Data from the Sentencing Project, a nonprofit which advocates for criminal justice reforms, shows that Native American children in Washington are nearly five times more likely on average to be incarcerated than their white peers. Furthermore, Native American children are less likely to receive a second chance once they are in juvenile court, according to a recently published series from InvestigateWest about the inequities Native American youth face in Washington’s criminal justice system. Melanie Henshaw is a Citizen of the Muscogee Creek Nation and the Indigenous affairs reporter at InvestigateWest. She joins us to discuss her findings.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. We start today with recent data about Native American youth in Washington’s criminal justice system. Native youth are nearly five times more likely than their white peers to be incarcerated. That disparity has actually gotten a lot worse in the last 20 years. What’s more, Native children are less likely to receive second chances once they’re in juvenile court, and less likely to be offered access to diversion programs that are alternatives to incarceration. Melanie Henshaw is a citizen of the Muscogee (Creek) Nation and the Indigenous affairs reporter at InvestigateWest. She wrote about all of this in two recent articles, and she joins us now. It’s great to have you back on the show.
Melanie Henshaw: Dave, thanks so much for having me again.
Miller: I want to start with one of those headline numbers I just mentioned. Native American children in Washington are more than 4 ½ times more likely to be incarcerated than their white peers. I think one question that people might have when they hear that is how we know that that’s because of disparities in the criminal justice system, as opposed to higher rates of crime. What does the data show?
Henshaw: The data shows that, when isolated for case characteristics – meaning when you account for independent variables in each case – race still stands out in disparities across the state’s criminal legal system. We had a large drop in the overall number of cases being referred to court during COVID, so there was an overall drop in the number of cases during COVID, but we’re seeing those numbers tick back up again, starting in the past two-ish years. Ultimately now, what you’re having is a lot fewer people overall charged with misdemeanors, but a lot of the rates of felony cases are actually higher than they were prior to the pandemic as well.
Miller: What did you hear, though, about differences in incarceration rates for the lowest level offenses or nonviolent crimes?
Henshaw: That’s where the disparities were even more striking. While Native kids were actually around two times more likely to be arrested for violent offenses, they were, at some times, as much as seven times more likely to be arrested for nonviolent property offenses. When they had already been processed through the system and then been put on probation, they were almost 30 times more likely to be sent back to jail over technical violations to their probation, like missing a check-in with their probation officer or missing an assigned curfew.
Miller: The data showed that there are big geographic differences, that there are disparities all across the state of Washington, but some places are worse than others. Can you give us a sense for the numbers in Okanogan County?
Henshaw: Okanogan County, for those that aren’t familiar, is on the far northern reaches of the state of Washington and the ancestral homelands of the Confederated Tribes of the Colville Reservation, and it directly abuts the Confederated Tribes of the Colville Reservation. There are really large disparities. More than half of all juvenile arrests there are Native American children, even though the overall population share for Native people in that county is less than 10%. You have issues with truancy as well, where Native kids are being referred to court for truancy at really high rates in that county.
Miller: What did you hear from citizens of the Confederate Tribes of the Colville Reservation and lawyers about this? Specifically the way that they feel that they’re being targeted by state law enforcement.
Henshaw: This is an issue that I’ve heard throughout my time reporting on the Confederated Tribes of the Colville Reservation, both from children as well as lawyers who represent Colville citizens, both juvenile and adult. They have a feeling that, due to these high rates of arrest, high rates of cases for truancy being referred to court, that they are ultimately being unfairly targeted.
There are some traffic cameras that are pointed at critical arteries on and off the Tribal land. Some reporting I actually did earlier this year shows that they are facing really high rates of discretionary searches by Washington State Police, which is essentially when the law doesn’t require the police to do a search, but police choose to do a search anyway. That, in combination with these cameras and high arrest rates, really has created a feeling among some people that they are being targeted.
Miller: You mentioned truancy a few times. We’ve talked in the past about what’s known now as the school-to-prison pipeline. What does that look like in Washington for Native youth?
Henshaw: There’s a lot of data to support the fact that Native kids are facing disparities in truancy, which is when the school district feels that the remedies that they’ve tried with the family are not working, and that they ultimately want to refer the child and their family to a court process.
What’s happening for some Native families is there’s structural barriers, meaning that they don’t have the transportation to get to school, or perhaps they don’t have the money to support the child’s education, but also kids who aren’t feeling represented in school. They don’t see their history reflected in the course material. They don’t see themselves among their peers, being a small population share, and schools are struggling to connect with Indigenous families and reconcile a really difficult history that is not that far off for a lot of Native families where there were abuses by the state, by the school and family system to really destroy kinship bonds, and it has had an intergenerational effect that hasn’t really had a lot of time to heal yet.
Miller: Could you tell us the story of a man you talked to named Derrick Belgarde, who is a citizen of the Confederated Tribes of the Siletz Indians?
Henshaw: Derrick is the CEO of a housing and homelessness services group geared towards Native people in the Seattle area, and he has gone through a story that is familiar to a lot of Native people in communities in the Northwest, and really across the nation. He was in what he called a revolving door of criminal charges as a young person. He was truant from school in Marion County and assigned a truancy officer that tried to keep him in curfew and tried to keep him in school. It didn’t work.
He ultimately dropped out and continued to interact with the criminal legal system until he was able to receive a culturally sensitive rehabilitation program through the Chief Seattle Club that he now leads. That allowed him to “Walk the red road,” which is a Native way of saying that he has been sober now. He identified that as a way that was really impactful in helping him draw away from these systems that he had not been successfully able to get away from in the past through the more traditional carceral systems of being sentenced to jail for probation violations and truancy and other issues like that.
