U.S. Commission on Civil Rights

Racism s Frontier: The Untold Story of Discrimination and Division in Alaska

Chapter 4

The Administration of Justice

For thousands of years prior to statehood, Native villages in Alaska had in place effective dispute resolution and peacekeeping mechanisms. Early in the 1900s these systems evolved into elected village councils, which assumed the law enforcement and justice roles. However, after statehood, these mechanisms were dismantled as the state assumed the obligation to enforce criminal law, and by the early 1980s few councils remained active in the criminal justice arena.[1] According to one legal advocate who spoke before the SAC, the state's legal responsibility and its execution of those responsibilities have not converged. He stated:

[A]t Statehood, the State assumed a constitutional obligation to provide equal protection under the law to all its citizens, not just to white citizens on the road system, but to Native citizens off the road system as well. The State has failed to live up to these obligations.[2]

He added that the state of Alaska, by failing to recognize the governmental powers and law enforcement authority of the tribal councils, has prevented the villages from enforcing their own laws and rendered them dependent on the inadequate services provided by the state.[3]

In September 2000, the governor of Alaska acknowledged the existence of 226 federally recognized tribes, but this acknowledgement did not include recognition of tribal enforcement powers. And without a commitment to compensate for the lack of local control, the end result has been a disparity between the law enforcement provided in urban areas and that provided in rural, mostly Native, areas.

During the community forums, the SAC heard repeated claims of mistrust of the justice system on the part of people of color in Alaska. The evidence presented lends legitimacy to the allegations of a system characterized by institutionalized discrimination and differential treatment of Alaska Natives, in particular. One panelist commented:

Those associated with the administration of justice in Alaska understand that the words Bush and village in reference to criminal justice are code words denoting Native areas where the justice services are both qualitatively and quantitatively inferior to those provided in the state's non-Native communities.[4]

Many participants cited the paintball incident as an example of unfair administration of justice. In the immediate aftermath of the attacks, only one arrest was made, and that was one of the victims. Some contend that had the roles been reversed and the perpetrators had been members of a minority group, they would have gone to jail first and the facts would have been gathered later. One panelist stated, That's the way it is in this state, and this is what has to change. [5]

There are many issues of concern for Alaska Natives in the administration of justice, which will be discussed in greater detail. Among them are disproportionate sentencing and incarceration rates, inadequate defense bar funding, jurisdictional conflicts reducing tribal responsibility, lack of basic police protection for rural communities, and underemployment of Alaska Natives in the justice system. Discussion at the forums focused on three main components under the broad category of administration of justice: law enforcement and public safety, the judicial system, and corrections.

LAW ENFORCEMENT AND PUBLIC SAFETY

The provision of law enforcement and public safety services in Alaska was the subject of intense discussion during the SAC forums. Urban and rural residents alike charged that the services provided by state and municipal entities were insufficient and often discriminatory. A theme that emerged from the testimony of Native Alaskan participants was a lack of faith in the providers of public safety and a feeling that all too often the system itself perpetuated victimhood. The SAC heard emotional testimony from several victims. For example:

• One rape survivor spoke of mistreatment and poor service from the police department, which she alleges failed to properly investigate her case. In addition, she noted that because there was no victim advocacy, or emotional or legal support for her, she had to navigate the system alone.[6]

• The mother of a murder victim, speaking from her own experience, stated that her daughter's murder remains unsolved because of lack of effort on the part of law enforcement. She questions whether the law enforcement officials assigned to the case would have spent more time on it if her daughter had been white.[7]

• One survivor of kidnapping and sexual assault expressed concern about how her case is being handled by the prosecuting attorney assigned to it. Unlike others who spoke, she expressed gratitude to the police department and the medical personnel who assisted her during the trauma, but she believes the prosecuting attorney has failed to pursue her interests in his attempt to obtain a plea bargain with a reduced charge. She stated, Basically I feel like I stand alone on this trail. [8]

Victimization of Alaska Natives

The trust that most Alaska Natives develop in their fellow man puts them in a very vulnerable position, especially in an urban area where that trust shouldn't be extended.[9]

Alaska Natives are more likely than any other racial or ethnic group in Alaska to be the victim of a crime. Next to children, Alaska Native women are the most victimized group in the state, suffering high rates of rape and domestic violence.[10] In urban areas, they are victims of crimes at rates that far exceed their representation in the general population. According to the mayor of Anchorage, despite that the city's crime rates are in a downward trend, a disproportionately high number of minorities are victims of crime.[11] For instance, Alaska Native women make up 45 percent of all reported sexual assault cases in Anchorage and 23.6 percent of the victims of domestic violence.[12] (Alaska Natives, including those who identify themselves as part Native, compose only 10.4 percent of Anchorage's population; Native women thus make up roughly 5 percent of the city's population.)

