American offenders found guilty of various sexual abuse offenses. That data suggests that a disparity may exist between sexual abuse offense sentences in the federal courts and those in state courts. Based on available data, Native Americans receive sentences 1.53 times longer than non-Native Americans for sexual abuse offenses in South Dakota and New Mexico. This apparent disparity, although not racially motivated, disproportionately affects Native Americans because of the jurisdictional framework that places a far higher proportion of Native Americans in federal court. The Advisory Group intends to further explore the apparent disparity and, if possible, make recommendations to the Commission that may address any disparity in the context of the tragic consequences of the seemingly high incidence of sexual abuse among Native Americans.

The preliminary data also corroborates the common understanding that sexual offenses are a serious problem in Indian country. As Senior Judge Heaney of the Eighth Circuit Court of Appeals observed in 1997:

Over the last ten years at least forty convictions for the sexual abuse of children or young adults, involving Native Americans, in the United States District Court for the District of South Dakota have been appealed to this court. Of that number, at least twenty-five represented instances in which children or young adults were abused by a father or another family member. . . . [A]ll interested agencies should consider alternative programs that will reduce the prevalence of this crime on South Dakota Indian reservations.

United States v. Miner, 131 F.3d 1271, 174-75 (8th Cir. 1997). Judge Heaney recently restated that “little or no progress has been made by the United States Department of Interior, the Tribe, or any of the applicable federal or state agencies to reduce the incidence of sexual abuse on poverty-stricken Indian reservations.” United States v. White Horse, ___ F.3d ___ (8th Cir. Jan. 15, 2003) (dissenting).

Based on the available data and Judge Heaney’s observations, South Dakota appears to be representative of a general problem in Indian country. Over sixteen percent of the offenders convicted of sexual abuse offenses in state and federal courts in Minnesota, New Mexico, and South Dakota were Native American. However, Native Americans comprise only 4.6 percent of the population in those states. Two possible reasons that could reasonably explain this difference are that Native Americans may be more likely to be prosecuted than non-Native Americans, or Native Americans are more likely to commit these offenses. Regardless, attention to the problem is urgently needed.

The Advisory Group believes that sexual abuse represents a serious threat to Indian country. As both the data provided by the Commission staff and Judge Heaney’s observations suggest, a majority of Native American sexual offenses are “incestual.” It is unclear at this point whether the Sentencing Guidelines (or other congressional action) could play a role in alleviating this problem and the suffering it causes victims and their families. However, the Advisory Group has not yet abandoned the hope that the sentencing and supervision of sexual offenders can both punish and play a valuable role in the healing of victims and their communities. The Advisory Group’s final recommendations may therefore attempt to address this problem in its larger context.

D. Assault

Based on the testimony presented at the Rapid City Forum, it appears that one of the primary concerns of the communities impacted by the Major Crimes Act related specifically to the disparity between sentences for state and federal assaults. The perceived problem with the sentencing guidelines for aggravated assault is that an individual convicted of an aggravated assault in Indian country will receive a longer sentence in federal court than an individual convicted of the same offense in state court. Individuals convicted of an aggravated assault in Indian country are sentenced under the federal system. Those convicted outside of Indian country are sentenced under the state system, with the exception of other federal enclaves. The distinction is jurisdictional; however, because the majority of people residing in Indian country are Indian, individuals convicted of assault in federal court are disproportionately Indian. The jurisdictional distinction may be race-neutral (both Indian and non-Indians can be convicted under the Indian country statutes), but the impact of this jurisdictional divide has a racial effect. Sentencing Commission data shows that about 34% of those convicted of assault in the federal system are Indian, 27% are White, 20% are African American, 17% are Hispanic, and 2% are classified as other.

Preliminary data suggests there is a disparity between state sentences for assault and those arising under the Major Crimes Act. This preliminary data suggests state sentences for assault are lower than federal sentences for assault. The Advisory Group is continuing to assess this data to determine the causes of the apparent disparity. If state sentences are in fact less severe than federal sentences for the same conduct, then it is possible that individuals who are ethnically Indian may be statistically subject to more severe punishment than non-Indians. The Group will continue to collect and analyze data on this question and anticipates making specific recommendations to the Commission on how to address any unwarranted disparities.


The Advisory Group is extremely concerned about the role that alcohol plays in all offenses arising under the Major Crimes Act. This concern has been a pervasive theme in the Advisory Group’s analysis of all data available. The Group would like to see the development of sentencing options that adequately address this reality of offenses arising in Indian Country. The Advisory Group believes addressing this issue will ultimately prove fiscally beneficial, resulting in a lower recidivism rate. The Group will continue to examine this issue and expects to make recommendations concerning how to address it.


The Advisory Group has made significant progress in its work of considering any viable methods to improve the operation of the federal sentencing guidelines in their application to Native Americans under the Major Crimes Act. In addition to the discussions noted above, the Advisory Group is considering whether there are any other viable methods to improve the operation of the federal sentencing guidelines in their application to Native Americans under the Major Crimes Act. The Group expects to be able to make final recommendations on the issues identified above within the time frame for this Group. The Group welcomes any input, advice or suggestions the Commission may have on our charge.