Here's a depressing example of the consequences of alcoholism, particularly for some Native Americans.
First, the offense that gave rise to the appeal. The defendant in this 9th Circuit case was Vernon Lee Bad Marriage, Jr. (not a great start to a first date: "Q. What's your name? A. Vernon. Q. Whats your last name? A. Bad Marriage. Q. Oh. Bye."). He's released from tribal jail on January 20, 2003, to attend an Alcoholics Anonymous meeting. Does he attend? Nah. Why go to some boring meeting when this is your alternative:
"Instead, he went to the home of Leeta Old Chief, his girlfriend. After having consensual sex, the couple drove to visit friends. At Bad Marriage's sister's house, an argument ensued between Bad Marriage and Old Chief, and he began hitting her. The two [then] went to the old rodeo grounds behind his sister's home . . . . [where he] kicked and beat Old Chief in the thighs and pelvis . . . . [and] had anal sex. Old Chief [] gave conflicting accounts of whether the [anal] sex was consensual or forced."
Ugly. So he's charged and pleads guilty to assault resulting in serious bodily injury. The trial judge departs upward based upon his prior criminal history, and Bad Marriage gets sentenced to 41 months.
Why depart upwards? Maybe it has something to do with Bad Marriage's 95 prior criminal convictions, 35 of which were in state court (in Washington and Montana) and 60 of which were in the Blackfeet Tribal Court.
An obvious case for upward departure, right? Depends. Most of his tribal convictions are for disorderly conduct or public intoxication (and some for escape from tribal jail and assault). His state court convictions are for things like theft (15+ -- "the most expensive item that Bad Marriage is described as having stolen is a few cases of beer"), trespass (10), assault (4), DUI, obstructing a policy officer, and disorderly conduct. See any pattern? The guy is a posterchild for alcoholism.
So the factual history of the case is both depressing and instructive. The Ninth Circuit's response is also very interesting. The panel is Ferguson, Pregerson, and Callahan. Not exactly a tough call to figure out how that panel is going to split in a case like this.
Ferguson and Pregerson reverse the upward departure, while Callahan would affirm. Judge Ferguson begins the majority opinion: "This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it arises. These problems cry out for treatment, not simply more prison time." When it starts like that, you know where it's ending up. Judge Callahan is hardly the most hard core right-wing conservative on the Ninth Circuit, but she's also far from having the same kind of soft spot at Ferguson and Pregerson. So her reaction is also pretty much what you'd expect: paeons to the problem but insisting that the solution does not lie with the judiciary. "Alcohol abuse is a devastating problem on Indian reservations. It is a problem, however, that the majority opinion does nothing to alleviate."
An interesting case all around.
