Excerpted From: Nasrin Camilla Akbari, The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform, 98 New York University Law Review 198 (April, 2023) (234 Footnotes) (Full Document)


NasrinCamillaAkbari“[T]here is no greater inequality than the equal treatment of unequals.” --Justice Felix Frankfurter, 1950

In the American criminal justice system, individuals from marginalized communities routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peoples. Despite making up less than 1% of the total U.S. population, Natives account for over 2% of all federally incarcerated people. While this discrepancy may in part be due to the jurisdictional complexities surrounding criminal jurisdiction over Native peoples, state-level incarceration rates indicate that additional factors are at play. For example, in Montana, Natives make up approximately 6% of the state population but account for 20% of the men's state prison population and 34% of the women's state prison population. Similarly, in North Dakota, Natives comprise 5% of the total state population, but account for a staggering 29% of all incarcerated individuals.

Native peoples are also overrepresented in comparison to other ethnic groups. Across all federal and state correctional authorities, Native peoples experience a higher incarceration rate than that of white, Hispanic, and Asian populations. Additionally, Native men are four times more likely than white men to be sentenced to prison; this discrepancy is even higher for Native women. Compared to other ethnicities, Native peoples are also routinely subject to longer and harsher sentences. They are thus not merely overrepresented within the criminal justice system, but subject to unique sentencing disparities. The reasons behind these issues are complex. Traditional drivers of criminal behavior play a role, including low socioeconomic status and access barriers to education, employment, and housing, which particularly afflict Native communities. Yet additional factors contributing to the overincarceration of Native peoples, such as overt discrimination within the legal system itself, speak to a systemic issue at play: the enduring legacy of colonialism. While colonialism is often implicated in debates concerning tribal sovereignty and land appropriation, its continued effect on the overincarceration of Native peoples is far less obvious.

The devastating consequences of colonialism on Indigenous peoples extend beyond the borders of the United States. As nations have grappled with the persistence of colonial structures, practices, and beliefs, some have attempted to remedy these effects at the sentencing stage. In particular, over the past twenty years, the Canadian criminal justice system has implemented a unique, remedial sentencing approach for Aboriginal people: the Gladue approach. Statutorily grounded in section 718.2(e) of the Canadian Criminal Code, this approach directs judges at the sentencing stage to consider “[t]he unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts” as well as “[t]he types of sentencing procedures and sanctions which may be appropriate ... because of [the offender's] particular [A]boriginal heritage or connection.” It thus imposes duties on both counsel and courts: Counsel is required to provide the case-specific information necessary for the court to undertake the two-pronged Gladue analysis at sentencing, while courts are bound to undertake such an analysis absent an Aboriginal individual waiving their right to such a process. Although the approach is not without flaws, it remains a powerful reform that enables courts to consider individualized and contextualized accounts of historical injustices in shaping sentences.

This Note considers the potential normative and legal implications of applying a Gladue approach to the sentencing of Native peoples within the United States. Part I reviews the development of the Canadian Gladue approach over the past twenty years. It builds on a growing body of literature analyzing this approach to inform its potential transplantation to the American legal system. Part II analyzes the overincarceration of Native peoples across the federal and state domains. By applying both an empirical and historical perspective, it uncovers a close connection between this issue and America's enduring legacy of colonialism. Part III presents two potential legal pathways for implementing the Gladue approach within the United States: amending the federal sentencing guidelines and pursuing congressional action. In so doing, it addresses potential constitutional issues regarding state sovereignty concerns and equal protection guarantees. Furthermore, it considers the practical impediments to both approaches. Crucially, this Note does not seek to discount efforts to recognize tribal sovereignty, repatriate Native lands, or expand the scope of tribal jurisdiction. Rather, it provides an additional method by which the United States may begin to address the ongoing impact of the settler-colonial state on Native communities.

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The overincarceration of Native peoples in the United States is a devastating issue that too often goes unnoticed. Beyond public attention, tangible reforms are needed in this area--ones which not only aim to reduce disproportionate incarceration rates and sentence lengths for Native peoples but also confront the colonial underpinnings of America's past and present. Despite its shortcomings in implementation, the Gladue approach remains a powerful tool by which to undertake this task. The United States legal system, just like its Canadian counterpart, has failed to account for the unique needs, experiences, and circumstances of Indigenous individuals. By applying an individualized and contextualized approach to sentencing, which prioritizes community-based alternatives to incarceration and emphasizes restorative justice, it can begin to remedy these wrongs. At the same time, any effort to implement the Gladue approach should be driven by the voices of those whom it governs: Consultations with Native Nations and Native communities must inform its content, structure, and very existence. In the interim, this Note offers two legal pathways by which to implement the Gladue approach that conform with the existing American constitutional structure. While the federal sentencing guidelines may be jurisdictionally limited in reach, they have the potential to bring about change in the criminal justice system broadly--perhaps one that does not stop at the injustices experienced by Native peoples. Additionally, while congressional action requires significant political will, it also holds significant promise. Congress has historically exercised its plenary power to the detriment of Native Nations and people in the criminal context. It is time for a new direction on the path to justice--the Gladue approach may be the first step.

Nasrin Camilla Akbari. J.D., 2022, New York University School of Law; B.A., 2018, Johns Hopkins University.