Navajo Courts' Uniform Sentencing Policy
This policy was adopted in Judicial Conference on August 13, 1994 in Resolution No. JB-AU-03-94.
IMPORTANT NOTE: The Navajo Nation Council amended the Navajo Nation Criminal Code on January 27, 2000 in Resolution CJA-08-00. The amendments substantially amended the sentencing guidelines. The Uniform Sentencing Policy has not been updated to fully reflect the amendments. The Sentencing Policy of the Navajo Courts, reflecting the amendments and explaining core sentencing principles pursuant to Diné bi beenahaz'áanii, is presently being revised.
I. GENERAL PRINCIPLES
1.1 Nature of Policy.
This is an interpretive policy setting standards and procedures for the use of powers provided by the criminal law of the Navajo Nation and Navajo common law. Courts have the inherent authority to adopt polices which “are addressed primarily to judges and other court official and designed to govern how cases shall be processed.” American Bar Association, Standards Relating to Court Organization 13 (1990) (“uniform standards of justice” discussion). The sentencing powers of the court are set out in 17 N.T.C. § 220 and related sections of the criminal code and this policy addresses the scope of authority permitted by them and Navajo common law.
1.2 Goals of Sentencing For Criminal Offenses.
The goals for a criminal sentence in the Courts of the Navajo Nation shall be:
a. Serve victims of crime. Courts shall require compensation for victims of crime by appropriate restitution or reparation orders (nalyeeh), where the defendant has the ability to pay or perform work. Courts shall enter appropriate orders to protect victims of crime in the future.
b. Rehabilitate offenders. Courts shall impose conditions of sentence to require the offender to acknowledge bad conduct, accept responsibility for the act, and take specific steps to deal with underlying problems. The process may require counseling by the court or other agencies the identification of underlying problems, such as poor self-esteem or alcohol dependence, and other steps to solve problems, which were the source of the offense. Courts should require defendants to enter into agreements regarding the steps required for rehabilitation. The Navajo Peacemaker Court should e used to address denial and find solutions within families.
c. Restore harmony. Courts shall consider the relationship of the offense to underlying problems, and where appropriate, enter orders to deal with reconciliation with the victim or with the offender’s community. The court shall consider Peacemaker Court proceedings to aid the process of counseling or address problems associated with the offense.
d. Talk out problems. Courts shall use the process of talking out problems during a sentencing hearing, through the Peacemaker Court, in separate counseling, or other available processes, to require that the problems of the offenses are talked out fully.
e. Deter future crime. Courts will seek practical solutions and approaches designed for the individual offender to prevent future harm and the commission of criminal offenses. The court should get the views of the victim, the victim’s family, the offender, the offender’s family, probation and parole officers, prosecutors, defenders and social service agencies to design practical and specific conditions of sentence.
f. Prevent Hooliganism. Hooliganism consists of “intentional actions grossly violating social order and expressing obvious disrespect to society.” It is “rowdyism, such as being drunk and disorderly and disturbing the public peace.” An otherwise minor offense is aggravated and should be treated more seriously when the defendant engages in acts of hooliganism, including vandalism. The court may utilize peacemaking to deal with that attitude.
This policy uses three definitions (with references to other definitions in bold type):
a. “Ability to pay” means the defendant’s reasonable capability to satisfy a court order to make restitution, pay a fine, or make some other payment. The court takes into consideration the defendant’s employment and income, property and assets, and future ability to obtain money or property to satisfy a court order. The court can impose time or installment payments or tailor the order to the means of the defendant. 17 N.T.C. § 222(c). The court can also order the transfer of property to the victim, or require other assurances include a peace bond or individual sureties.
b. “Actual damages” is the money value of damages or an injury actually sustained by a victim of a crime. They are assessed in the same manner as damages in a civil action.
c. “Avoidance” is an order of the court to require a defendant to stay away from a named person or group of persons (e.g. “The family of John Jones”) or stay away and out of a defined place.
d. A “bond” is a written promise to pay a fixed sum of money, or a sum certain, to a named person or entity by a stated period of time, or deliver specified property. Bonds usually require a surety. For example, “I will pay the sum of $1,000 to John Jones as restitution within 90 days of the date of this bond.” “I will deliver 20 head of sheep to John Jones by December 1, 1994.”
e. “Civil contempt” is court action to impose a penalty on someone who disobeys a court order to do something (e.g. make restitution). It is “civil” because, like an injunction, it requires someone to do something in the future. It is not punishment for a past act or failure to act. It is akin to “body execution” in the common law, where a judgment was satisfied by putting the judgment debtor’s body in jail. (Body execution has not been entirely abolished in the United States, and thee is still a “debtor’s prison” for those who refuse to pay child support or alimony.) For example, the court may jail an individual who fails to pay restitution or child support until that person actually pays or makes arrangements for payment. The maxim is that the defendant “has the keys to the jailhouse door in his own pocket,” or will be released when the order is obeyed. Civil Contempt is not a criminal charge.
f. A “civil judgment” is an order of the court which is permanent and which requires the payment of money, delivery of property, or permanently enjoins an individual to do an act or refrain from doing an act. The courts may issue civil judgments as part of the criminal process to grant a remedy to victims of crime. The civil penalty mentioned in various criminal statutes is a civil judgment for actual damages.
g. A “concurrent” sentence is one where the defendant is charged with more than one offense, and the court chooses to allow the defendant to serve time, suspend sentence or grant probation for all sentences to run from the same date, side by side.
