Sharing Our Stories of Survival: Native Women Surviving Violence (60 page)

An offender pleading not guilty has already been advised of and afforded his due process rights in the criminal procedures during arraignment. Although he has a right to reasonable bond, the court can consider any information pertinent to past or likely behavior when deciding what bond to place upon him. The judge has the ability to decide whether that information is relevant and should be considered.

Likewise, an offender who has been afforded his due process rights at trial and has been found guilty, or changes his plea to guilty, has completed the due process phase. His sentencing is only an administrative proceeding under the authority and responsibilities of the court. Information that could have been ruled prejudicial, irrelevant, or hearsay at trial can all be considered for the purpose of determining appropriate sentencing conditions.

A complete pre-sentence or pre-arraignment report should document all information available about the offender, whether favorable or unfavorable. It should detail the family, social, community, and financial status of the offender. The judge needs to know if his bond has been revoked before or he has failed to appear, if he has a position in the community or a job that pays well, if he has a drinking or gambling problem, and if he has a pattern of abusive behavior toward his partner/victim after prior domestic violence arrests. In short, everything should be included in the pre-sentence or pre-arraignment report, whether it reflects badly or favorably on the offender. Such a report is often the only way a judge can be informed about what type of person the offender is.

Case Management and Caseloads

An ongoing debate exists in the general probation and parole community concerning the caseload a probation and/or parole officer should carry. At one time the number fifty was adopted as the “best” caseload size for probation. However, since 1967, the accepted optimum caseload size has stayed at thirty-five cases per probation officer.
¹⁹
That is not to say that the caseloads of every probation officer are restricted to thirty-five cases, but that this is a general standard for most non-Indian probation departments.

With severely limited resources, tribal court systems do not have the luxury of restricting caseload size for probation officers. Most are lucky to have received funding to establish any probation effort at all. Many tribal courts are still unable to fund a general probation officer, let alone one to specifically handle domestic violence.

In tribal systems that do have a probation officer or officers, setting caseload size is usually not an option. They are what they are. Caseloads can vary from six to six hundred easily, so the main considerations have to be matching the supervision strategy adopted by the agency to the probation officer’s caseload and prioritizing cases to provide the highest levels of supervision to those offenders who need it most. Since the Bureau of Justice Statistics’ 1999 report
American Indians and Crime
²⁰
has documented the peril faced by Native women from intimate partner violence, tribal criminal justice systems can justify increasing their efforts at providing a greater level of safety to women, including specialized probation services for domestic violence offenders. Securing the resources to accomplish this is another matter.

Probation as a Long-Term Strategy

The lack of comprehensive statistics from Indian Country probation efforts is problematic in determining what may or may not be working in Native communities. Yet, Native communities with supervised probation as a sentencing option may be experiencing some success with a probation strategy customized to fit their cultures, communities, and their specific laws.

Establishing a probation strategy that works for a specific community may require reorganizing resources and/or changing strategies several times before the right combination is found. Each tribal community is different and several attempts might be needed before a specific strategy makes an impact. These efforts to make changes will not be accomplished overnight. The problem took centuries to develop in our communities, and it may take years to develop a probation strategy that is effective in our communities.

In their report to the Oglala Sioux Tribe Judiciary Committee in 2002, the Cangleska, Inc., Domestic Violence Probation Department on the Pine Ridge Indian Reservation of South Dakota summed up the effectiveness of their initial strategy:

In 1998, statistics determined that there was a 44.8%
recidivism
rate among domestic violence offenders on the Pine Ridge Indian Reservation—a rate that had stayed consistent for nine years. By March 2001, we had reduced the re-offense rate to 22.3%, a reduction of over 50%. We were then hit by funding difficulties and had to let go most of the probation staff and offenders’ program staff. By August of 2001, recidivism was back up to 46.4%. When we were able to re-staff those departments, the rate reduced to 24.2% within a month. During that entire period, 1998–2001, the number of domestic violence arrests declined by 18% as well. It is clear from these numbers that our dual approach at offender rehabilitation is working, but only when the criminal justice system responds appropriately.
²¹

These results came from an underfunded probation department composed of five probation officers monitoring 1,800 offenders. The department was energized by these figures and became determined to increase the department’s effectiveness with the resources at hand.

Cangleska, Inc., restructured their probation response and supervision strategies to maximize available resources. Continuing contact with individual victims was made a requirement of probation staff. Enhanced supervision was implemented with repeat offenders where the level of violence was high or had escalated sharply between assaults. Processes for ongoing communication between probation and advocates, men’s group facilitators, and other members of the coordinated community response were formalized and utilized to keep probation officers aware of a broader range of offender activities. Culturally relevant education, role-modeling, and character development activities were included in probation and reeducation programming.

The effect in the Oglala Sioux system is flexibility of the probation response, which can be adjusted during the probation term to meet the specifics of the crime, available resources, and the changing needs of the victim, the offender, and the system. This individualization of supervision allows the probation officer to target areas of the offender’s behavior that encourage or trigger the use of, or the excuse for, violence. This type of supervision strategy is so time intensive it is impossible to use with all domestic violence offenders. Only the “worst of the worst” offenders can be targeted for this type of monitoring, leaving a majority of first-time or less-violent offenders to be monitored by “paper chase” methods. Although this probation scheme appears to be reducing recidivism, the Oglala Sioux do not have the capacity or the research base at this time to determine the long-term effects of their approach.