Miller: How robust are the networks that would connect Native youth to Tribal systems once they’re caught up in the criminal justice system?
Henshaw: I would say that there are no networks. Tribal affiliation isn’t even regularly recorded when kids are arrested. It’s based on self-identification or sometimes an officer’s estimate that often leads to Native kids being undercounted in the system. You really can’t get a true scope of how serious the problem is because we don’t know exactly how many Native kids are being brought into the system.
Some folks I spoke with have advocated for implementing a system of notifications to Tribes when their youth are arrested in the state of Washington that would allow a Tribe to potentially intervene if they chose with resources that they may have available for housing, family support, community and cultural support that can help keep kids away from problems.
I did speak with advocates who really talked about kids who are charged with low-level crimes, the impact that it can have on them to receive support and care from people who are integrated with their community.
Ultimately, there are no statewide networks now, and that’s showing up in the fact that some counties and prosecutors have an agreement with nearby Tribal nations to offer support where they can, but that’s far from a universal system.
Miller: The data you looked at spans the entirety of the criminal justice system, meaning post-release as well, and the disparities continued. You talked about it briefly, but I want to dig more into this right now. What did you find about room for error or second chances, in terms of white young people and Native young people?
Henshaw: In Washington State, there is a law that mandates something called diversion for most low-level nonviolent offenses and even some minor felonies. Diversion is essentially a way out or away from jail. You’re looking at anger management, or restitution, therapy, or in some cases even probation. Data finds that in Washington State, who is offered those chances, particularly when discretion comes into play – so after kids have already been diverted for their first offense – if they come back into the system, that’s when the chances for Native and Black kids to avoid jail drop precipitously. A report that came out earlier this year found a high level of confidence that race was the deciding factor in these cases.
Miller: You noted that this recent statewide report on diversion programs, it stopped short of attributing racial disparities to bias, calling for more research at the county level, but it did say that there’s very strong evidence that race and ethnicity influenced diversion decisions for Native youth in Pierce County and extreme evidence for Black youth in Pierce and King Counties.
What did you hear from one person in particular? You talked to a woman named Suzanne Hayden, who’s a public defender in Clallam County, about a letter that one of her young clients wrote to a judge. Do you mind telling us that story?
Henshaw: This was a child who had already served time in juvenile rehabilitation, which is the fancy way of saying kid jail. This child had been released on probation and I believe had missed a check-in with his probation officer. The child went before a judge with a three-page handwritten letter explaining circumstances surrounding why he had missed the appointment. Some context that’s interesting is that this child’s older brother was already in jail and this kid was really struggling without having any sort of familial guidance. Ultimately the judge and the probation officer declined to read or consider the letter and sent the kid back to jail for 30 days.
When I spoke with Ms. Hayden, the child’s lawyer, who’s a public defender, she said that she found when kids went before a judge in Clallam County for similar violations and they were white, that they were granted far more leniency. That’s something that data does support at the statewide level. Something else that she shared with me was that after this child served time for this probation violation, he didn’t receive support, in her words, upon reintegration and ended up ultimately committing more felonies now.
Miller: What did you hear from people you talked to about solutions?
Henshaw: It’s complex, but when we’re looking at diversion, particularly, the first step was to gather better data. The state doesn’t track diversion on a statewide level. Each of Washington’s 39 counties runs their own diversion program, and what might be considered diversion in one county might not be considered diversion in another county. There’s really no statewide tracking method for diversion. So getting better data on who is being offered diversion, what is considered diversion, and what’s effective, I think is generally accepted as the next best step.
Miller: It seems to me just reading your articles that one of the big challenges here is discretion. Discretion on the part of prosecutors when it comes to, say, recommending diversion programs or on the part of judges in saying, “Yes, I’m going to give you a second chance. I will listen to your pleas for lenience” or, “I won’t.” How does that complicate what we’re talking about, if it’s up to individuals who may have biases that they know about or don’t, if that’s what’s leading to a lot of these numbers?
Henshaw: Across the system, where disparities are found, they tend to get worse when discretion is introduced. A lot of folks who I’ve spoken with say that that’s an element of structural racism in the system, where you have children who are not white who are charged more harshly, who are given fewer opportunities to avoid jail, and when they’re not able to avoid jail are given longer and harsher sentences. That is a system that is not built for rehabilitating children and instead penalizing them.
Ultimately, it is very difficult to identify specific solutions to it, but there are efforts in the legislature in Washington to address these disparities, but it’s difficult when, again, discretion plays a large role. If you limit some sentencing issues, if you limit who can be moved to adult court or moved out of the system, that helps somewhat. But when discretion comes into play, which it ultimately does, that poses a big issue.
Miller: Just briefly, can you tell us what the third installment of this series is going to be coming out within the next week?
Henshaw: You have hundreds of people in Washington’s adult prisons who are serving time for crimes they committed as children, whether that’s through a process called juvenile declines, where they’re charged as adults, or time was added to their sentence through a process called juvenile points. So stay tuned for that.
Miller: Melanie, thanks very much.
Henshaw: Dave, thank you.
Miller: Melanie Henshaw is a citizen of the Muscogee Creek Nation and the Indigenous affairs reporter at InvestigateWest. You’ll find links to the first two articles in this series on our website, opb.org/thinkoutloud.
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