h. A “consecutive sentence” is where a defendant is charged with more than one offense, and the court chooses to require the defendant to serve out each sentence, one after the other. Popularly, this is known as “stacking” sentences.
i. “Criminal contempt” is the court’s punishment of a defendant for a past act of disobedience of a court order or command. It is a new and separate criminal proceeding.
j. “Deterrence” is an attempt by the court to set conditions in a sentence to prevent a defendant from offending again. A deterrence plan requires a careful examination of the defendant’ s motives, attitude, situation, and what actions may reach the defendant’s mind to prevent a future offense. Conditions may be punitive to punish a defendant or teach him a lesson,” or they may be a form of rehabilitation.
k. A “fine” is a money penalty, set by a criminal statute, which is paid into the Navajo Nation general fund. The purpose of a fine is to deter future misconduct by assessing a monetary penalty. The court can require time payments by indigent defendants. 17 N.T.C. § 222(b) (method of payment is in the discretion of the court).
l. “Imposition” of a sentence is the court’s act of defining a sentence, stating it, and requiring it to be carried out.
m. “Incarceration” is a court order to require the Navajo Nation police or others to physically confine a person, depriving him or her of liberty or freedom of movement. The court may define the conditions of incarceration (e.g. a day sentence of eight hours of work).
n. An “indigent” is a person who, by reason of unemployment, low income, or a lack of property, cannot pay a fine or make restitution. Poverty is not an excuse to avoid responsibility to the Navajo Nation or another, so the court should explore all alternatives before releasing an individual from responsibility due to indigence. Alternatives include time payments, seeking employment, turning over property, doing work for others, obtaining sureties for a bond, or other alternatives to actual payment of money. An indigent is denied equal protection of the law only when that person is required to serve jail time for actual inability to pay.
o. A “license” is a permission by a government to do a thing, engage in an act, or conduct an activity, sometimes the document is called something else, e.g. a “grazing permit,” an “agricultural permit or lease,” etc. Where a government agency—federal, state, or Indian nation—requires official permission to do something, that is a “license which may be revoked by the court pursuant to 17 N.T.C. § 220(c).
p. A “mittimus” is an order, which remands a defendant to custody, or orders that the defendant be placed in confinement, i.e. jail. It is an order directed to an official to do something with a defendant.
q. A “multiple sentence” is the situation where a defendant is charged with more than one offense. The court has the discretion to impose a concurrent sentence or a consecutive one 17 N.T.C. § 225.
r. “Nalyeeh” is a Navajo legal term, which refers to reparation or restitution, but it has the wider meaning of compensation to a victim so thee will be “no hard feelings.” It is also a discussion of plans to build or restore relationships (“restorative justice”) which is particularly appropriate for the Navajo Peacemaker Court.
s. “Parole” is the power to release a defendant from jail, on condition, after serving one-half of the sentence imposed by the court. 17 N.T.C. § 1819. All the considerations of policy apply to parole. The court may utilize a parole board to assist the process and charge defendant assessments to pay the costs of the board.
t. A “peace bond” is a written promise to keep the peace or refrain from doing specified conduct (e.g. assault on a person or a member of that person’s family; staying away from someone) under penalty of forfeiting money or property. A peace bond can consist of money paid into court, property, or the written promise to pay a certain sum of money if the conditions are violated. The court may require sureties to promise to make payment if conditions are violated. Payment can be to the Navajo Nation, a victim, or a program (e.g. a battered woman’s shelter). Peace bonds have not been held to be unconstitutional as a violation of due process, but of equal protection, only where the defendant cannot afford a commercial bond. A bond can be commercial, where an insurance company agrees to pay, or one by private individuals who knowingly cosign and agree to pay. The Navajo Peacemaker Court can guide parties to enter into a form of peace bond, using the family and clan as the guarantors or “traditional probation officers.”
u. “Probation” is where the court imposes a sentence, but suspends all or part of it. And allows release on conditions. A defendant must serve a minimum of one-half of the total sentence of incarceration before becoming eligible for parole. 17 N.T.C. § 224. The court must set conditions in writing and the defendant must sign the conditions document, agreeing to abide by the court’s requirements.
v. A “public servant” within the meaning of 17 N.T.C. § 220(c) is any person employed as a full-time, part-time, or contract employee (including independent contractors; see also license) by an agency of the Navajo Nation, an entity of the Navajo Nation, or other program operated or controlled by the Navajo Nation. The position must not be elective (see, Navajo Nation Election Code for elective positions).
w. “Rehabilitation” is designed to address a defendant’s personal problems and thus assure the person will not offend again. It can include alcohol treatment, anger control programs, the Navajo Peacemaker Court, or any other method which addresses the defendant’s self-awareness of a problem (e.g. self-esteem, denial, minimalization [“It’s no big deal”], or externalization [blaming others or a condition such as alcoholism]) and willingness to do something about it.
x. “Reparation” is an order of the court, which requires a defendant to make a victim of injury or property damage whole for monetary losses the victim has. A reparation order is not like damages in a civil judgment, and the court may use hearsay information to set an approximate amount, which will make a victim whole.
y. “Restorative justice” is an approach to law whereby the court seeks to restore or rebuild relationships among people who are in an ongoing or continuing relationship. Such is a fundamental principle of Navajo common law and the goal of peacemaking. An offender giving an apology to the victim is an essential element of restorative justice. The court may taking the giving of an apology following an admission of guilt into account to mitigate sentence, or use a refusal to apologize upon a guilty plea or clear proof of guilt to enhance sentence.