Since October 2000, at least five Alaska Native women have been abducted from downtown Anchorage and raped; since 1999 six women of color (one African American and five Alaska Natives) have been murdered in Anchorage. Four of these murders remain unsolved.[13] Alaska Native women are four and a half times more likely to be a homicide victim in Alaska than anywhere else in the nation.[14] Alaska also has the highest incidence of forcible rape in the nation, at a rate of 68.6 per 100,000 people as compared with the national rate of 34.4.[15] Statewide, between 1995 and 1999 more than 600 sexual assaults were perpetrated against Alaska Native women; 42 percent of those sexual assaults occurred in Anchorage, and the majority of them remain unsolved.[16]

Because so many of the crimes that occur in Anchorage and throughout the state involve victims who are Native Alaskan, there is cause to believe many of them are motivated by hate. In fact, the debate over whether to institute hate crime legislation in the state of Alaska has been revived in light of the paintball incident. The speaker of the State House of Representatives said there are individuals in the state legislature who are interested in pursuing hate crime legislation, and speculated there will be attempts to do so.[17] The true measure of hate crime activity is difficult to discern, however, because only the Anchorage Police Department participates in the FBI s reporting program on hate crimes.[18] Data are not as readily available for the rest of the state, and the Anchorage figures show that relatively few hate-related incidents are being reported. As the SAC forums revealed, however, these crimes often go unreported or uncategorized as such.

Unlike the paintball incident, these crimes are also rarely publicized and are not, in the opinion of many, aggressively investigated. Many within the Alaska Native community believe these crimes are symptomatic of a greater problem that is endemic to the state's criminal justice system and law enforcement programs, among others. Part of the problem, according to testimony, is that Native communities do not benefit from the same public safety protections as others.

Public Safety in Rural Alaska

Generally, the provision of public safety is the joint responsibility of state and local governments. In Alaska, however, absent a local government infrastructure in many villages, the state has assumed responsibility for providing police protection in rural communities. According to testimony presented to the SAC, the state's efforts in this area have been inadequate.

Many of the rural villages in Alaska, which are predominately populated by Natives, have suffered from inadequate police protection or other public safety measures for decades, leaving them vulnerable to crime. Alaska state troopers provide police protection to rural communities accessible by roads, but basic law enforcement in rural villages is often absent, meaning that there is less deterrence to crime and less enforcement of protective orders.

The Alaska Department of Public Safety (DPS), through the Alaska State Troopers and the Division of Fish and Wildlife Protection, provides service to 272 communities throughout the state. Sixty-four percent of those communities are accessible only by airplane, boat, or snowmobile. There are 334 troopers assigned to 42 trooper posts.[19] Inclement weather and remoteness prevent the small number of troopers from responding immediately to calls for service. According to the DPS commissioner, the simple task of responding to a request for service in remote areas is and continues to be a challenge for our department. [20]

Some Native villages are served by village public safety officers (VPSOs) who handle lower level crimes under the supervision of state troopers.[21] However, these VPSOs are relatively few in number (in 2000 there were 84 officers in 76 villages), receive less training and pay than troopers, and are not allowed to intervene in major criminal cases.[22] The VPSO program has been criticized as a separate, unequal, and insufficient form of law enforcement.[23] VPSOs are on call 24 hours a day, seven days a week. They are not allowed to carry firearms, yet one study found that more than 75 percent of village officers had responded to a perpetrator with a firearm. Whereas Alaska state troopers receive 1,130 hours of law enforcement training, VPSOs receive only 200 hours.[24] VPSOs cannot serve arrest warrants or investigate felonies without the approval of state troopers. Table 5 summarizes the differences between the law enforcement provided to on-road and off-road communities by the Alaska State Trooper program, as described by one panelist.

