For Utah's Indians, the only thing harsher than the craggy rock on their reservations is the law; the only thing more bleak than their land is the hope for mercy in a federal courtroom.
While Utahns debate the pros and cons of the state minimum-mandatory sentences for child sexual abuse and other crimes, a cruel inequity goes unnoticed: Indians serve prison sentences four or five times stiffer than do non-Indians for the same crimes.The federal government moved in 1987 to the use of sentencing guidelines that specify a range of months a defendant must spend in prison when convicted of any crime.
Like Utah's minimum-mandatory laws, the sentencing guidelines give judges little leeway in sentencing a criminal.
But under the guidelines, a criminal's sentence is determined by more than just the crime. It's also determined by an array of other factors such as whether he has a previous criminal record or used a weapon in the crime, the vulnerability of his victim and whether he pleads guilty or stands trial.
In sexual abuse cases, sentences are also determined by how many instances of abuse there were, the offender's relationship to the victim, the age of the child and whether or not the criminal had been convicted of a similar crime before.
If he had a previous sexual abuse conviction, even on the state level, his recommended sentence is automatically doubled.
For each instance of documented sexual abuse, the sentence increases.
For example, a father with no criminal record who sexually abuses a daughter over the age of 12 half a dozen times and later pleads guilty must serve between 188 and 235 months in prison - a minimum of 15.5 years behind bars.
If he refuses to plead guilty, opting to stand trial instead, and he is convicted, his minimum sentence rises to 21.8 years with a maximum penalty of 27.2 years.
A judge's only decision: what sentence to impose between 21.8 and 27.2 years.
If this is the father's second conviction, he could be sent away for almost 50 years.
By contrast, Utah's sentences are a slap on the wrist. "A man who gets 78 months minimum in the federal system, under the state's (laws) wouldn't have to do any time," said Assistant U.S. Attorney Richard Lambert. "In the state, only the most serious sexual offenders are getting minimum-mandatory sentences and even some of them aren't."
Because the federal government has jurisdiction over Indian reservations and military bases, the harsh federal laws hit Indians hard. Almost all the sexual abuse cases prosecuted in Utah's federal courts are against Indians. Although the courts also have jurisdiction over civilians on military bases, they are rarely prosecuted federally for child sexual abuse.
Bishop Black, an Indian charged with abusing Indian children, was sentenced last year to more than 25 years in a federal prison for sexually abusing a boy on several occasions. Abe Lehi, another Indian, is 32 years old. He will likely die in prison. In 1993, U.S. District Judge Aldon Anderson sentenced him to 60 years in prison for abusing and sodomizing several boys between the ages of 11 and 17.
That particular sentence belies the belief that without minimum-mandatory sentences or sentencing guidelines, judges would impose light sentences.
The federal sentencing guidelines mandated a 30-year sentence for Lehi. But because he committed one of his offenses before the guidelines took effect, Anderson had complete discretion in sentencing Lehi on that one count. Anderson slapped on another 30 years for that offense, sending the man away until he's 90 years old.
In considering minimum-mandatory sentences, Utah could learn from the federal judges' frustration over federal minimum-mandatory sentences for drugs and weapons offenses.
Like Utah's current laws for sexual abuse cases, the federal minimum-mandatory laws take no factors into consideration. You commit the crime, you serve the time.
"I have seen so many real injustices occur" because of minimum-mandatory sentences, said U.S. District Judge J. Thomas Greene.
Senior U.S. District Judge Bruce Jenkins agreed in an earlier interview. Both judges say they are troubled when the law requires them to impose sentences they believe are much too severe for particular cases.
"It's very frustrating and unfortunate," Greene said.
Jenkins recalled a case that still haunts him: A religious father of three decided to rob a bank to support his family.
He had a word of prayer before going to the bank, asking God to intervene if the robbery wasn't right.
A higher force, or at least law enforcement, intervened and the man eventually appeared before Jenkins for sentencing. He had never committed a crime before, he was remorseful and the sole support of his family. His wife was pregnant, Jenkins recalled.
Jenkins wanted to put the man on probation.
But because the man had a gun in his pocket when he tried to rob the bank, Jenkins was forced to sentence him to a minimum-mandatory five years in prison.
The mother went on welfare and the infant was born without its father.
Crowded federal prisons, an aging prison population and unhappy federal judges across the country are prompting the federal government to take a second look at long mandatory sentences, Greene said.
The Federal Judicial Center, the educational arm of the federal courts, has urged the elimination of minimum-mandatory sentences in almost all cases.