z. “Restitution” is an order of the court to require a defendant to make a victim whole for injuries or damages. It can be full or partial compensation, depending upon the defendant’s ability to pay, and it can be in the form of a fixed sum of money, work for the victim, or work for the community. The technical meaning of the term is the return of a stolen item, but it is generally used to mean reparation.
aa. Revocation of a suspended sentence or probation is the act of bringing a defendant back before the court to defend against an accusation that person has failed to obey conditions of the suspended sentence, probation, or release. For that reason, conditions of sentence should be specific, and defendant should acknowledge understanding of them in writing. A defendant has a right to rebut an accusation he or she violated a condition of sentence, and the burden is on the defendant to show there was no violation. Revocation proceedings are swift and informal, and hearsay information may be used to find a violation revoke probation.
bb. “Sentencing considerations” are an assessment of the likelihood a defendant will offend again and the seriousness of the offense for sentencing, based on the offender’s (1) prior record, (2) family circumstances (i.e. dependents), (3) employment status, and (4) “any other circumstances which will aid in imposing a just and fair sentence.” The court may receive hearsay information about them, ask the defendant to disclosure the information to the court or a probation officer, and otherwise receive any information, which will guide the court.
cc. “Shaming” is a requirement that a defendant do something which will bring him to public attention as a wrongdoer (e.g. wearing special garb with a printed announcement—“I am a thief” – or having a bumper sticker—“I am a drunk driver.”) or the court doing something, which will shame the offender (e.g. require community service wearing distinctive clothing). Shaming is a cultural practice, which depends upon what will hurt the defendant by making him or her, acknowledge wrongdoing.
dd. A “surety” is a person or organization, which co-signs a bond or pledge to pay money or give over property. A surety will pay the money or deliver stated property in the event the defendant fails to do so. The conditions of a bond a surety signs should be specific as to the amount of money or identification of property, the person to whom the payment must be made, and the time for payment.
ee. A “suspended sentence” is suspension of the imposition of sentence after a finding of guilt. The court suspends imposition of the sentence of a period of time and imposes conditions to be followed or a sentence may be imposed, 17 N.T.C. § 220(b). It is like the “deferred imposition of sentence” in many state codes, where the court withholds sentencing for a period of time to monitor conduct and successful completion of “another chance.” When imposing a suspended sentence, the court should warn the defendant of the maximum penalty allowed by the statute (including cumulative or “stacked” sentences) and set a time period for suspension of imposition of the sentence and impose conditions. It should be a “reasonable” period of time. If the defendant violates the conditions, the court may bring him or her back in and then set a sentence. If the defendant complies with the conditions, he or she may get an absolute release at the end of the term. The release may simply be doing nothing if the defendant complies.
ff. “Talk out problems” is a traditional Navajo justice method which is designed to address denial (e.g. “I don’t have a drinking problem”), minimalization (“It’s not big deal”) and externalization or blaming (“She deserved it” or I can’t help it, I’m an alcohol”). People have bad attitudes about themselves, others, or the legal system, and “talking out” educates people on their roles and responsibilities.
gg. A “traditional probation officer” is a Navajo common law concept. It is that when an offender injures another, the offender’s clan is responsible to assist with the payment of nalyeeh and help conclude a plan by consensus. The family and clan then assume responsibility to assure future good conduct by the offender.
1.4 Victim Bill of Rights.
Victims of crime in the Navajo Nation have a right to:
a. participate in the criminal justice system
b. recover a judgment for damages in a civil action against the criminal, accessories, or negligent third-party defendants or to receive a civil judgment for damages in the criminal process:
(1) Compensation may include benefits from programs to aid crime victims.
(2) The court should provide for restitution or nalyeeh for victims.
c. be free of intimidation
d. share in profits from exploitation of the criminal’s version of the crime
e. seek peacemaking
f. receive special treatment and consideration if the victim is elderly, a child, disabled or is subjected to rape or domestic violence. Victims of such offenses are particularly vulnerable, and they should receive special attention in the criminal law process.
See, James Stark and Howard W. Goldstein, The Rights of Crime Victims 11 (1985).
The court should enforce its judgments and use incarceration where a defendant violates the trust of the court and fails to obey an order or condition of sentence.
The court shall presume that incarceration or jailing is not an appropriate sentence unless the offense caused serous bodily injury to a victim or the defendant will not give assurances of good conduct in the future. The court should impose a jail sentence where such is needed to protect persons or the public at large.
The court may impose incarceration where such is necessary to address serious or violent crime, protect victims, protect the public in general, or otherwise implement the goals of criminal law. The court should oversee the enforcement of a sentence of incarceration.
1.6 Right of Allocution.
Before the court passes or imposes any sentence, a criminal defendant has a right of Allocation. That is the right, personally or through counsel, to inform the court of special circumstances which may mitigate or lessen the sentence. It is the right to “beg the court for mercy” when imposing sentence.
It is the right to say, “I’m guilty, but….” The court should affirmatively invite each defendant to speak to the severity of the sentence. The court should tell the defendant the maximum penalty involved and the possible consequences and allow the defendant to respond. Defendants should be urged to address their role in an offense and the impact of their conduct on victims or themselves (e.g. in “victimless” crime) before sentence is imposed. The court should make the opportunity to speak clear and put the fact that the defendant has waived the right to Allocution after an opportunity to exercise it on the record.
When the sentence is imposed, the court should make its conditions a contract between the defendant and the court by putting the conditions in writing, explaining them to the defendant, and making the defendant agree to them in writing. The requirements should be clear, precise and explained well. The court may require a probation officer to counsel the defendant and record the fact of that counseling so a defendant will not have the excuse that he or she did not understand the sentence.