The state argues that the high costs associated with providing off-road law enforcement render it impossible to serve every community in rural Alaska adequately, and hence justifies use of the VPSO program, which is less expensive, even if inadequate. However, even with the VPSO program in place, one-third of the 226 villages in Alaska are without any form of law enforcement.[25] In fact, there are 165 off-road communities that lack certified police officers, 136 of which are Native villages. More than 75 villages have VPSOs, but 73 villages have no local police at all, rendering them virtually defenseless to lawbreakers. [26] More than 84 percent of the population receiving full protection from state troopers are non-Native, whereas 80 percent of the population that receive limited or no local police protection are Native.[27]

Advocacy groups and legal scholars argue that neither cost savings nor administrative convenience . . . justify discrimination in the provision of governmental services. [28] One analysis concludes that there is a statistically significant discrepancy between the level of public safety provided in Native villages and the level provided in non-Native communities, which can only be attributed to race. [29] Others have stated that lack of basic police protection for rural Alaska communities is unequal treatment that endangers lives. [30]

The lack of local police protection has several obvious implications. There is no crime deterrence, resulting in higher crime rates, as well as the illegal importation of alcohol and drugs, which are primary factors in most village crimes. Lack of police also means that less serious offenses go unpunished and that more serious crimes are not handled in a timely manner, including the provision of protective custody for victims of child abuse. One forum participant recounted the following situation:

We had a situation in our region where sexual abuse of children was reported, and it took the troopers months to make it through the community; they were attempting to question the children over the phone, but that just did not work. . . . [We had] parents calling from the villages desperate to find out what was going on with the perpetrator who was still wandering around the village.[31]

The state is not alone in its neglect of law enforcement. The Federal Bureau of Investigation has also received criticism for failing to provide adequate services to rural Alaska residents. The bureau currently has 31 agents and 34 professional support employees assigned to Alaska. The FBI is charged with investigating allegations of civil rights violations, such as race- and religion-motivated violence, involuntary servitude, housing discrimination, and hate crimes. Between 1996 and August 2001, the FBI opened 59 civil rights investigations, nine of which were investigated as hate crimes.[32]

The FBI acknowledges that its efforts have sometimes fallen short due to lack of personnel resources and an insufficient transportation budget to allow for travel to the remote areas of the state.[33] As a result, many small towns and villages, which are heavily populated by Alaska Natives, do not receive sufficient attention.[34]

THE CRIMINAL JUSTICE SYSTEM

A central concern of forum participants was that Alaska Natives are treated unfairly by the courts, as victims of circumstance and neglect. In particular, because Native communities do not have the authority to design their own methods for meting out justice, they are rendered reliant on a system that, by its operational scheme, places them at a disadvantage.

As discussed earlier, Native Alaskans do not enjoy the economic security that the state of Alaska as a whole does. Thus, access to legal representation is difficult at best, and many Alaska Natives are forced to rely on public legal assistance. According to the Alaska Native Justice Center, this problem is compounded by the fact that legal defense services funded by the state and federal governments have been reduced over the years, while funding for prosecutors has remained steady, creating an imbalance overly emphasizing criminal punishment without sufficient defensive support. [35]

Other barriers to equal access to the justice system include the residence of rural Alaskans in areas distant from urban centers, language barriers, and lack of understanding of the judicial process. There is no court system in rural villages under the state system, except for the few state-funded magistrates. Generally, defendants are tried in state courts away from their villages.[36] Thus, residents in rural areas often lack adequate attorney-client relationships and communication due to the distances that separate them. Moreover, rural defendants are not afforded the right to a jury of their peers; often the jury pool only includes individuals who reside within a 50-mile radius of the courtroom, eliminating residents of remote villages.[37]

In addition, court proceedings take place in English, which for many Native Alaskans and immigrants to the state is a second language, and with respect to legal jargon, an entirely different second language. In Alaska s court system there is a lack of skilled interpreters who can provide translation in, among others, Native, Spanish, and Asian languages. The outcome of a case may depend on the communication between the defendant, jurors, witnesses, and the judge, but the precision of legal language and the subtleties of the English language can result in miscommunication.[38] According to an Alaska Supreme Court justice, the use of interpreters is essential, but lack of funding prohibits widespread use.[39]

