First Peoples, First Principles: The Sentencing Commission's Obligation to Reject False Images of Criminal Offenders

Driven by public concern about sex offenses, in recent years Congress has repeatedly enhanced the penalties for federal sex offenders. In doing so, it has responded to the predominant portrayal of sex offenders as inhuman predators, and heeded the demand of victims rights groups for longer sentences. However, it has failed to consider the special make-up of the sex offender population sentenced in federal court. While only a small number of all sex offenders are sentenced in federal court, over half of them are Native Americans. The culpability and future risk of many Native American sex offenders, however, differs dramatically from that of non-Native American offenders. Many of them are situational rather than dispositional offenders. The guidelines fail to account for unique features, such as the high alcoholism rate on reservations, which may contribute to sex offenses committed by Native Americans. In addition, the federal sentencing regime does not consider the special impact of incarceration upon them. This article calls upon the U.S. Sentencing Commission to use its special expertise and institutional position to help create more equitable and fair sentencing policies for all, and to start by addressing the impact of current sentencing practices on Native American sex offenders. This request is based on the Commission's statutory obligation to assist Congress in creating a rational and humane sentencing policy. The article outlines a number of possibilities to address the plight of Native American sex offenders. Among them are the recognition of novel departure grounds and allowing federal courts to consider comparable state sentences in imposing punishment. While such proposals ask that fundamental tenets of guideline sentencing be reconsidered, they promise greater justice and fairness for all.