1.7 Conditions of Sentence And Permanent Orders.
Court may require full or partial restitution or reparation (nalyeeh), impose a civil penalty, and place reasonable restrictions upon convicted defendants when imposing sentence, suspending a sentence or place a defendant on probation. Orders of restitution, civil penalties, or other conditions of sentence which require the payment of monies, (the surrender or delivery or property) or the performance of an act, are permanent civil judgments.
1.8 Payment of Actual Damages.
Where a criminal statute has a requirement that the defendant pay actual damages, the court may enter an order assessing such damages as a final civil judgment.
1.9 Revocation of Probation or Imposing Suspended Sentence.
The courts may, upon the violation of a condition of probation or a suspended sentence, revoke probation or impose a sentence, following notice and an opportunity to be heard.
1.10 Use of Contempt Power.
a. Criminal contempt. Where a defendant disobeys a condition of a sentence, the court may use its criminal contempt power to impose an appropriate punishment to punish past disobedience to a court order.
b. Civil contempt. Where a defendant disobeys an order or condition of sentence for the payment of restitution, reparation, or actual damages (nalyeeh), the court may use its civil contempt power to incarcerate the defendant until such time as the order is obeyed.
c. Ability to pay. Prior the imposition of jailing for contempt, the court must determine that the individual had the ability to pay or to carryout the order.
1.11 Use of Criminal Statute.
Where a defendant disobeys an order entered as part of a criminal sentence, which person may be charged with the offense of obstructing justice.
1.12 Mental Commitment.
Where a defendant is, by clear and convicting evidence, a danger to self or others as the product or result of a mental disease or defect, the court should commit the defendant for involuntary mental commitment (where available).
II. INTERPRETATION OF POLICY
2.1 Principle of Interpretation.
These guidelines will be interpreted liberally, to give effect to their purposes.
2.2 Standard of Evidence.
These guidelines shall be implemented using the civil standard of evidence, a preponderance of the evidence or “more likely than not,” except when a defendant’s right against self-incrimination, right to due process, or some other fundamental right under the Navajo Nation Bill of Rights applies.
2.3 Burden of Proof.
A defendant has the burden of proof to convince the court, by a preponderance of the evidence, that a proposed sentence or condition of sentence is unfair, prejudicial, or violates some right granted by the Navajo Nation Bill of Rights.
2.4 Legal Effect of Policy.
This policy is not a rule of court, but a uniform interpretation of sentencing standards. This policy shall not apply where it appears that any provision is contrary to the Navajo Nation Bill of Rights or the laws of the Navajo Nation.
2.5 Confidentiality of Sentencing Information.
No disclosure made by a defendant regarding his or her commission of the offense charge, or any other offense not a matter of public record for the purpose of sentencing, may be used against a defendant in any appeal of the charge or disposition. The policy, which underlies this section, is that defendants should be encouraged to fully discuss the events surrounding the offense and the factors to be considered for a sentence or pretrial diversion, without compromising the right to an appeal. No such disclosures shall be made a part of the record on appeal, nor shall any such disclosures be considered on an appeal or a petition for extraordinary relief.
2.6 Judicial Oversight of Sentences.
The court shall exercise continuing oversight over sentences to assure their completion. The court may receive reports from a probation and parole officer regarding violations of conditions and bring the defendant before the court to address them. The court may enter orders of temporary release to suspend or modify the execution of sentence to provide for treatment or rehabilitation. This is pursuant to the rule of necessity, given limited jail space, and the trial court standard that courts should enforce their judgments.
III. SENTENCING ALTERNATES
3.1 Nature of Criminal Judgments.
The court may enter permanent orders to require compensation to the victims of crime, protect victims of crime, protect the public at large, or to otherwise require an act to deal with the underlying crime. Such orders are permanent judgments and they may be enforced in the same manner as civil judgments by the examination of judgment debtor, writ of execution, criminal or civil contempt, or criminal charge for disobedience to an order of the court.
3.2 Presumption of Victim Compensation.
When entering a sentence, the court will presume that restitution, reparation, or nalyeeh shall be required, where an injury to a victim appears.
3.3 Restitution or Reparation.
a. Restitution. An order requiring the return of property taken from a victim.
b. Reparation. A form of restitution, in which the defendant is required to pay all or part of the actual damages of a victim or party injured by the criminal act. The “victim” or “party injured” may include entities such as businesses, school districts, Navajo Nation agencies or entities, etc.
c. Ability to pay. The court, when imposing an order of restitution, must consider the defendant’s family circumstances, employment status, and ability to pay as factors. The court may also consider time payments, a reasonable future ability to pay, including the defendant’s ability to seek and find work within a reasonable period of time, obtain assets to pay restitution, or post a bond.
(1) Requiring Employment. The court may require a defendant to obtain employment to pay restitution, and require periodic reports on employment status.
(2) Restitution upon condition. The court may enter a conditional order of restitution, requiring payment upon obtaining employment or receiving assets such as tax refunds, cattle or sheep sale process, craft sales, inheritance, etc.
(3) Work instead of money payment. The court may require that a defendant do work for a victim or injured party, in lieu of a money payment, where the defendant has no income. A defendant may also be required to perform public service, including work and labor, where it would be inappropriate to require actual services for a victim. Public service may be in the form of doing work for a chapter, public agency, or nonprofit agency, organized for the public good.
(4) Surrender, sale or pawn of property. The court may receive or allows a defendant to delivery property (e.g. sheep, horses, personal possessions) to a victim, sell or pawn his property, or assign other interest (e.g. wages, grazing permit or land interests) to assure restitution.