In 1995, the Alaska Supreme Court formed the Advisory Committee on Fairness and Access. The committee has spent the past several years studying racial and ethnic bias in the state court system and designing programs to effect change.[40] Through the course of its public hearings, the committee heard reports of many inadequacies in the justice system. In 1997, the committee released a report which found that many minority residents find the courts intimidating to the point of being inaccessible. In addition to the barriers already cited, their cases are complicated by mistrust, cultural differences, and lack of familiarity with this foreign method of justice.[41]

According to the Alaska Native Justice Center, the higher numbers of Alaska Natives in the correctional system, which this report will discuss in greater detail, reflect how Natives are treated differently throughout the justice system, not that they commit more crimes. The difference can be attributed to a lack of cross-cultural understanding and acceptance.[42] Cultural norms influence behavior, which puts Alaska Natives at a disadvantage in a system that is neither flexible nor sensitive to other perspectives. For instance, because of their nonadversarial approach to interaction and deference to authority, there is an increased likelihood that Native Alaskans will readily admit to a crime rather than fight, obey an attorney's suggestion to accept a plea bargain offer, and exhibit passivity before a jury.[43] Native peoples are also more likely to plead guilty because they are uninformed about the consequences.

One panelist stated that the right not to respond to police interrogation and the right not to incriminate oneself are anomalies within Native Alaskan culture, which is based on honesty.[44] Another stated that Alaska Natives tend to be more straightforward, willing to answer questions, and willing to seek to right whatever wrong they may have committed. Often it means confessing to a crime they did not commit or to actions taken while under the influence of alcohol, resulting in tragic outcomes.[45]

As with the law enforcement component of justice, the absence of Alaska Natives in the court system has resulted in a system that does not incorporate cultural norms and that is largely inaccessible to the Native community. One participant in the SAC forum, who was one of the first Alaska Native women admitted to the state bar, observed that in her experience, there are no Native professionals in the Anchorage district attorney's office, the attorney general's office, the public defender's office, or among social workers, child custody investigators, or judicial officers. She further speculated that because of the division caused by sovereignty and subsistence issues, there has been a backlash in urban Anchorage against Native Alaskans, resulting in their exclusion from the judicial sector.[46]

CORRECTIONS

Prisoners in the United States and in Alaska are recruited from the ranks of the poor. They are recruited from the ranks of the uneducated and the unaffiliated. Very often that translates into recruitment from minority populations.[47]

As the previous discussion demonstrated, the state of Alaska has failed to provide adequate judicial services to Alaska Natives, despite having the congressionally mandated responsibility to do so, resulting in less crime prevention, higher rates of participation in the court system, and ultimately higher rates of incarceration.

While the rate of incarceration in Alaska is lower than in the rest of the United States (336 per 100,000 as compared with 702 per 100,000 nationally), a disproportionate number of those in prisons and jails in Alaska are Natives.[48] Alaska inmates are predominantly young males (93 percent), more than half of whom are racial or ethnic minorities. Alaska Natives make up close to 36 percent of the incarcerated in the state, despite being only 19 percent of the general population.[49] Further, if one considers the real population that is likely to be incarcerated adult males Native Alaskan adult males, who make up only 7 percent of the population but constitute a third of the corrections population, are even more disproportionately represented.[50] The percentage of the incarcerated population that is Alaska Native has increased over the past decade.

The state of Alaska is currently collecting data on state felony prosecutions to determine why racial and ethnic minorities are incarcerated in numbers disproportionate to their share of the population.[51] Some panelists speculate that the cause is differential treatment in the justice system; others argue that the problem is lack of access to resources, such as prevention programs and adequate defense counsel. Still other panelists contend that the reason for disproportionate incarceration rates among minorities is racial profiling, that it starts in the streets, and that minorities are more likely to be stopped, searched, and investigated.[52]

According to an Alaska Supreme Court justice, there are no obvious answers to why minorities are disproportionately sentenced, but there may be subtle influences that work against them, particularly in rural areas.[53] For example, when rural Alaska Natives enter the correctional system, usually as a result of substance abuse, they serve time, and the condition of probation or parole is to remain in a location where they can be supervised, which usually means a regional population hub. In such environments, they are more likely to come in contact with predators, alcohol, and other potential problems. The result is that they end up back in the correctional system. In other cases, the sentence imposed may depend on what rehabilitation prospects exist. The justice provided the following example:

[In rural areas] the rehabilitation choices are usually more limited. This may cause sentencing judges to choose between programs available only in more urban areas (taking the offender away from the local community and local support) and imposing probation conditions (such as no alcohol) that the offender cannot easily meet, resulting in probation violations and re-incarceration.[54]

The Alaska Supreme Court Advisory Committee on Fairness and Access found that Alaska Natives are often forced to serve probation and parole time in urban areas away from their villages, due to lack of services in these areas.[55] The result is further isolation caused by the absence of a community support network, setting these individuals up for failure.

