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SANTA FE, N.M. — A long-running debate over whether Native Americans face tougher sentences because criminal cases in Indian Country go to federal court – or whether Indian defendants sometimes can actually catch a break there, depending on circumstances – came to Santa Fe in recent weeks.

Tracey Beaver, of Pinehill on the Navajo reservation and with a long history of alcohol abuse and drunken driving, was sentenced to 10 years in prison by a U.S. district court judge in Santa Fe on Aug. 1 after pleading guilty to two counts of involuntary manslaughter.

Beaver, 39, was charged in the deaths of two sisters killed in a single-vehicle DWI crash on Navajo land last September. The tragedy was amplified by the fact that the mother of the sisters, an emergency medical technician, was part of the ambulance crew that responded to the crash.

Court documents say the mother has not returned to work as an EMT and suffers from flashbacks and nightmares about the accident scene.

Standard federal sentencing guidelines would have resulted in a maximum sentence for Beaver of about four years, but prosecutors pushed for a harsher variance. Judge Martha Vázquez chose the stiffer punishment after hearing arguments on both sides, an apology from the defendant and testimony from the family of the victims.

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The defense plans to appeal the ruling, Beaver’s public defender says.

“Yes, this is a tragic case,” said Brian Pori, who represented Beaver, an enrolled member of the Navajo Nation. “And, yes, it’s heartbreaking. But this is involuntary manslaughter and he was sentenced as if it were second-degree murder.”

The defense argued that following the regular federal sentencing guidelines would have avoided “unwarranted sentencing disparities between Native Americans sentenced in federal court and non-Native defendants sentenced in the state courts of New Mexico.”

According to Pori’s sentencing memorandum, people convicted of involuntary manslaughter in state courts are guilty of a fourth-degree felony and face a presumptive sentence of 18 months in prison. That would have totaled just 3 years for two counts in this case. Even if a state district judge determined there were aggravating circumstances, the sentence could have been raised only to 4 years, six years fewer than what Beaver got, the defense argued.

The case went to federal court because that’s the venue for crimes involving Native Americans on Indian land.

“The thing is, in federal court, you can be charged for one crime and sentenced for another,” Pori said. “That’s what happened here. He was charged with involuntary manslaughter and sentenced as if it were second-degree murder.”

But other factors weighed in Beaver’s favor, federal prosecutors maintained.

Assistant U.S. Attorney Nicholas Marshall wrote in his own sentencing memo that New Mexico state law has a more specific charge for this kind of case – vehicular homicide. Marshall noted that sentencing for vehicular homicide in New Mexico ranges up to 15 years per count, with another four years that can be added if a defendant, as in Beaver’s case, has a DWI conviction within the prior 10 years.

Beaver therefore could have been sentenced to 38 years for the two sisters’ deaths if he “had crashed in Grants, N.M., where he purchased more alcohol (before the wreck), rather than on the Ramah Indian Reservation,” a prosecution memo states. Ramah is a non-contiguous part of the Navajo Nation located in McKinley County.

“This indicates the Federal Court system has a more lenient sentencing structure than the State Court for this type of crime,” the memo says.

Debate, and data issues

That’s not always the case, however.

A federal advisory group that studied sentencing data for New Mexico and South Dakota reported in 2003 that Indians convicted in federal courts on assault charges faced significantly longer sentences. The panel found that the average sentence for an Indian convicted of assault in New Mexico state courts was six months, compared to 54 months – 4½ years – for a Native convicted in federal court.

Judges around the country, including former New Mexico state District Judge Samuel L. Winder of Albuquerque, say that federal sentencing mandates mean Indians get far longer sentences than people prosecuted for crimes in state court.

In a case the Journal has reported on before, Gerald Viarrial of Pojoaque Pueblo was sentenced this year to 20 years in prison for federal convictions after he was accused of lining up eight members of his family – seven children and their mother – and threatening to kill them with a gun after he couldn’t find some car keys, and of strangling one of his sons.

Had Viarrial been convicted in state court on similar charges – some maintain New Mexico’s criminal sentences are too low – he would have faced less than half as much prison time.

Federal prosecutors made an issue of Viarrial’s many prior convictions and other charges in tribal court, and used them to push for a harsher sentence, saying federal judges have leeway to take tribal cases into consideration. The case is on appeal.

The U.S. Sentencing Commission’s Tribal Issues Advisory Group, which included Native members, issued a new report in 2016. This time, its findings were inconclusive.

It acknowledged a widespread perception – including “among Native Americans, many federal prosecutors, federal defenders, and some federal and state judges” – that Indian criminal defendants don’t get a fair shake by having their cases heard in federal court.

But the advisory group determined that the available data are insufficient to come to conclusions on sentencing disparity.

The report refers to a well-known trio of cases of infant death in North Dakota several years ago. A tribal mother got a 10-year sentence for the death of a newborn. In two similar cases involving non-Indians, one woman received only probation and another got a two-year sentence.

“Various academic studies also fuel the perception that Native Americans are subject to harsher sentences for Indian country offenses prosecuted in federal court than occur for similar criminal conduct committed in states,” says the TIAG report.

