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Are feds too tough? Or is New Mexico too soft?

Copyright © 2016 Albuquerque Journal

Gerald James Viarrial, accused of threatening his family with a handgun, was convicted last month in U.S. District Court in Santa Fe on assault and firearm charges.

Viarrial, 53, a member of Pojoaque Pueblo, was charged in federal court because the crimes occurred on the pueblo, and the U.S. government prosecutes felonies in Indian Country in New Mexico and other states under the federal Major Crimes Act.

VIARRIAL: Faces much higher federal sentence

VIARRIAL: Faces much higher federal sentence

Now, he faces a mandatory minimum sentence of seven years in prison for use of a firearm during a violent crime and up to 40 years on top of that for the assault charges.

Had Viarrial been convicted in state court, he would be facing a mandatory minimum sentence of one year on the firearm charge and no more than six years on the assault charges.

Criminal penalties under federal law are often more severe than those under state laws for the same offenses, and Viarrial’s case is an example of how Native Americans can be imprisoned longer than those who are convicted of similar offenses in state courts.a00_jd_24jan_sentencebox

Viarrial’s attorney, Todd Hotchkiss, declined comment on the case because sentencing is pending, but he says Indian offenders in general face federal sentences that are “disproportionate and unfair when compared to New Mexico state law.”

The U.S. Supreme Court has found that federal prosecution of Indians isn’t racially discriminatory, because anyone, whether Indian or non-Indian, faces federal prosecution for felonies in Indian Country and on federal lands, such as national parks and military bases.

But Barbara Creel, a University of New Mexico law professor and director of the Southwest Indian Law Clinic, says federal prosecution of Indians for felonies in Indian Country is “completely racial both in its implementation and impact.” No other racially distinct group is treated differently when it comes to criminal prosecution, she says.

Creel compares the harsher penalties for Indians to the disproportionate punishment that blacks received when federal penalties for use of crack cocaine were much more severe than those for powder cocaine.

Roswell Mayor Dennis Kintigh, a former state legislator and FBI agent, agrees there are disparities in sentencing between federal and state courts, but says that, in New Mexico, the disparities are due to weak state laws. One example, he says, is the state sentence for second-degree murder.

A person convicted in state court of second-degree murder faces a sentence of up to 15 years, while federal sentencing guidelines call for a base sentence ranging from nearly 20 years to life.

“We have failed to deal aggressively with violent people,” Kintigh says.

The U.S. Supreme Court has ruled that federal prosecution of Indians for felonies in Indian Country is rooted in their unique status as “a separate people” with their own political institutions and not based on their race.

KINTIGH: Claims N.M.'s state laws are too weak

KINTIGH: Claims N.M.’s state laws are too weak

“They are not singling out Native Americans with those standards,” Kintigh says.

Federal jurisdiction

In the 2014 federal fiscal year, 105 cases involved Indian offenders in federal courts in New Mexico and 1,316 nationwide.

The U.S. government also brings criminal charges for activities, such as drug dealing, that don’t occur on Indian and federal lands, but those cases generally involve a federal interest.

In addition to harsher sentences, the federal criminal justice system can be tougher on defendants awaiting trial. Federal defendants can be held without bail pending trial, while nearly all defendants in New Mexico state courts are entitled to bail. Two accused killers of Albuquerque-area police officers are being held without bail on federal charges, ensuring they won’t be released on bail in the state system.

Last year, the U.S. Sentencing Commission, which sets guidelines for federal judges, created the Tribal Issues Advisory Group to examine whether there are disparities between the sentences that Indians receive in federal courts and the sentences of similarly situated offenders in state courts. The advisory group is analyzing sentencing data from Minnesota, North Dakota, Oregon and South Dakota.

Creel is a member of the advisory group, as is fellow UNM law professor Kevin Washburn, who recently stepped down as head of the U.S. Bureau of Indian Affairs, and is a former federal prosecutor and UNM law school dean.

Washburn adds another wrinkle, saying an Indian defendant sometimes gets a break in the federal system because federal sentencing guidelines do not routinely take into account tribal court convictions. In general, tribal courts handle misdemeanors.

Washburn says: “The example is this: If you consider a non-Indian who has a long criminal history in state courts in his community, say, for assault, his offenses will add ‘points’ to his criminal history and lengthen the presumptive sentence … . A tribal offender with a long criminal history for assaults in the tribal court in his community may well be treated as a first-time offender in federal court.”

The Tribal Issues Advisory Group is examining whether federal sentencing guidelines should be changed to better account for a defendant’s frequency and severity of tribal court convictions.

Other members of the advisory group include federal judges, an appointee from the Justice Department, a federal public defender and tribal representatives. It is to make its final report to the commission no later than May 16.

Previous study

The advisory group is the second panel created by the Sentencing Commission to examine whether sentencing guidelines are unfair to Indians and to propose ways to address any unfairness.

As part of its work, the first advisory group studied sentencing data for New Mexico and South Dakota, and reported in 2003 that Indians convicted in federal courts on assault charges faced significantly longer sentences. The panel found that the average sentence for an Indian convicted of assault in New Mexico state courts was six months, compared to 54 months for an Indian convicted in federal court.

The advisory group recommended that the Sentencing Commission amend its guidelines for judges by reducing the base offense level for assault, bringing sentences in federal court more in line with those in state courts. The commission later decreased the base offense level for aggravated assault.

But the Sentencing Commission also increased the base offense level for vehicular manslaughter involving alcohol or drugs, a move supported by the advisory group to address the problem of drunken driving in Indian Country.

The Native American Issues Subcommittee and the Racial Disparities Working Group at the U.S. Justice Department supported the formation of the new Tribal Issues Advisory Group. In a letter to the commission, federal prosecutors wrote:

“Since the release of the Advisory Group’s 2003 Report, the issue of possible disparities between the sentences received by American Indians prosecuted in federal courts under the Major Crimes Act and the sentences received for similar crimes by non-Indians in state court has remained the subject of debate.

“Additionally … the concern regarding potential disparities in the sentencing of American Indian defendants in federal court has expanded to include the additional issue that American Indian defendants may experience disparate sentences when compared to defendants of other races within the federal sentencing system itself.”

Creel says the challenges of the new advisory group include obtaining federal sentencing data from the Sentencing Commission and comparing that to state sentences.

“It’s not apples to apples,” she says. “The general theory is that federal sentencing is harsher. That’s what we are trying to figure out.”

Judge’s concern

M. Christina Armijo, chief judge of the U.S. District Court for New Mexico, says that, during her 14 years on the bench, she has been concerned a few times about the harshness of federal sentencing guidelines in cases involving Indians.

Armijo says she supports the work of the Tribal Issues Advisory Group and, “Perhaps, we will see some changes set out in the guidelines.”

While the Sentencing Commission can amend sentencing guidelines for judges, it can do nothing about mandatory minimum sentences set by Congress, such as the one that Viarrial faces for use of a firearm during a violent crime. Viarrial will have to serve the sentence on the firearm charge before beginning his sentences for the assault convictions.

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