A representative from the Alaska Native Justice Center agreed with this assessment, adding that when rural offenders are released from prison, they are forced to reenter society in a location that is foreign to them (many lack city living and job skills) without culturally relevant services or community support to help them in their efforts during probation and parole.[56] One panelist stated:

I would say that more than half of the [Alaska Natives who] are in the system are in the system because the system cut them in a way that s culturally related . . . And it goes all the way to the arresting officer, it goes to the public defenders, it goes to the court system, it goes right through the entire system and all the way out the back with regard to probation, parole, and not being able to get back to a place so they can survive that.[57]

In addition, it is estimated that more than 80 percent of the crimes committed by Alaska Natives are committed under the influence of alcohol and/or drugs; some put this figure higher at close to 100 percent.[58] Without substance abuse treatment that is culturally relevant, these individuals are destined to reenter the system.

Despite substantial budget increases over the past decade, the Alaska correctional system has faced overcrowding in its 13 state correctional institutions, largely in regional population centers, and 15 community jails operated under contract with local governments.[59] Note that Alaska is only one of five states that have a unified correctional system; that is, the state provides both prison and jail services for the entire state, not just the convicted felony population as in the other 45 states.[60]

As a measure to combat overcrowding in prisons and jails, in 1995 the state of Alaska began contracting for out-of-state prison space. As of January 2001, the Arizona prison system was home to nearly 800 Alaskans, more than any one prison in Alaska itself.[61] One Alaska resident who spoke before the SAC condemned this practice as a hardship for families and their children. She stated that removing prisoners from the state hampers the rehabilitation process because they are separated from their families.[62]

In response to similar concerns, the Department of Corrections introduced legislation to expand the state's existing correctional facilities so that offenders could be housed closer to their communities. The legislature, however, only funded one component of the plan, which was a new jail in Anchorage scheduled to open in April 2002. In addition, rather than expanding regionally, the legislature opted to create a large centrally located prison, which is being built.[63]

The commissioner of the Department of Corrections acknowledged this progress, but cautioned that regional facilities are still needed to resolve jail overcrowding in rural communities and to prevent unnecessary transportation of inmates away from home. In addition, she stated, Institutions are at their best when they include programming that s culturally sensitive and appropriate. [64] The department has tried to integrate a variety of cultural and religious practices into the system, but the commissioner lamented that efforts have not gone far enough.

The commissioner outlined approaches necessary to addressing the challenge of incarceration in Alaska:

• Prevention in the form of education and programs for children should be improved.

• Lawmaking and funding for crime policies that focus on the offense rather than the offender should be rethought. The Department of Corrections has worked to provide lawmakers information on the impact of existing and potential legislation.

• Appropriate resources must be allocated for substance abuse treatment programs and legal representation for those who cannot afford it.

• A better approach must be instituted for managing the diverse population within the correctional system.[65]

Others who spoke before the SAC commented that the State Department of Corrections cannot fix the system's shortcomings alone, and that communities need to become involved to ensure that their members understand the process and are treated fairly. For example, for nearly 15 years, the North Slope Borough has had a prison outreach program, with an established liaison between the community and the criminal justice system. The liaison spoke before the SAC, stating:

[T]here's so much prejudice and racism and no fair justice in so many ways, especially for the Native people that are from remote areas. . . . I can really sense the frustrations of the people that come before me. . . . I think we've made some monumental moves here, but I think there's much more to be done, and I sit before you to say that there has got to be community responsibility. And the population that we're speaking of can't be forgotten.[66]

STEPS TO EQUALIZE THE ADMINISTRATION OF JUSTICE

It is the opinion of the SAC that there must be greater accountability on the part of federal, state, and local law enforcement officials to ensure that the administration of justice is carried out in a way that serves all of Alaska's communities. Many steps can be taken to improve the administration of justice in Alaska, and in fact several panelists identified programs that have been implemented to remedy the problems identified thus far.

