Montana Indians are incarcerated at far greater rates
than non-Indians; prison officials want to know why
Prague 2007: Common Ground
In 1962, Lester Killsontop was born on the impoverished Northern Cheyenne Indian reservation in southeast Montana, but he didn’t stay there long. His parents were alcoholics, Lester says, and they used alcohol to put him to sleep from the time he was five years old. When he was 13, Lester and his siblings were sent to separate out-of-state homes for foster care by the government. Killsontop went to Washington State, but came home in the summers. He never lived with a foster care provider for more than nine months, and was 14 when he quit going to school.
Lester Killsontop eventually moved back to Montana. In 1988, Lester and his brother, Vern Killsontop, were sentenced to death for the kidnap and murder of a white man. Lester says his public defender was incompetent and the all-white jury biased. Prisoners are notorious for finding others to blame, but in this case the State Supreme Court lent some credibility to the claim. The court overturned the death sentences for both brothers after finding that mitigating evidence had not been presented at their trials. Both brothers are now serving consecutive life terms in the Montana State Prison in Deer Lodge.
They are among many Indians in the facility. Indians comprise about 6 percent of Montana’s population, but over 18 percent of the state’s prison population. Like Lester Killsontop, many came from a background full of poverty and alcohol. Like Killsontop, many also say Montana’s criminal justice system is partly to blame. Some people outside the walls agree.
“To me it raises real red flags that such a disproportionate number of Indians are incarcerated,” said Carol Juneau, a Montana state senator from Browning. “I would suspect that a lot of it is due to inadequate representation in court.”
But proof is hard to come by. Despite repeated efforts by Juneau and others, the state legislature has never given funding to a study that would attempt to determine if bias exists in the justice system. In the 2005 legislative session, such a study was approved, but was deemed a low priority and never carried out in the 2007 session, another proposal died in committee.
The problem is that a serious attempt to determine institutional discrimination would be costly and complicated, said Sheri Heffelfinger, a research analyst in the Legislative Services Division. Every criminal case involves dozens of variables, including the severity of the crime, the alleged criminal's prior offenses and his or her financial resources.
To determine whether race was a deciding factor would be painstaking; Heffelfinger estimated in a report that it would cost $250,000 TO $600,000, or “possibly much more.” And it could ultimately prove pointless, she said.
“The result would be that you would take steps to mitigate (bias). Why not take the steps to mitigate it now instead of trying to do a five-year or 10-year study and ending up at the same place?” she said.
“People want to prove that discrimination is taking place, but I’m not sure numbers are ever going to prove or disprove discrimination … there’s just too many variables.”
An analysis by the Montana Department of Corrections of 28,000 sentences handed down over the past 11 years did show some disparities in the sentencing of Indians verses that of non-Indians.
Non-Indians were more likely than Indian offenders to receive a lenient sentence — a deferred or suspended term — for the same crime, according to the review. On the other hand, they found Indian offenders were more likely than non-Indians to receive terms with a part of the sentence suspended.
Additionally, non-Indians were more likely to receive significantly longer sentences than Indian offenders for the same crime, but in cases where Indians did receive longer sentences, they were dramatically longer, according to the report.
The significance of those differences is hard to interpret, said Bob Anez, communications director for the Montana corrections system. The report did conclude whether the differences were based on race to the exclusion of other factors, he said.
Though studies may not be able to prove bias, a Missoula judge says he has seen unfair treatment in the justice system.
“I know for a fact that some police departments engage in racial profiling,” said District Judge Dusty Deschamps.
A bill passed in the last legislative session aims to put an end to that. The bill, introduced by Jonathan Windy Boy (D- Box Elder), requires every police department to record the race of each person its officers stop to determine if there is a pattern of targeting minorities.
But injustice can go both ways. Records of misdemeanor crimes that an Indian commits on a reservation typically are not available to judges and prosecutors off the reservation. A judge may give a light sentence to an Indian who appears to have no criminal record, but in fact has a lengthy rap sheet on the reservation, Deschamps said.
Deschamps previously worked as a prosecutor on the Flathead Reservation, and will call officials there if he suspects someone appearing before him has committed crimes on that reservation, he said. Other reservations, however, aren’t always so cooperative, he said.
“With some of these reservations, it’s like beating your head against a wall,” he said.
Even if no intentional bias exists in any part of Montana’s justice system, its style and complexity might be contributing to the high numbers of Indians in prison, said Mike Ferriter, director on the Montana Department of Corrections.
“The problem we’ve discovered is that many Natives who come into the system — a white justice system — are so intimidated, so set back by the rules and regulations, that perhaps they don’t get the right type of communication or the right assistance they need,” Ferriter said.
Indians may plead guilty because they don’t feel like they have any other option or settle for a lawyer with whom they are uncomfortable, he said.
To try to bridge the gap between cultures, the DOC secured a federal grant to establish a new position on a trial basis. For about 10 months, Myrna Kuka has been Montana’s first and only Native Cultural Officer. Working out of Great Falls, Kuka covers a broad swath of northern Montana, helping Indians accused of crimes to navigate the tricky waters of the court system.
Kuka also works with prosecutors to try to find alternatives to prison for Indians. So far, she has helped about 25 percent of the defendants avoid prison. Instead, they may be placed on probation or in pre-release centers, saving taxpayers money and keeping families together.
Until recently, an inadequate public defender system in Montana has also put the state’s poorer defendants – a category that includes many Indians – at a distinct disadvantage. Because public defenders have traditionally been paid much less than private attorneys, most public defenders were inexperienced or unmotivated, said Judge Deschamps.
Increased funding and organizational restructuring have improved the system in recent years, but Senator Juneau still encourages her constituents to get a private attorney if the need arises.
“My advice is to get the best attorney you can,” she said. “People tell me they have no money. I tell them there are public defenders, but if they can sell something or find some money somehow, they should.”
The DOC has also received funding to significantly increase its staff of parole and probation officers, Ferriter said, which should make it possible to monitor more offenders in the community rather than inside the crowded prisons.
“We think (the community) is the best place to serve offenders,” Ferriter said. “If appropriately managed, that’s the safest place for a lot of offenders, and certainly from a resource standpoint that’s important.”It costs about $4 per day to monitor an offender on probation, compared to about $70 per day to house an inmate, he said.
Injustice, meanwhile, remains unquantifiable. But there is evidence that it is taking at least some toll on Montana’s Native population. The problem is not new, and solutions remain elusive.
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