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Alaska Justice Statistical Analysis Center |
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Rachel King
While Alaska Natives are only
16 per cent of the overall population of the state and only 12
per cent of the adult population, Alaska Department of Corrections
statistics indicate that approximately 34 per cent of the current
population in Alaska prisons is Alaska Native.
This article focuses on several structural aspects of the criminal
justice system in rural Alaska which may contribute to this overrepresentation
of Alaska Natives in the state’s prisons. While some of
the problems identified can involve non-Natives as well as Natives,
this discussion focuses primarily on the situation of rural Alaska
Natives.
In writing the article, I have
drawn upon my work as an assistant public defender and upon additional
research. From 1991 to 1994, I represented indigent clients in
the jurisdictions of Ketchikan, Kodiak and Kotzebue. Each of
these areas is populated by different Alaska Native groups: Tlingit,
Haida and Tsimshian Indians in Ketchikan; Alutiiq in Kodiak;
and Inupiat in Kotzebue. During my three years of work, I kept
a detailed journal of my experiences in these communities. Quotations
from this journal are presented in italics.
Attorney-Client Relationship
Vast distances separate clients in rural Alaska and the few attorneys available to represent them. In more remote parts of the state, transportation and communication systems resemble those in developing countries; power outages, poor equipment and bad weather often interfere with communication.
Southeast Alaska
I served three islands in Southeast Alaska while working out of the Ketchikan office—Revillagigedo Island, where Ketchikan is located; Prince of Wales Island; and Annette Island, where Metlakatla is located. Travel between islands was by ferry, plane or charter boat. Once a month I caught a float plane, or put my car on the ferry, and traveled to Craig, which is the court seat for Prince of Wales Island. Unless they traveled to see me, this monthly visit was the only chance I had to meet with clients in person. The extent of my caseload made more frequent travel impractical.
The history of my first jury
trial exemplifies some of the problems of representing clients
in Southeast Alaska. The client lived in Whale Pass on Prince
of Wales Island. The only telephone in Whale Pass was at the
general store—a place of little privacy. Pretrial communication
with my client was limited to writing and the one visit which
she made to Ketchikan. To investigate the case before trial,
I traveled by ferry from Ketchikan to Prince of Wales Island,
a journey of several hours. I left Saturday morning; trial was
scheduled for Tuesday. On Prince of Wales Island, I drove one
and a half hours from a paved road to a logging road. From the
end of the pavement to Whale Pass, a distance of about 125 miles,
the drive took nearly four hours. I arrived in Whale Pass around
8:00 PM, about twelve hours after boarding the ferry.
Because Whale Pass had no public
accommodations, I slept on the floor of the laundromat, which
was actually the back room of a store selling convenience items
like cigarettes, coke, potato chips and frozen burritos. The
store owner carried me in his boat from where the road ended
to my client’s home at the end of the point. Her log cabin
lacked a telephone as well as indoor plumbing and electricity.
She was charged with theft and
criminal trespass; it was alleged that she had taken some gasoline
from her neighbor. To prepare the defense, I needed to examine
the property boundaries between her cabin and the neighbor’s
property and to question the townspeople about the character
of the complaining witness. My investigation helped me to impeach
the witness during cross-examination. The jury acquitted my client,
but without the trip to Whale Pass, the result might have been
otherwise.
While not all villages on Prince
of Wales Island are as remote as Whale Pass, it is common for
residents, both there and on Annette Island, to lack telephones.
If clients could afford to come to Ketchikan by plane or boat,
we met in my office. Often, however, because they could not afford
plane fare, we met right before the court date—or not at
all.
Clients arrested or charged during
a time not corresponding with the traveling calendar appeared
in court by themselves. There were no private attorneys practicing
on Prince of Wales. If a client specifically requested to speak
to an attorney, the magistrate for the district court called
to inform me that I had been appointed to a new case. It was
not unusual for me to receive a phone call from the magistrate
asking me if I could take part in a telephonic proceeding already
in progress.
Because I did not live in the
community where the court was located, it was common for clients
to seek advice about their cases from the district court magistrate
or the local police. The magistrate, an attorney, usually responded
to questions from defendants with the advice to call me. Local
police officers, however, were not always as meticulous about
protecting the rights of defendants and on more than one occasion
spoke with an individual in violation of the right to counsel.
