Wabanaki Legal News, January 2007 edition
by J. Peter Sabonis, Esq.;
A 16 year old Glenburn boy takes a gun from his grandparents, goes on an 8 day spree of burglaries and vehicle thefts over four counties, assaults an adult with an ax, and sets off a massive manhunt which prompts fearful school officials to close four schools. The boy is found, arrested and charged with 31 criminal counts. If tried as an adult, the boy would face up to 30 years in prison on one charge alone. After the youth's psychological evaluation indicates he would benefit from rehabilitation at Mountain View Correctional Facility, the State of Maine decides not to try him as an adult. He gets 2 ½ years in Mountain View.
A 16 year old Indian Island boy takes a gun and, with a group of colleagues, forces his way into a Bangor drug dealer's residence and demands, at gun point, the occupants hand over "drugs and money." The gun is not loaded. The police respond to a 911 call and burst through the door, catching the Island youth, but not his accomplices. He is charged with three crimes. If tried as an adult, the boy faces up to 30 years in prison on one charge alone. After the youth's psychological evaluation indicates he would benefit from rehabilitation at Mountain View Correctional Facility, the State of Maine decides nevertheless to charge him as an adult.
Why the different treatment? Is it because the Indian Island child is Native? When I raised this to the Penobscot County Assistant District Attorney, who made the decision to treat the Native child differently, he called it a "cheap shot."
I think not. A cheap shot is something that is unnecessarily aggressive or beyond the bounds of fair play. Calling public officials' attention to different treatment that has racial implications is important and necessary. Freedom from discrimination is a fundamental right under the U.S. Constitution. Further, there is a fundamental notion that the State will treat like crimes alike. Ah, but there's the rub. These are not like crimes, says the Assistant District Attorney. The Native child had threatened others with a gun drawn (but not loaded), and the arresting officers were braced for a shoot-out that may have produced fatalities. The seriousness of this crime alone requires the State to put the Indian child in Adult prison.
I disagree. But even if I were to agree with the Assistant District Attorney, just for the sake of argument, the different treatment of the two youths raises the specter of another, more insidious, form of discrimination: institutional. Let me explain.
Institutional discrimination or racism is a form of discrimination that's simply built into the system. The Indian Claims Settlement Act, regardless of its intent, has produced two different systems of juvenile justice in this state: one for Native kids, and another for non-Native.
Native youth who commit misdemeanor offenses on Reservations are tried, with a few exceptions, in Tribal Court. A felony offense, even on the reservation, is tried in State Court. This is the law under the Settlement Act. Most youth who have criminal problems, Native and Non-Native, fall into a typical pattern: Problems in school (oftentimes due to undiagnosed special needs or family issues), disinterest in school, association with others who are disinterested in school, risk-taking behavior, involvement with the law on minor charges, increased risk taking behavior and criminal involvement, and then major criminal involvement. The Settlement Act guarantees that a Penobscot youth who follows this path will enter the State system with a splash -- a felony.
But what came before the splash for a Penobscot youth is different than for a youth off the Island. A youth off the Island who gets involved with the police on minor, misdemeanor infractions, will get some service interventions in an attempt to prevent this pattern of increasingly more serious criminal behavior. The Island youth will not. Why? Because of the different level of resources committed to the two systems.
Let's take a typical example involving the two 16 year olds at the start of this article. Let's say each was arrested at 15, with criminal trespassing charges and each was found possessing alcohol or having consumed it at the time of arrest. The non-Native child will be assigned a Juvenile Community Corrections Officer (JCCO) from the state Department of Corrections, who will interview and evaluate the youth. This evaluation will use tests to determine the youth's substance abuse involvement (known as a JASAE) and/or his mental health (MASAE). Should these evaluations show the non-Native youth to be "at risk" for further substance abuse, the JCCO may direct the youth to a treatment program and recommend that it be court-ordered. Alternatively, should the youth show significant family problems that leave him unsupervised, the JCCO may explore involvement by DHHS, and again, recommend it be court-ordered. While this may not deter the youth from further criminal involvement, there is an attempt to get at the root of the problem.
The Penobscot youth tried in the Tribal Court system will not get any of this. The system, as it is currently funded and configured, employs a "part-time" Juvenile intake officer who doubles as Tribal Court Director. No JASAE or MASAE is used to evaluate the youth, no significant substance abuse treatment targeted for youth exists on the Island, and DHHS is not court-ordered into situations where lack-of-supervision is the sole issue. Until recently, most agencies would not even supervise Tribal youth, so they did not even have the option of community service. Sure, families with troubled youth on the Island may get directed to Wabanaki Mental Health Ass'n or WINGs, but these programs provide case management (coordination of referrals), not services; and these referrals are rarely initiated by the Tribal juvenile justice system.
So the Indian Island youth and the Glenburn youth most likely will have different service-intervention histories by the time they stand before a State judge facing felony charges. For the Glenburn youth, the court appearance is, most likely, another step in a series of repeated vain attempts to help the youth through treatment, counseling, and other services. For the Indian Island youth, the court appearance is his first step into the State system after a downward spiral uninterrupted by interventions or services.
Into this system steps an Assistant District Attorney who wants to portray himself as tough on crime and thinks that pointing a gun is far more serious than carrying one, and who thinks that scaring police officers is far more serious than scaring school systems. And so he decides the Indian Island youth deserves to be tried as an adult, but not the Glenburn youth. The Assistant District Attorney, given the benefit of the doubt, is color blind. The system that produced each child, however, is not.
J. Peter Sabonis is an attorney with KIDS Legal, a project of Pine Tree Legal Assistance. KIDS provides free legal representation for Tribal youth charged with offenses in Tribal and State courts, and represents parents of Tribal children in Special Education cases.