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Unpublished Paper
Correcting Native American Sentencing Disparity Post-Booker
ExpressO (2007)
  • Timothy J Droske
Abstract
Native American criminal defendants are subject to disproportionately harsher sentences than similarly situated non-Indian defendants. This is due to the federal government’s exclusive criminal jurisdiction over Native Americans in Indian country for major crimes and the fact that federal sentences tend to be more severe than their state counterparts. Judges and commentators have proposed various means by which to reduce this disparity, but so far, all these proposals have either lacked the political capital to be enacted, or been frustrated by the rigidity of the Federal Sentencing Guidelines. The Supreme Court’s 2005 decision in United States v. Booker however, rendered the Guidelines advisory rather than mandatory, and has provided federal judges with the opportunity to downward depart to correct such sentencing disparity. Although the Supreme Court’s recent decision in United States v. Rita appears to foreclose the possibility that a failure to correct such disparity is per se unreasonable, the circuit courts’ recent debate surrounding fast-track sentencing, and particularly the Sixth Circuit’s decision in United States v. Ossa-Gallegos, shed light on how federal district courts can downward depart to correct for this disparity. This article’s proposed method of correcting Native American sentencing disparity through downward departures offers two key advantages over previously proposed solutions. First, unlike proposals requiring Congressional action, this article’s proposal offers an immediate solution to Native American sentencing disparity. Additionally, with Native American sentencing disparity being a byproduct of a jurisdictional issue, the courts, particularly post-Booker, are perhaps the branch best suited to resolving this issue.
Keywords
  • Indian,
  • Native American,
  • American Indian,
  • Booker,
  • sentencing guidelines,
  • sentencing disparity,
  • fast-track,
  • fast track,
  • downward departure
Disciplines
Publication Date
September, 2007
Citation Information
Timothy J Droske. "Correcting Native American Sentencing Disparity Post-Booker" ExpressO (2007)
Available at: http://works.bepress.com/timothy_droske/1/