Just as it took years to shape a domestic violence offender’s feeling of privilege and need for dominance, formulating the appropriate probation strategy for a specific Native community may require years of experimentation, innovation, and fine-tuning. Yet, the future safety of Native women and their children relies on just such a long-term commitment from tribal probation programs.

Tribes without Tribal Probation Resources

Tribes without probation officers or probation departments can still develop strategies for tribal monitoring of domestic violence probationers. The first step is developing policy stating the need for such supervision, then examining what resources the tribe and community have that might be used to monitor offender behavior.

Active Monitoring by Law Enforcement

The tactic of enlisting community and family members to keep an eye on offenders can still be implemented without probation officers. This effort can be combined with other community-based policing techniques. Police officers can work to actively enlist the help of community members, as a function of their jobs. Anyone can report crime and police officers need to promote community responsibility for the mutual safety of its members.

Police officers historically have used informants and public-minded citizens to keep them apprised of potential trouble spots and criminal activities in the community. Including the specific activities of domestic violence probationers in this enforcement strategy can send a strong message to offenders that their activities are actively being monitored by law enforcement. Officers hearing of further violence by a probationer can then conduct safety checks on the probationer’s partner. The officer can confront the probationer on the reported behavior, whether or not probable cause exists to take action at that time.

Officers can gather and keep confidential information on the offenders. As discussed previously in this chapter, this type of monitoring has a strong deterrent effect on individual offenders. The fact that the offender does not know how the officer is getting the information can be extremely effective, causing the offender to believe that “everyone” may be watching him and that any acts of violence, no matter how concealed he thinks they are, will result in an immediate response by law enforcement.

System procedures, such as effective information sharing between criminal justice and service providers, no-tolerance policies, and coordination of victim services also further provide a strong signal to offenders that the community will hold them accountable for their violence. Law enforcement can develop strategies to use the coordinated community response system as an active monitor of offender activities and behavior. If the regular duties of law enforcement or other court officers can also be amended to include monitoring activities, probation supervision without probation officers can be implemented by a tribal community.

PL 280 Probation Initiatives and Problem Solving

Monitoring probationer activities and behavior in jurisdictions falling under PL 280 can be especially problematic if tribal/state animosities exist or if the tribe is attempting to reestablish its jurisdictional authority. The difficulties often lie in the miscommunication and the incompatible practices between the tribal community and the state employees. Nonetheless, probation monitoring can be enhanced to provide for greater levels of safety for Native women and their children.

Providing for the safety of individual Native women must be stressed as a priority by the tribal community. In tribal communities falling under nontribal probation programs,
²²
the tribe can initiate meetings with probation and law enforcement to formulate innovative processes to meet their specific probation and safety needs. Tribes may need to educate nontribal agencies to their specific needs and concerns. Non-Native probation officers working in Indian Country can take the initiative to seek out the specific concerns and needs of the Native community. Tribes should also look to advocacy programs as good examples of ally building. They may try to target a receptive probation officer for recruitment or reassignment to the tribal community. Establishing cooperative agreements and relationships with state or local county probation programs is essential.

Conflicts might be addressed through collaborative allocation of resources. Specific funding sources that might be available to the tribe, but not to state or county programs, could be sought and obtained by the tribe. Offering these added resources to existing nontribal probation services can serve as an incentive to realigning probation priorities in the tribal community. This could include funding a tribal probation officer who will work directly for the state or county court to only monitor domestic violence probationers within the tribal community.

No matter what form any development efforts take, providing for the public safety in a PL 280 jurisdiction should be a joint effort. Each side needs to make the safety of Native women a priority.

Tribal Development of Probation Services

Some Indian communities may have the ability to establish a probation response, but the tribe does not see probation service as necessary. In those instances, community education and awareness might be the starting point for making domestic violence probation a priority for the tribal criminal justice system. National Indian Country and local statistics can be stressed to clarify the need for an effective probation response. Probation can be brokered as a sentencing option in the face of insufficient jail space. Emphasizing the need to conform the probation response to the tribe’s customs, values, and cultural priorities is also an effective selling point.

Maintaining probation programs is usually at the mercy of available federal funding or monies from casino revenues, private grants, or state-based initiatives with Indian set-asides. The other challenge is maintaining the enforcement aspect of the probation program. Someone has to be acting to enforce domestic violence sentencing conditions, or any sentence of probation issued by a tribal court is meaningless. Having no consequences only encourages an offender’s use of violence and means increased danger to women in the community. Some type of probation enforcement must be implemented to make a tribal domestic violence code effective.

Conclusion

Underresourced tribal communities must explore alternative ways to hold domestic violence offenders accountable for their violence and provide for greater safety. One alternative, which has similarities to traditional methods, is enhanced supervision probation. Community resources are used to provide supervision and violation reporting. This effort should be established by the community and should take into account tribal custom, culture, and expectations for rehabilitation of offenders. No matter what resources a Native community has or does not have, keeping their women safe should be a priority, and some type of effort should be maintained to monitor the violent and abusive behavior of domestic violence offenders.