Kodiak
Similar geographic characteristics exist on Kodiak Island, but the Kodiak public defender’s office handled only the one island rather than three islands. The four Native villages on the island were accessible only by boat or plane, and the same pretrial communication problems existed. Financial and time constraints made it difficult for me to visit my clients and, as in the Southeast villages, many clients lacked telephones.
Because the holding facility—two
small rooms—could only handle a limited number of prisoners,
clients in custody for more than a few days in Kodiak were transported
to Anchorage, several hundred miles away. The Kodiak facility
also lacked a clean, private space for attorneys to meet with
clients.
Because of the difficulties in
transporting clients back and forth, the court held many hearings
telephonically, making it difficult for me to ensure that the
client did not say anything to hurt his case. For example, I
represented one client who was charged with stealing the purse
of an official’s wife and attempting to cash checks on her
account. Although the client had been offered a “deal,”
I believed that the client was being treated more harshly because
of the identity of the victim. When the judge asked the client
questions to determine if he was entering a plea voluntarily,
the client said, “Well, Miss King thinks I’m getting
the shaft.”
What could I say? I did think he was getting the shaft but if I tried to cover up the comment or explain it away my client wouldn’t trust me and if I didn’t explain it away, the prosecutor and the judge won’t trust me.
After my client’s comment, the judge asked me what I thought. I said that I felt that the district attorney’s office was prosecuting the case more aggressively because of the identity of the victim. I also said that the client understood he was not obligated to accept the offer.
Kotzebue
Kotzebue and the Northwest Arctic Borough presented the most extreme geographical problems. I was the only public defender for the entire borough, an area of over 37,000 square miles where communities range in population from over 600 in Selawik to less than 200 in Deering. Kotzebue itself has a population of around 3,000. Although I lived in Kotzebue, where the courthouse is located, many of my clients lived in villages accessible only by boat, plane, snowmachine, or dog team. Again, caseload and time constraints made regular village travel impossible.
Bail
Persons who are incarcerated
before trial seem to have very different outcomes in their cases
than those released awaiting trial. Pretrial detention interferes
with a defendant’s ability to defend himself; it compromises
his ability to work and deprives his family of emotional and
economic support. A detainee is unable to meet as freely with
his attorney and is hindered in his ability to help investigate
his case. Because these factors possibly contribute to an increased
rate of conviction of defendants who are detained pretrial, the
problems surrounding bail and pretrial detention in rural Alaska
are particularly troublesome.
Since most of rural Alaska does
not have jail facilities, clients must be transported out of
their communities if they are arrested and unable to post bail.
This complicates defense preparation. Both Craig on Prince of
Wales Island and Metlakatla have short-term holding facilities.
If defendants are not able to post bail within one or two days
they are transported to Ketchikan, where the jail houses individuals
awaiting trial. As previously mentioned, Kodiak has a temporary
facility that holds defendants for as long as a week. Defendants
unable to post bail within that time frame are transported to
Anchorage, an hour away by plane. Defendants from villages outside
of Kodiak are transported first to Kodiak and then to Anchorage,
two plane rides away from home.
In the Northwest Arctic Borough,
anyone arrested in a village and not released immediately by
a magistrate would be transported to Kotzebue. None of the local
villages has holding facilities. For example, a defendant arrested
in Point Hope would be transported several hundred miles to Kotzebue
for arraignment. Flying from Point Hope to Kotzebue involves
a 45-minute plane flight at a cost of $120. The defendant may
not know anyone in Kotzebue and again, because of the lack of
phones, he may be unable to reach family or friends to ask for
bail money. If the defendant cannot bail out within a couple
of days, he or she is transported to Nome—another one and
a half hour plane ride with a round-trip cost of $300.
In addition to the absence of
support from family and friends, visits with an attorney are
difficult and infrequent if a client is held in a different town.
Once an individual was transported from Kotzebue to Nome, or
from Kodiak to Anchorage, it was very difficult for me to visit.
The demands of my caseload made it possible for me to visit jails
in Nome and Anchorage about once every six weeks.
Communication by telephone is
also complicated. Although clients could call collect regularly,
I was not always in my office to accept the call. Inmates can
also call family and friends collect during specific times, but,
again, these personal contacts may lack regular access to a phone.