3.4 Actual Damages.
a. When imposed. When a criminal statute provides for an assessment of “actual damages,” the court may require appropriate conditions of probation or suspended sentence to assure the payment of such damages and enter a civil judgment for the full amount of actual damages.
b. Ability to pay. A civil judgment may be entered regardless of the ability to pay.
c. Enforcement. The court may issue a civil execution to enforce a civil judgment under this provision.
3.5 Association With Persons.
The court may enter an order prohibiting the defendant to associate with specific persons, as a condition of a suspended sentence or probation:
a. Victims. The court may enter an order prohibiting a defendant from associating with any victim or potential victim who may be associated with the offense or its surrounding circumstances. Such may include a spouse, neighbors, workers in offices, or other class of persons who may be endangered by the defendant.
b. Co-defendants and Co-conspirators. The order may prohibit a defendant from associating with any other person connected with the offense, or any group, such as an organized or informal gang.
c. Family or relatives. Where requires to rehabilitate the defendant by removing him or her from associations connected with the offense, or to protect the family or relatives from future misconduct, the court may enter an order prohibiting the defendant from associating with members of the family or relatives by blood, affinity (marriage), or clan.
3.6 Geographical Areas.
a. Avoiding specific areas. The court may enter an order requiring a defendant to stay away from specifically defined areas associated with the offense or with a pattern of criminal conduct.
b. Leaving specific areas. Where such is required for the habilitation of the defendant, or to protect other persons, the court may require a defendant to leave a specific geographical area or remain away from that area for a fixed period of time.
c. Balancing of interests. When a court enters an order requiring a defendant to avoid or leave a specific area, where the defendant’s home is in that area, the court shall consider the defendant’s right to a home for rehabilitation or the protection of others. The court may consider the potential of danger to others or the potential of the commission of a similar crime in the future on the basis of the defendant’s criminal record, addictions, associations, pattern of conduct, or other reasonable factors.
3.7 Alcohol And Drug Use.
a. Possession of alcohol or drugs. The court may enter an order prohibiting the defendant from possessing alcohol or drugs in any place, within or without the Navajo Nation.
b. Use of alcohol or drugs. The court may, as a condition of probation or a suspended sentence, prohibit the defendant from consuming alcohol or drugs in any place, whether within or without the Navajo Nation.
3.8 Possession or Use of Firearms or Weapons.
The court may prohibit a defendant from possessing or using any firearm or weapon, and may require the surrender of any firearm or weapon in his possession for the term of a sentence. The court may also order the forfeiture of a firearm or weapon pursuant to 17 N.T.C. § 220(c).
3.9 Consent to Search or Detention by Police.
The court may require, as a condition of probation, parole, or a suspended sentence, that the defendant submit his person, vehicle, or home to a reasonable search, or that he be temporarily detained for questioning regarding his conduct. This condition does not permit questioning about other offenses, unless the defendant waives his right against self-incrimination.
The court may require a defendant to submit to alcohol, drug or mental testing during the period of suspended sentence, probation or parole.
The courts may enter appropriate orders for the public identification of a defendant as having been convicted of an offense for the purpose of shaming. Orders may include provisions to release the fact of conviction and the sentence to news media, require the defendant to perform public work in dress which identifies as a convict (e.g. work in jail uniform or other identifying garb), using a bumper sticker which identifies an offense, or any other reasonable method of showing that the defendant has committed an offense against a person or the Navajo People.
3.11 Rehabilitation Programs.
a. Entering programs. A court may require a defendant to enter any rehabilitation program, whether within or without the Navajo Nation, reasonably associated with his offense, rehabilitation goals, background or conduct.
b. Completing programs. A court may require a defendant to successfully complete a rehabilitation program as a condition of probation or a suspended sentence.
c. Ability to pay. The court shall consider the defendant’s ability to pay when imposing a rehabilitation program sentence, as well as the availability of programs with fee waivers.
d. Reports. A defendant may be required to report to probation and parole officers regarding the progress and completion of a rehabilitation program or execute a release, which will authorize a report to the court, by such a program. The court is authorized under the [p]rovision of the U.S. Privacy Act, to directly receive information in the hands of federal or federally funded programs and also by means of signed authorization. The defendant’s failure to report as required or to use reasonable means to obtain a program report is a violation of the conditions of sentence.
3.12 Good Conduct and Avoiding Known Criminals.
The court may require, as a condition of probation or a suspended sentence, that the defendant conduct himself or herself in a lawful manner, and that he or she avoid association with known offenders.
3.13 Costs of Prosecution, Defense, or Public Programs.
The court may, considering the defendant’s ability to pay, require a defendant to pay all or part of the costs of prosecution or defense of the charge, or make payment to a public fund for restitution and reparation for injuries to Navajo Nation and the public at large.
3.14 Bonds and Sureties.
The court may require a defendant to deposit a cash bond or securities or obtain sureties to assure payment of restitution or compliance with conditions of sentence. The court may require a defendant to obtain family member sureties to make written assurances of payment or supervise the defendant to keep the peace in the future. Family member sureties voluntarily agree to assure that conditions of sentence are observed, but they should be fully warned of the financial or other consequences if conditions of sentence are not obeyed by the defendant. The court also has the power to impose a peace bond. A “peace bond” is monies or property deposited into court to assure that the defendant will keep the peace in the future or not repeat the conduct which brought the defendant before the court. Upon a repeat of the prohibited conduct, the money or property may be forfeited to the Navajo Nation, a victim, or a program (e.g. a battered woman’s shelter). The court may require sureties to co-sign a peace bond.
