This month, the Navajo Nation began a long overdue effort to address one of the country's worst crime rates.
Navajo President Ben Shelly signed landmark legislation on December 1 which effectively ended a 14-year moratorium on prosecuting certain crimes because of a lack of jail space and human resources.
The legislation, which provided, among other things for new detention facilities to hold offenders, “gives the Navajo Nation the opportunity to exercise tribal jurisdiction in a lot of these criminal cases,” Shelly said.
At the same time, he said, the Navajos will continue to collaborate with the federal government and the U.S. Attorney's office to address capital crimes committed on tribal land.
Rick Abasta, a spokesman for the Navajo Nation, said the $74 million in funding to build the new detention facilities and “Justice Centers, ” provided through the American Recovery and Reinvestment Act of 2009 (ARRA), allowed the tribe to eliminate the moratorium declared in 2000. It will permit construction of new detention facilities in the Arizona towns of Chinle, Kayenta and Dilkon, and nearly triple the currently limited bed space in older facilities in Window Rock, Az. and Crownpoint, N.M.
According to the Task Force established by Shelly to examine the criminal code revisions and obtain community feedback, getting the criminal code back on track was a dire necessity.
“The initial task was to look at the criminal code because much of it was decriminalized all at once and it is time that we revise this to reflect individual criminal accountability,” Law and Order Committee Vice Chair Alton Joe Shepherd said last year.
Over the past 20 years, while mainstream American has seen a significant drop in violent crime, such as murder, rape and assaults, the Navajo violent crime rates have risen precipitously.
According to the FBI Uniform Crime Report, America's largest Indian reservation reported 830 cases of per 100,000 inhabitants in 2010. The number had dropped by 2013 to 565 per 100,000–but still remained well over the national average of 367.9 per 100,000.
These developments now provide the Navajo Nation an opportunity to address serious crimes committed within tribal jurisdiction. The most serious include: assault, battery, false imprisonment (kidnaping), and most importantly, alcohol related offenses.
John Billison, director of Public Safety for the Navajo Nation, and a former criminal investigator with the Navajo Nation Police Department, told The Crime Report that there has been a sense of impunity on the reservation since 2000.
“The intensity and propensity of crimes have increased,” he said. “Suspects know they won't be prosecuted.”
Most of the crime committed on the reservation can be traced to alcohol abuse and the lack of prosecution of these crimes over the past 14 years had a direct impact in the rise of violent crimes on the reservation.
Billison said crimes such as possession of alcohol, and bootlegging, which were formerly decriminalized, are back on the books as felonies.
He expressed optimism that alcohol- related offenses will now be aggressively prosecuted again.
When you don't prosecute these crimes, these are the people who are committing the serious crimes,” Billison said. “If we had the support services to prosecute these people to the fullest extent of the law, our crime rate would be much lower.
Billison said the majority of crimes committed on the reservation are fueled by alcohol such as murders over the last bottle in a six-pack, to sexual assaults of both adult and child females, assaults, and DWI fatalities.
“We (Navajo Nation) are only as good as the laws we have on the books,” said Billison, expressing the frustration he has endured for more than a decade seeing crime spiral out of control because of a near-dismantling of the tribe's Criminal Code 14 years ago.
Violent crimes such as murder, physical and sexual child abuse, drug trafficking, and corruption fall under federal jurisdiction but require a sensitive extradition process from tribal to federal custody.
Violent and more serious crimes such as murder, sexual assault of children, corruption, and drug trafficking fall under the federal purvey and are investigated by the FBI, with the assistance of the Navajo Nation police, and prosecuted by the U.S. Attorney.
While some have argued that leaving serious crime prosecution to the feds weakens the tribal criminal justice system, many are relieved because of the longer sentencing opportunities , especially in capital murder cases, available under federal courts. The maximum sentence permitted federally on the Navajo Nation is only 12 months, regardless of the severity of the crime.
Academic observers and researchers in the area have been keeping a close eye on the criminal justice changes on the reservation and are hopeful for a rebound.
Curtis Hayes, J.D., Professor of Criminal Justice at Western New Mexico University, agrees that the “lack of adequate penalties to act as a deterrent” could account for the contrast between the drop in national crime rates and the continued increases in the Navajo Nation.
“Some offenders will develop a sense of impunity when they go unpunished,” he says. “But there are a myriad of other factors that have a greater impact on the overall crime rate, than the potential punishment.”
Hayes feels that with a strengthening of the criminal code and a concurrent sense that crimes will now be more aggressively prosecuted, the Navajo Nation can expect to see a decrease in crime in the coming years.
Whether the crime rate will improve to the point of being on par with non-Native America remains to be seen.
Floyd Kezele, Associate Professor of Criminal Justice/Tribal Studies at the University of New Mexico-Gallup Campus and a past Chief Judge for the Pueblos of Acoma, Santa Ana and Zuni, said the prosecutorial moratorium of 14 years ago were mandated in part by “outside forces,” such as court decrees regarding jail conditions.
Kezele said Navajo Nation justice professionals hope they can still employ traditional approaches to justice, which involves conflict mediation and alternatives to sentencing. This can further mitigate the potential for overwhelming the reservation jails while still providing a semblance of accountability for criminal action. Upon conviction or the acceptance of a plea bargain,for example, a judge can defer sentencing and mandate a strong rehabilitative probation period to ensure that the tribal values of harmony are pursued.
“With strict monitoring, a second step of imposition of sentencing and suspension with probation extension can show that the court means what it says,” Kezele said.
Kezele cautions there is a possibility of a reduction of guilty or no contest pleas with jail as a possible sanction. More trials may result, but this is not a bad option as the system matures. Also perhaps, there may be an increase in the requests for jury trials which could hamstring the courts.
Meanwhile Billison says that putting the new criminal code into practice may be a daunting challenge. Qualified and trained human resources such as police, judges, and qualified clerical staff, just doesn't exist due to fiscal constraints, and aren't expected to be available soon, he adds.
That still could make public safety an uncertain human right on the Navajo Reservation.
Joseph J. Kolb is the founder and instructor in the Border Security Studies Program in the Criminal Justice Department of Western New Mexico University. He is also a regular contributor to Reuters News Agency and FoxNews.com and a former Guggenheim Fellow in the Center for Crime, Media, and Justice.