The following journal passage
describes my frustration with trying to represent a client from
Deering who was in custody in Kotzebue:
A lot of people here do not have the resources to pay bail and the courts are not inclined to give OR releases [release from jail on one’s own recognizance and promise to appear for future court dates], at least not in cases where someone has an ongoing problem, like M who just got out of jail last week for assaulting his wife and then ends up in jail again on Friday. The court imposed a $1500 cash bail. We have some possible third party custodians. Now B . . . wants him to come home and help take care of the kids. But she was just in court on Thursday seeking a restraining order. She has since dropped her charges and now tomorrow she wants to go to court and ask the judge to let M go home. The judge actually denied her last request to withdraw her restraining order which is fairly unusual. So M probably will not get out of jail, even though he has a fairly good third party custodian but no way to get to his house which is in Deering and so he’ll be stuck here in Kotzebue and then he’ll be transported to Nome and we’ll have to deal with trying to get him out of jail after he has served a long period of time in jail. The jail seems to transport clients really quickly so if I don’t get to them out right away they are off to Nome and then everything is just that much more complicated. [Initials have been changed.]
One particularly difficult
case involved a deaf client from Kiana who was detained in Nome.
He was arrested for sexual abuse of a minor, then transported
from Kiana to Kotzebue. When I could not find a suitable bail
arrangement, he was transported to Nome. I could not call him
in jail, so he had to call me collect using the deaf translator
phone service, hoping that I would happen to be in the office
when he called. For me to visit him in jail cost several hundred
dollars and a full work day.
The seasonal rhythm of work in
rural Alaska also contributes to unusual complexities in the
criminal justice process. Summer is work time in most of rural
Alaska, the time of gathering food for the coming year. Many
clients traveled from their regular homes to fish camps. Even
those that lived in Kotzebue moved to the beaches to be near
the harvesting sites.
In Kodiak and Ketchikan, clients
involved in commercial fishing could be away from land for long
periods of time. Because they felt that it was too difficult
to meet required court appointments and work with an attorney,
clients often chose to plead guilty, do their jail time (or get
it deferred if possible) in order to end the case. This may have
resulted in innocent clients being punished, or the state obtaining
easy convictions which it might not otherwise have gotten if
the clients had been willing to go to trial. Alaska Natives simply
could not afford the time for protracted litigation, especially
with minor misdemeanor cases, so pleading guilty or no-contest
was the easiest, and often the most sensible, solution. Hence,
when I asked my clients if they would like a bail hearing, a
common response was, “I’ll just do my time and get
it over with.”
Court Proceedings
The geographic problems described
often prevented my client and me from being at the same place
for a court proceeding. The judge usually appoints a public defender
at the first court appearance, the arraignment, but Alaska law
requires that defendants appear before a judge or magistrate
within 24 hours of arrest. The conflict between the two rights
in rural Alaska is resolved by holding the hearing within 24
hours and appointing an attorney as soon as possible.
Clients are required to participate
in court proceedings, but this participation may be telephonic.
If a client is detained in a facility located in a different
place from the courthouse, the Department of Corrections arranges
to transport the defendant to the proceeding if possible. However,
transportation is sometimes impossible either because of inclement
weather or a lack of state troopers available to provide transportation.
In addition, clients sometimes requested not to be transported
because they did not want the disruption of being moved back
and forth between facilities. Clients with prison jobs would
lose their positions if transported. Because of all these factors,
it was common for either myself or my client to participate in
a court proceeding telephonically.
The following passage describes
representing a client from Metlakatla at a change of plea hearing.
I never met the client in person.
J pled out to one count of minor in possession (the state dismissed theft 4) for sticking a bottle of Jim Beam inside his coat. He did this while standing at the counter of the liquor store while his wife bought a couple of cases of beer. He says he was playing a joke and didn’t intend to steal it, and besides if he had intended to steal it it would have been a pretty stupid thing for him to do it in such an open and obvious way. But J lives in Metlakatla and he didn’t want to go to trial or come to Ketchikan for court. So he pled out at trial call without ever having consulted with me in person about his case. [Initials have been changed.]
In this case the client might have felt otherwise about taking his case to trial if it had been possible to hold the trial in Metlakatla or if he and I had had regular contact with each other and had established a better relationship.