3.15 Cancellation of License.
The court may cancel any license issued by the Navajo Nation, which pertains to the defendant’s conduct (e.g. a business license where the business is used for bootlegging; a grazing permit where the defendant’s violent conduct is associated with grazing conflicts), or any license issued by a tribal, federal or state government (e.g. an agricultural permit or driver’s license). The court may require the surrender of a license document, inform the agency of the cancellation of the license, or order the impoundment of the property used to exercise license privileges.
3.16 Removal of Non-Elected Public Servant from Office.
The court may remove any unelected public servant from office as part of the sentence. 17 N.T.C. § 220(c).
a. Property Subject to Forfeiture. The court may order the forfeiture and sale of any property involved in a criminal offense, including:
1. Vehicles used to transport illegal alcohol, drugs, or contraband, as defined by a criminal statute;
2. Interests in real property, including fixtures or buildings, where the real property is used to conduct illegal activities;
3. Firearms and other instruments or tools used for the commission of the offense;
4. Proceeds of the offense, including currency, coin, accounts, or other forms of wealth; or
5. Any other property linked or tied to the commission of a criminal offense.
b. Title irrelevant. Ownership of title of the property to be forfeited is irrelevant. Property used for or in conjunction with the commission of an offense is forfeitable under 17 N.T.C. § 220(c).
c. Considerations. In determining whether to decree a forfeiture, the court should take into considerations a balance of hardships to deter crime or consider the impact of forfeiture on innocent third parties, including:
1. Relatives who have an ownership interest in the property;
2. Relatives who do not have an ownership interest but who use the property for basic needs;
3. Co-signers on credit or retail installment agreements for the property who may be held liable for payment;
4. Creditors with interests in the property; or
5. Any other innocent third person who may be injured by a forfeiture.
Where there is an innocent third party, without participation in or knowledge of the use of the property for criminal activity, the court may order a transfer of property to that person other arrangements to deprive the defendants of use of the property in the future.
3.18 Other Conditions.
The court may impose any reasonable condition related to the rehabilitation of the defendant or the protection of others, as a condition of probation or a suspended sentence.
4.1 Victim’s Rights.
The court should require the prosecutor or probation and parole officer to interview the victim to obtain that person’s views on plea bargains, proposed sentences, and the extent of the victim’s damages, for restitution, reparation, or actual damages. The court shall, directly, by allowing a victim to speak to sentence, or through its probation staff or prosecutor, attempt to elicit the views of the victim, as well as injuries suffered, for the purposes of sentence. The court may order “blanket restitution” in a judgment, which is a general order to make restitution and require the defendant to make arrangements to ascertain the amount of restitution the amount and method of payment should be made an order of the court. When proof of damages is not readily available, the amount to be fixed in a court order may be determined at a later date. The defendant should have the right to complaint of the amount of restitution, working with the court or a probation officer. Blanket orders should be under the supervision of a probation officer to assure that the amount of method of payment is negotiated and, if negotiation fails, the matter comes back before the court for clarification and the setting of a specific restitution amount and mode of payment. A restitution order must be specific before a defendant is punished for failure to pay it. A defendant may be punished for failure to make reasonable arrangements for restitution.
4.2 Pretrial Diversion or Deferred Prosecution.
The court should consider, upon the recommendation of the prosecutor, advice of the probation staff, and consent of the defendant, a plan for diversion of the defendant before a determination of guilt.
a. Waiver of rights. Prior to approving a diversion order, the defendant must waive the right to a speedy trial, and any other right otherwise provided by law, where a waiver will be required for successful diversion. Waivers must be in writing.
b. Restitution, preparation, or actual damages. Any diversion order must take into account the necessity for compensation to victims.
c. Consultation with victims. Any diversion order must take into account the need to compensate or protect any victim of the offense, or persons impacted by the defendant, considering his or her record.
d. Diversion by Prosecutor. A prosecutor may, after the filing of a charge, agree to defer prosecution on agreed conditions with a defendant. The prosecution must obtain a waiver of speedy trial rights for a specific period of time and follow up on the conditions. The court must be advised of the period of deferred prosecution to tickle the deadline for dismissal or enforcement. Where there is diversion through the Office of the Prosecutor, the defendant may waive the initial appearance in court and a plea. The court must be advised of the waiver, and a “not guilty” plea will automatically be put on the record for future disposition.
4.3 Summary Imposition of Sentence.
a. When. Upon acceptance of a guilty plea, or upon the entry of a judgment of conviction, the court may immediately enter sentence where there is sufficient information regarding victim’s rights, the rehabilitation needs of the defendant, or any other matter necessary for imposition of sentence.
b. Considerations. In considering a summary imposition of sentence, the court must weigh factors such as the nature of the offense, possible injury to others, and the defendant’s needs for rehabilitation, when considering his or her prior record, the presence or absence of alcohol or drug use, violence to others, etc. Where there is insufficient information regarding such matters, including the defendant’s ability to pay restitution, the court should delay the imposition of sentence, pending a report by the probation staff.