It found, however, that “sentencing data currently does not exist to conduct meaningful sentencing disparity analysis.”

In trying to compare federal and state court sentences, the advisory group said, the lack of adequate demographic and other kinds of data “from all relevant states, along with the difficulties inherent in attempting to compare the elements across federal and state crimes, make it virtually impossible to complete a robust comparison of the sentences received or served by non-Indian and Indian defendants in federal and state courts.”

But the study also points out how state court sentences can be much less severe.

TIAG’s report recognizes the “flexibility” allowed state court judges that doesn’t exist in the federal system – in effect acknowledging that state judges have options to be far more lenient.

In Minnesota, TIAG notes, state judges can use diversion, deferred prosecution agreements, staying the imposition or execution of sentence, probation, parole and specialty courts, such as DWI courts and drug courts that emphasize rehabilitation. New Mexico state judges have similar options.

“Because of the near certainty of punishment following federal convictions, each of these state court alternatives to traditional sentencing contribute to the disparity, real and perceived, between sentencing outcomes in federal and state systems,” the TIAG report states.

Relevant to the Beaver case in New Mexico, the study did reach some conclusions on manslaughter cases – but not what critics may have expected.

“Specifically, for the time periods studied and across the states for which comparable data were available, the federal sentences imposed on Native Americans in both voluntary and involuntary manslaughter cases were lower than the sentences imposed on Native Americans in comparable state manslaughter cases,” TIAG reported.

The study group encouraged better data collection going forward.

“Federal agencies and the states should capture more and better criminal sentencing data to enable comprehensive and meaningful comparisons between sentencing systems, and doing so would advance the federal government’s trust responsibility to Indian tribes and nations,” TIAG said.

‘Beer run’ goes bad

Beaver was behind the wheel when he, the two sisters – identified only by their initials in court documents – and another man were on their way back from a “beer run” to Grants. The accident occurred midday on Sept. 16, 2016, on the Ramah reservation

All four were crammed in the cab of a GMC Sierra pickup truck and were drinking alcohol when Beaver lost control while speeding south on BIA 122, a dirt backroad they chose to avoid a possible encounter with police. The truck veered off the side of the road, Beaver overcorrected and the truck rolled.

None of the four was wearing seatbelts and all were ejected. The two sisters were dead by the time police arrived and Beaver was transported to a medical facility on the Zuni Indian reservation. Two hours, 40 minutes after the accident, Beaver’s blood alcohol level was measured at .26, more than three times the presumed level of intoxication in New Mexico.

The mother of the two dead women, after arriving as part of the ambulance crew, identified the bodies. She became emotional and had to be restrained from attacking Beaver, who was the ex-boyfriend of one of her daughters. Pori, Beaver’s public defender, said the mother of the women killed in the accident gave “gut-wrenching” testimony about how her family has suffered.

“It’s every parent’s nightmare to lose a child and she lost two in one day. She spoke about how birthdays, Christmas, Mother’s Day – every holiday is worse than the one before,” he said. But Pori argued that everyone in the crashed vehicle played a role.

The attorney said Beaver was remorseful. Beaver knew the family well and pleaded guilty to spare their pain as much as possible, Pori said.

‘Upward variance’

The sentence was exactly what federal prosecutor Marshall asked for. His sentencing motion called for an “upward variance” from the federal advisory sentencing guideline range of between 41 and 51 months.

“The Sentencing Guidelines do not adequately address the harm caused in involuntary manslaughter cases, especially multiple death cases,” the prosecution argued. “Two mothers were lost that day. One death by itself would have been difficult, but this family lost two individuals and the standard grouping calculations fail to fairly account for the increased harm.”

The prosecution also cited “extreme psychological injury” caused to the mother of the two women who were killed, apparently both mothers. The sisters’ mother is now caring for two granddaughters.

Marshall also raised another point that has become part of the discussion in federal sentencing of Native defendants – difficulty in reviewing cases from tribal court. One of his filings says Beaver had a lengthy history of arrests, but that “the outcome of much of his tribal history is undetermined.” Beaver had 16 public intoxication arrests with “indeterminate outcomes” and four DWI arrests “with unknown outcomes or dismissals.” One DWI conviction at Ramah and a federal felony conviction for assault resulting in serious bodily injury were confirmed.

Pori painted a more sympathetic picture of Beaver, saying he was “a product of a disease of the mind,” referring to alcohol addiction. He said Beaver took sole responsibility for the fatal crash, but he also said the others in the truck with him played a role.

“As the Native American child of an alcoholic, he was four times more likely to develop an alcohol use disorder than other members of the general population,” a Pori filing says.

As the TIAG report notes, comparing cases can be difficult.

But Beaver’s sentence of 10 years is only a quarter of the 40-year sentence that David Ruiz, age 36 at sentencing, received in state court for driving drunk and plowing into the back of a family’s car in Santa Fe in 2010, killing two teenaged sisters from the Navajo reservation in town for a basketball tournament. Ruiz, who had prior DWI convictions that were used to enhance his sentence, can cut his prison time in half with “good time” sentence reductions.

In the Ruiz case, of course, the charges were vehicular homicide, not manslaughter, and no one killed had been out drinking with the person who caused the wreck.