It is widely believed among forum participants that the problem of inadequate law enforcement services is partly due to the absence of Native Alaskans and other minorities in law enforcement careers. The one exception is the underfunded VPSO program, in which 69 percent of the officers are Native Alaskan. Of the 543 employees in the Anchorage Police Department, however, there are only 81 minorities (15 percent). Only eight police officers and eight non-officers are Alaska Natives.[67] Yet there is evidence that progress has begun: the current police chief is the first Native Alaskan in that position in 21 years. The chief admitted that the department must do more to attract minorities so that it reflects the racial and ethnic composition of the community it serves. The police department recently instituted a cross-cultural recruiting team to attract applicants from traditionally untapped communities in Anchorage and throughout the state.[68]

Other law enforcement agencies are also trying to diversify and integrate their work forces. The FBI is trying to recruit Native Alaskans to serve as agents. The agency has traditionally had difficulty recruiting Natives because many fear being assigned for duty outside the state. The director of the FBI's Alaska office is in the process of negotiating a program with headquarters in which agents will be assigned back to Alaska after graduation from training at the national FBI academy. A similar program proved successful in Hawaii.[69]

Alaska's Department of Public Safety recently received a federal grant enabling it to train more than 170 tribal, village, and rural police officers. A state budget appropriation also enabled the DPS to hire four regional public safety officers, called constables, who will receive the same training as state troopers and will be able to investigate misdemeanors and less complex felonies.[70]

Alaska Natives are likewise underrepresented in legal professions, the child welfare system, and juvenile justice.[71] Overall, 9.2 percent of the employees of the State Department of Public Safety (which houses the VPSO program) are Alaska Natives; 8.7 percent of Department of Corrections employees and 5.2 percent of Department of Law employees are Alaska Natives.[72] To encourage more Alaska Natives to seek careers in the justice system, the Alaska Native Justice Center has established a program in which stipends are provided to college students seeking careers in the field. The center also sponsors an internship program.

Additional attempts have been made to bridge some of the service gap between urban and rural Alaska. For instance, the FBI plans to establish an interactive Web site with a complaint hotline to provide information to individuals in rural communities. In addition, the agency has formed working relationships with other federal, state, and local law enforcement entities. Some of its partners in these efforts include the Anchorage Police Department, the U.S. Marshals Service, the Bureau of Alcohol, Tobacco and Firearms, Alaska State Troopers, the National Guard, and the Immigration and Naturalization Service. The FBI is in the process of developing a Joint Terrorism Task Force, which would investigate hate crimes, and is attempting to partner with other agencies to combine aviation resources as a way to improve transportation to rural Alaska.[73]

Attempts have also been made to bridge the cultural division between law enforcement entities and the communities they serve. For example, the chief of the Anchorage Police Department serves as the lead instructor on cultural awareness in the city's police academy. The police department also instituted its first citizen's academy, which informs the public about how the department operates.[74] The chief also has plans to create a community-policing unit to handle 22 designated beats. The officers responsibilities will be to attend community meetings, visit schools, and talk to business owners and residents. While there will be other officers assigned to those beats, the designated community officer will be the person assigned as the contact person for community residents.[75]

Additionally, the Anchorage Equal Rights Commission sponsors a Minority Community Police Relations Task Force made up of representatives from the Anchorage Police Department, the Alaska State Troopers, the Immigration and Naturalization Service, and the FBI. The purpose of the task force is to investigate and mediate complaints against law enforcement agencies involving allegations of police brutality and harassment.[76] This board reviews, on average, five to six complaints per year.

Finally, the special relationship Alaska Natives have with the federal government gives them jurisdiction over many of their own affairs. Currently, however, a relatively narrow range of legal matters can be handled at the tribal level. Those are limited to children's matters, domestic violence, other domestic relations, and other matters linked to core tribal relationships.[77] Many legal experts agree that tribal courts should be used more extensively as a cost-effective means of reducing state and federal court costs, while at the same time allowing tribal members to be more involved with the law and legal process. However, there has been relatively little done at the state level to expand tribal justice programs or to provide necessary funding.[78] Native Alaskan advocates hold out hope that the Millennium Agreement will renew the willingness of the state to work with tribal courts.[79]