4.4 Deferring Imposition of Sentences.
a. Pending probation staff report. The court may defer the imposition of sentence for a reasonable time to allow the court probation staff to research and submit a presentence report.
b. Time. Unless unusual circumstances regarding the ability of the probation staff to ascertain the defendant’s background or damages to victims exist, sentencing should be deferred for no more than twenty (20) days.
c. Presentence Diversion. The court may, upon the consent of the defendant, extend the period of time for the imposition of sentence, pending the outcome of a presentence diversion program.
d. Release. The court may, considering the nature of the offense, release and defendant or remand the defendant to jail pending the presentence report.
e. Time to Defer Sentencing Pending Report. Where the defendant is found guilty and is in custody, the probation staff report must be filed with the court no later than ten (10) days after the date the court orders, a report. Where the defendant is not in custody, the report must be filed no later than twenty (20) days following the continuance for sentencing.
4.5 Use of Peacemaker Court When Deferring Imposition.
The court may utilize the Peacemaker Court to obtain recommendations regarding sentence or a diversion plan.
4.6 Dismissals Following Presentence Diversion.
The court may, upon the motion of the prosecution, dismiss a criminal action upon the successful completion of a presentence diversion program, including full payment of restitution to victims, completion of a rehabilitation program, and full satisfaction of the terms and conditions of a diversion plan. The defendant’s record shall reflect that charges have been dismissed, despite any plea or finding of guilt. The court may also use the suspended imposition of sentence procedure and, upon a satisfactory fulfillment of conditions, dismiss the charge. Given the fact there has been a finding of guilty, the record will continue to reflect a conviction.
V. USE OF THE NAVAJO PEACEMAKER COURT
5.1 Use of Peacemaker Court before Determination of Guilt.
a. When to Use Peacemaking. A criminal case may go to the Navajo Peacemaker Court before a charge is filed, after filing but before arraignment and plea, after plea, prior to the imposition of sentence or after the imposition of sentence.
b. Consent of defendant. Where there is peacemaking prior to the entry of a guilty plea by the defendant, the defendant must consent to waive rights to enter a plea, have a speedy trial, have consent present during peacemaking, and assert the privilege against self-incrimination. The court will also grant use immunity for any statement made during the course of peacemaking.
c. Consent of Victim. The victim associated with the charge(s) must either specifically agree to peacemaking in advance and there must be an opportunity for a peacemaker or someone to explain the process so the victim can intelligently choose to participate or reject peacemaking.
d. Nature of the Offense. The court should consider the nature of the offense prior to remanding or allowing peacemaking. Some cases may not be appropriate for pretrial diversion, including situations where parties may be intimidated by the defendant (e.g. family violence, elderly victims, etc.) The court may choose in such cases to require a finding of guilt by trial or plea and use the Peacemaker Court to recommend a sentence or enforce a sentence after it is imposed.
e. Peacemaker’s Fee. A condition of pretrial diversion is that the defendant, or someone on behalf of the defendant, shall pay the peacemaker’s fee and any costs of peacemaking.
5.2 Peacemaking After the Entry of Plea but Before Trial.
The court may, upon the motion of the prosecutor, defendant, victim, or the court’s own motion, refer a matter to peacemaking after the entry of plea but before a finding of guilt.
5.3 Other Orders.
Where imposed as a condition of probation or a suspended sentence, all other terms and conditions of a sentence, other than restitution, reparation, actual damages, required payments, or permanent orders, expire upon completion of the term of the sentence.
5.4 Peacemaking After a Finding of Guilty for Sentencing.
The court may, on the motion of a party or victim or its own motion, refer a matter for peacemaking to suggest a sentence by consent. The court may reject a sentencing recommendation of peacemaking where such is not in the interests of the victim or the public or such is unrealistic. Peacemaking agreements for sentence should be specific, concrete, set out obligations in a clear way, fix deadlines, and otherwise be enforceable by means of revocation, contempt or otherwise.
5.5 Peacemaking After Sentence.
The court may use the Navajo Peacemaker Court to carry out conditions of sentence, monitor the sentence, or prepare the defendant for a rehabilitation program. For greater precision, the court may use the Navajo Peacemaker Court to break through the barriers of denial, minimalization, externalization, and uniformed or unrealistic attitudes toward a victim or the system. The court may impose a suspended sentence, conditioned upon successful peacemaking or a report from the Peacemaker Court. The court may use the Peacemaker Court to impose conditions as part of the parole process.
5.6 Use Immunity.
In addition to any waiver of the right of self-incrimination, the defendant shall have use immunity for anything said during the course of peacemaking. For greater precision, nothing said by the defendant during the course of peacemaking may be used as an admission or as evidence to prove guilt. Any type of peacemaking cannot be used as evidence to prove guilt. No prosecutor or law enforcement officer shall have access to peacemaking tapes or materials under the rule of Navajo Nation v. MacDonald, Jr., nor may the prosecution or defense in any way use information disclosed during peacemaking for investigation or leads to additional evidence. Following a peacemaking agreement or court order entered on such an agreement, materials and tapes may be used to rebut a defendant’s assertion he or she was coerced, did not give voluntary or knowing consent, did not understand the agreement, etc.
The court may, at any time, continue a criminal case to refer the matter to peacemaking. At all times prior to the plea, the defendant must waive the right to a speedy trial, or the peacemaking must take place in sufficient time to assure that speedy trial considerations will not attach. The defendant must waive the right to self incrimination or be clearly advised that if he or she participates in peacemaking, such is a waiver of the privilege.
5.8 Right to Counsel.
The defendant waives the right to have counsel present during peacemaking by consenting to peacemaking. If the defendant does not agree to waive counsel, peacemaking will conclude and the case will be returned to court.