Jury Selection and Composition
Alaska Administrative Rule 15
requires that juries (both grand and petit) be selected from
those who reside within a 50-mile radius of the courthouse. This
50-mile limitation excludes those who fall outside the radius,
often those living in the smallest Alaska Native villages. Both
the Alaska and United States Supreme Court have interpreted the
fundamental right to a jury of one’s peers as imposing a
vicinage requirement—the right to have a jury include
residents from one’s own village—but this vicinage
requirement is often not met in rural Alaska. For example, the
client from Whale Pass discussed earlier did not have anyone
from her community in the jury pool for her trial in Craig because
Whale Pass lies more than 50 miles from the court. Similarly,
clients from Point Hope would not have anyone from their community
in the jury pool for a trial in Kotzebue.
The exclusion of residents of
rural villages is particularly noticeable when the trial is held
in towns such as Ketchikan, Craig or Kodiak where the majority
population is white. Natives from rural villages are tried by
people from larger urban areas who, in all likelihood, are white.
(In Kotzebue, the majority population is Inupiat, so even if
people from the defendant’s village do not sit on his jury,
there will likely still be Inupiat on the jury).
I discovered a particularly noteworthy
example of juror exclusion while practicing in Ketchikan. While
representing a young Tsimshian Indian from Metlakatla, I learned
that the court in Ketchikan systematically excluded residents
of Annette Island from serving on juries on the basis of the
unpredictability of weather in Southeast Alaska, which often
made travel difficult or impossible. After I filed a motion challenging
the constitutionality of this exclusion, the Superior Court judge,
himself unaware of the practice, changed the selection process
by administrative order. No one knew how long the practice had
been in effect.
In addition, during the period
I worked in the Southeast, the Superior Court usually held major
felony trials for all three of the islands in Ketchikan. The
jury pool for Ketchikan trials was drawn only from Revillagigedo
Island, where Ketchikan is located (and, after the judge changed
the practice, Annette Island). Defendants from Prince of Wales
Island would not have persons from their communities on the jury
because of the 50-mile radius rule. This practice had implications
for Haida clients because the largest Haida community in the
Southeast—Hydaburg—is located on Prince of Wales Island.
The majority Alaska Native population on the island of Ketchikan
is Tlingit. Thus, an Alaska Native client from Hydaburg was likely
to get a predominantly white jury (because the majority population
in Ketchikan is white) and, to the extent that Alaska Natives
served on the jury, they were more likely to be Tlingit than
Haida.
Probation and Parole
Many of the problems in complying
with pretrial conditions also affect individuals on probation
and parole. The probation conditions which judges typically impose
can be difficult for rural Alaskans to meet because they involve
attending treatment programs that do not exist in the bush. This
means that offenders from rural communities are obliged to remain
in urban areas during probation or parole and, thus, they are
removed from their support systems and possibly more likely to
fail. Most villages do not have resident probation officers,
also probably contributing to a higher failure rate.
The experience of an older Alutiiq
man from the village of Karluk exemplified the difficulty that
some villagers have complying with probation conditions. This
client was initially charged with a felony for chasing his nephew
with a knife. The state reduced the charge to a misdemeanor in
exchange for his no-contest plea, and the judge sentenced him
to probation, allowing credit for time served in jail, with the
condition that he seek alcohol treatment.
The alcohol treatment screening
involved a two-part procedure that the defendant had to do in
person, rather than over the phone. The screening took place
on two consecutive Wednesday nights and the flight from Karluk
to Kodiak was $76 one way. The client traveled to Kodiak for
the alcohol screening and the counselor recommended that he attend
an intensive outpatient program that met twice a week for six
weeks. This man, who was in his sixties, lived on a limited income.
He did not have a place in Kodiak where he could live during
the treatment, nor could he afford to fly back and forth twelve
times over the course of six weeks. Karluk had no alcohol programs
that he could attend. I left Kodiak before learning if this client
had successfully completed the program, but even if this individual
did manage to complete all of the probation requirements, many
people in similar situations could not.
To the greatest extent possible
the court, prosecutors, public defenders and troopers may want
to look at some of the practical problems addressed by this article
and consider making changes to the system. Some changes could
occur relatively easily because most communities have some form
of tribal court or council already in place. The state could
experiment with returning the prosecution of minor misdemeanors
to the community level. Tribal courts and councils might adjudicate
minor offenses and provide follow-up. Probation and supervision
at the local level, integrating community values, would more
likely succeed than the current system. Such an approach would
also save the state much-needed revenues which are currently
being used to fund transportation and incarceration.
Rachel King is an attorney with the American Civil Liberties Union in Washington, D.C. She formerly worked in the Alaska Office of the Public Defender.