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Excerpted from: Bette Jacobs, Mehgan Gallagher and Nicole Heydt, At the Intersection of Health and Justice: How the Health of American Indians and Alaska Natives Is Disproportionately Affected by Disparities in the Criminal Justice System, 6 Belmont Law Review 41 (2018) (280 Footnotes) (Full Document)

AI/AN health indicators demonstrate dramatically high rates of mortality, morbidity, and burden of disease. AI/AN life expectancy is 5.5 years less than the average American. Homicide and suicide pose serious threats. Other violent and nonviolent crimes are just as troubling for families and communities. Many factors contribute to high incidences of death and disease among AI/ANs, including poverty, limited access to services, and generally low educational achievement. In addition to AI/ANs suffering from lower health generally than the rest of the population, the interplay between federal, state, and tribal criminal jurisdiction in Indian country has created an environment where AI/ANs are subject to harsher sentences and exposed to double jeopardy, increasing their likelihood of incarceration as well as the length of their average prison stays

The purpose of this paper is to examine how disparities in the criminal justice system disproportionately impact the health of AI/ANs, and how health-- particularly mental health--can affect the likelihood of incarceration. The authors visited Pine Ridge Reservation in South Dakota, home of the Oglala Lakota Sioux tribe, to speak with representatives from Indian Health Services (IHS), the Pine Ridge Court Administrator from the Community Justice Center, and local educators. The authors interviewed an attorney for the Indian Law Practice Group at Montana Legal Services Association about the obstacles and hurdles of working with AI/ANs in the criminal justice system. In addition, the authors spoke to the CEO of the Montana Healthcare Foundation, an organization that works directly with tribal directors in Montana to improve the health of AI/ANs

There has been a long history of mistreatment of AI/ANs by the United States government, which has had long lasting impacts. “The gradual process of the United States' domination of Native nations led to profound social disruptions that still plague Native communities in the forms of poverty, substance and alcohol abuse, disproportionately high health problems, substandard education and healthcare.” Proportionately the AI/AN population has higher rates of poverty, death, and disease and higher incarceration rates compared to the rest of the U.S. population. AI/ANs consistently die at higher rates than other Americans from causes such as “chronic liver disease and cirrhosis, diabetes mellitus, unintentional injury, assault/homicide, intentional self-harm/suicide, and chronic lower respiratory diseases.” The suicide rates for AI/ANs have been reported as 3.5 times higher than other minority groups. The long history of mistreatment and discrimination toward AI/ANs has created an environment where it is difficult for the population to flourish

In this paper, the authors expand the current understanding of how disparities in the criminal justice system disproportionately impact the health of AI/ANs by examining how a number of factors and determinants of health are interrelated to influence health outcomes among the population. Understanding how all of these factors influence each other to impact health among AI/ANs has been largely unexplored. The results provide support for the idea that historical land and sovereignty laws and policies designed by the U.S. government, along with disparities in the criminal justice system, have led to negative mental and physical health consequences, including high incidences of death and disease among AI/ANs

[. . .]

AI/ANs face barriers to health that date back centuries. Although the U.S. government has implemented laws, policies, and programs in attempts to improve access to food and health care for AI/ANs, they still suffer some of the worst health disparities in the country, even among minorities. Incidences of NCDs, including CVDs, diabetes, and cancer, are alarmingly high among AI/AN populations. Poverty, low educational levels, high unemployment rates, inadequate and unhealthy housing, geographic isolation, and cultural barriers contribute to poor health among Native communities. Diets that are high in processed red meat by the U.S. government other high fat, low nutrient foods, as well as high rates of tobacco and alcohol use, add to health concerns. Such health disparities exist among AI/ANs living both in urban areas and in and around reservations. However, these disparities are exacerbated for AI/ANs who are or have been incarcerated, where they are exposed to additional communicable and non-communicable diseases, including HIV and hepatitis, as well as physical and emotional abuse all of which can last long after release from detention. This is a public health concern whereas incarceration impacts individuals as well as families and communities

Aside from the underlying health issues that all Americans face in detention, AI/ANs are exposed to additional health issues due to their existing health disparities as well as disparities within the criminal justice system that expose them to longer periods of incarceration--a result of criminal justice policies that essentially subject AI/ANs to double jeopardy, a concept that is unconstitutional for all other Americans

There are many lasting and devastating impacts caused by the U.S. government's failure to budget and pay for tribal correctional health care. Not only does it place additional strain on inadequate tribal health care and corrections budgets, but it also “exacerbates the already challenging problem of health disparities for American Indians, undermines successful inmate re-entry, and contributes to recidivism.” A majority of tribal jails run by the BIA on reservations provide no health services for inmates. This would be considered unconstitutional if it were not on tribal land. Additionally, many BIA jails do not provide addiction services or treatment for inmates. The absence of health services available for AI/ANs both in tribal and other jails makes for deplorable conditions and creates a public health concern, leaving open the possibility to spread infectious diseases to prisoners and prison employees while in detention, as well as to their families and communities when they are released

The findings show significant disparities in the application of criminal justice and health outcomes among AI/ANs compared to other Americans. In particular, issues related to unemployment, substance abuse, and systemic legal disparities are precursors to many cases leading to disability and death. Incarceration affects one's life course and, consequently, one's health. Because AI/ANs are incarcerated at such high rates proportionally than any other ethnic/racial group in the U.S., the health consequences for individuals suggest the need for a more focused and engaged prevention and support strategy

Bette Jacobs, PhD, Professor & Distinguished Scholar, Georgetown University School of Nursing & Health Studies

Mehgan Gallagher, Esq., Law Fellow, O'Neill Institute for National and Global Health Law

Nicole Heydt, Consultant, Prometheus Federal Services


Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law