5.9 Disposition by The Court.
a. Report to the Court. At the conclusion of peacemaking, the peacemaker must report the outcome to the court. If peacemaker must report the outcome to the court. If peacemaking fails, the case is returned to court. If the parties make an agreement, the court must approve it by noting approval or entering a court order. The report is in the nature of a sentencing recommendation, and the court need not adopt findings of fact as part of its final order. The court may adopt the report or enter a separate sentencing order. The court may adopt the agreement of the parties as an enforceable order in place of a criminal sentence and dismiss the charge. The agreement may be separately enforced, utilizing the Rules of the Navajo Peacemaker Court.
b. Specificity of Agreements. In criminal actions, specific agreements in peacemaking are required. For example, it is not sufficient to say that the defendant must get “alcohol counseling.” It is not sufficient to say the defendant “will make restitution.” For alcohol counseling, the agreement must be to (1) go to a specific program, (2) pay any required fees, (3) attend all scheduled sessions, (4) waive privacy rights for a report to the court, victim or peacemaker, (5) cooperate and complete the required program, and (6) report or ask for a report of the outcome to the court, the victim, or the peacemaker. For restitution, the agreement should state (1) the amount or form of restitution (i.e. delivery of property, work or action), (2) the person to whom it will be paid, (3) the time for payment, with a deadline, (4) any sureties (i.e. the “traditional probation officer”), and (5) any other detail of the agreement.
c. Monitoring. Peacemaking agreements must arrange monitoring by someone to assure follow up and completion. A monitor can be a probation officer (with the consent of the court), the peacemaker, or any other designated person who may be relief upon to report completion, noncompliance or failure to the court or other official.
The acts, which the defendant is required to perform, must be specific, understandable, and capable of performance. Where treatment or rehabilitation programs are involved, the plan must (1) state the name of the program and its address, (2) the kind of treatment involved, (3) application or completion dates, (4) compel the defendant to comply with all program requirements and attend all meetings or appointments, (5) the requirement to sign an authorization for release of information by the program, (6) any requirement to report progress, and (7) other specific conditions. Peacemakers must counsel the defendant that a failure to comply with conditions or cooperate with monitoring will result in a report to the court and the maximum penalties allowed by law.
d. Acceptance or Rejection. The defendant must be advised that the court at all times retains the authority to refuse to accept a peacemaking decision. If peacemaking is prior to imposition of sentence, the court may reject a peacemaking agreement and impose the maximum penalty permitted by law. If the peacemaking is during the course of a suspended sentence or probation, the court may find that the peacemaking agreement does not satisfy the conditions of the sentence. The court retains the power to suggest additional provisions in a peacemaking agreement and ask the defendant to agree with them. The court may require a probation officer to work with peacemakers to suggest satisfactory agreement provisions. Where there is a guilty plea, the court may consider whether an agreement achieved in peacemaking fits the ends of justice. The parties to peacemaking must appear before the court for its ruling upon the acceptance, rejection, or modification of the peacemaking agreement.
e. Dismissal. If the court is satisfied with the peacemaking agreement, and the agreement is complete or follow up not involving punishment through sentence is assured, the court may dismiss the charge, with or without prejudice. If the defendant is under the terms of a suspended or deferred sentence, the court may terminate the sentence if conditions are satisfied.
5.10 Sentencing Evidence.
a. Use of hearsay evidence. The court may consider hearsay evidence for presentence diversion or the imposition of sentence. Normal rules of evidence do not apply to sentencing proceedings.
b. Restitution, reparation and damages. The court may consider any reasonable evidence regarding the amount of restitution, reparation, or damages to be paid, including the recommendations of a presentence report or summary assessments of damages. Any unresolved damages may be deferred for consideration by the Peacemaker Court, Small Claims Proceedings, or a civil action, and the imposition of an order of restitution does not prohibit a later civil action for damages.
c. Self-incrimination. Upon a determination of guilt by plea or judgment, the defendant may be required to disclose any circumstances regarding his or her situation, including prior convictions, income, assets, debts, family need and condition, habitual use of alcohol or drugs (not including specific acts not charged, which may constitute an offense), or character. Where required, the defendant must sign any authorization for release of information. These disclosures are required so long as they do not involve self-incrimination regarding a separate offense.
d. Burden of proof. The defendant has the burden to contest any proposed condition of presentence diversion or sentence, including the amount of any restitution, the ability to pay restitution, or any condition of a protective order.
e. Predicting dangerousness. The court may rely upon any reasonable evidence to predict dangerousness or the future commission of a crime, including the defendant’s past criminal and social records, denial of guilt or an underlying problem associated with the offense (e.g. alcoholism), and overall behavior.
6.1 Restitution or Reparation Orders.
A court may enforce an order of restitution or reparation by any of the following means:
a. Revocation of probation. The court may revoke probation during the term of sentence for failure to pay restitution.
b. Imposition of suspended sentence. The court may, during the period of a suspended sentence, impose and execute the suspended sentence for failure to pay restitution.
c. Criminal contempt. At any time following the imposition of sentence, including the time after the sentence expires, the court may punish disobedience to restitution or reparation orders as a condition of sentence by means of criminal contempt.
d. Civil contempt. At any time following the imposition of sentence, including the time after the sentence expires, the court may enforce restitution or reparation orders of sentence by means of civil contempt, i.e. jailing the defendant until he or she obeys the order.
e. Criminal charges. The court may refer a matter to the prosecutor for a criminal prosecution for obstruction of justice, where disobedience of the order is appropriate for criminal charging.
6.2 Assessments of Actual Damages.
Where the penalty of an offense includes payment of actual damages, the judgment constitutes a civil judgment, which may be enforced by the means set forth in [1.10] or by means of civil execution.
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