All criminals deserve punishment as stated in law; however, every suspect is presumed innocent until proven otherwise in a court of law.
The presumption is not just a word from a book but applies to the suspect’s rights and treatment by all concerned.
Unfortunately, this is not the experience of many suspects in the United States (U.S.), especially the native Americans.
Several reports over the years have confirmed that defendants of color are more likely to be jailed before trial than their white counterparts, even for minor cases. White defendants’ trials have also been observed to enjoy less delay than non-whites.
Surprisingly, this is no different for suspects tried in tribal courts. A report sponsored by MacArthur Foundations stated that 45 percent of people incarcerated in tribal jails were being held pretrial, and pretrial detention had risen by at least 80 percent since 1999. The report also noted that in the last two decades, the number of jails in Indian Country has increased by 25 percent, with most of them filled with people charged with petty crimes and detained longer.
What is more surprising is that most of these people were not detained pretrial because there is overwhelming evidence against them being guilty, being a flight risk, or that they pose a threat to their communities.
Instead, it is because they cannot afford their bail. A judge usually sets a bail amount at a suspect’s first court appearance following an arrest.
It is normally used to compel defendants to always appear before the court for their trial. The bail amount will be forfeited if the person fails to show up.
Judges typically set a bail amount based on the jurisdiction’s standard. However, in special cases, the judge may decide to waive, lower, or increase the bail amount. When setting the bail, the judge might consider the suspect’s prior criminal history, flight risk, and the danger they might pose to the community if released. Generally, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors.
In simple terms, serious crimes committed by people with past criminal histories with a high likelihood of not showing up in court and danger risks to their community will have a higher bail. The high bail will incentivize them to always appear in court to avoid losing their money.
Many native communities struggle financially, making it difficult to afford bail or hire adequate legal representation. However, accessibility to bail bonds can help mitigate such occurrences and help reunite innocent suspects with their families until they are acquitted. Defendants do not necessarily need a lawyer to post bail.
According to Fianzas, a fiancista en miami servicing American Indians and Alaska Natives, a bail bond is an agreement between a defendant (the person arrested) and a bail bondsman (a licensed professional), who is a surety. They essentially pay the bail amount to the court on the defendant’s behalf.
While bail bond is a solution to pretrial detention, it is also vital to mention that implicit bias against Native Americans in the legal system plays a role in their pre-trial detention.
For instance, tribal members frequently find themselves in federal court for different charges, as minor as burglary. Meanwhile, federal charges are usually offenses related to national matters such as immigration, voting rights, and racketeering.
The problem with being charged in a federal court is that the defendant is more likely to be given a stiffer punishment than if tried in a state court.
Although criminal justice reforms in states like New Jersey and Kentucky have helped reduce pretrial populations, the effect on racial disparities is insignificant.
Even though advocacy and more justice reforms can help reduce the trend, geographical challenges are another factor to consider, as remote locations where some indigenous people are located can make court appearances and legal support more difficult.
Tribal nations should also employ criminal justice systems that reflect their communities’ beliefs. The law should be made with consideration for their tribes instead of adopting criminal codes that largely reflect the justice models of neighboring states.
For example, a defendant can use their real estate as a secured bond to make bail. Meanwhile, most Native American lands are trust land. This means a tribal court defendant will generally be unable to leverage such an option as they live on land owned by the U.S. government.
Similarly, decades of systemic inequities have created widespread poverty and limited access to reliable transportation in reservation communities. Pretrial detention can negatively affect the family lives of indigenous people and also force them to plead guilty, even if innocent, just to be released. This undermines the fairness of the justice system.
