Tribe: Gila River Indian Community of the Gila River Indian Reservation
Chapter 4 (Sentencing)
Revisions to Chapter 4, Sentencing, included the addition of several sections including: Pretrial
Services (5 .402); Inmate Work Crew requirements(5 .403); clarification of restitution process and
procedure (5 .404); clarification of diversionary prosecution for defendants that meet certain
criteria (5 .405 ); clarification of probation procedures, probation discovery and violation hearings
(5 .406); creation of a simpli fied sentenc ing scheme (5.407); provisions for work release (5 .408); expungement (5 .409); funeral release (5.41 0); clarification allowing concurrent
prosecutions( 5 .403 ); and clari fication for eligibil ity of commutation (5.4 1 1 ).
In October, 20 1 1, LSC directed that sentencing should include presumptive sentences, including
( 1) a sentence range that takes into consideration the severity of the offense and the defendant’s
criminal history; (2) allowing the sentencing j udge to deviate from the presumptive range with
written j ustification for departure, stating why the sentence i mposed is more appropriate or fair
than the presumptive sentence (typically based on mitigating and aggravating factors); and (3)
providing for appellate review when the sentencing j udge departs from the presumptive range.
In January, 20 1 2, LSC directed that the Criminal Code revisions i nclude separate sentencing
guideli nes.
In May, 20 1 2, LSC approved the drafting of m isdemeanor and felony offenses chargeable as
either misdemeanor or felony offenses. In November, 20 12 LSC reaffirmed under 5 .407.A that
when an offense is punishable as either a m isdemeanor or felony the offense would be
considered a misdemeanor except that it may be charged as a felony offense if either ( 1) charged
with one or more aggravating factors identified in 5 .407.C.7(a)-(aa) or (2) charged with an
additional element in the offense that would not be present if it had been charged as a
misdemeanor (the additional element would be identified in the body of the offense; e.g., under
5. 1 1 03.B. payment received exceeds $100 in any consecutive 6 months), and provi ng either the
aggravating factor or additional element beyond a reasonable doubt or admitted by the defendant.
The purpose of this approach was to have the Office of the Prosecutor review and intentional ly
decide whether to charge an offense as a felony by determining and charging any aggravating
factors or including an additional element i ncluded in the offense, which would result in more
efficient use of Community resources and would preserve aspects of the judicial system that the
Community has traditionally operated under with Community Court elected judges, and avoiding
any violation of due process or equal protection rights for defendants.
Under 5 .407.A, for an offense that is punishable as either a misdemeanor or felony offense, one
of two factors as described in 5 .407.A. must be present and alleged on the criminal complaint.
To allege a felony offense under 5.407.A. either an aggravating factor as identified in
5.407.C.7(a)-(aa) is alleged on the criminal complaint or there is an additional element which is
described in the offense and charged on the criminal complaint. While 5.407.C.7 prohibits the
use of evidence necessary to prove an element of an offense and the use of that same evidence to
prove any factor in aggravation for sentencing consideration, it is intended that if a defendant has
two prior criminal convictions (5 .407.C.7.e) or probation revocations (5 .407.C.7.v), then under
5.407 .A. one of the prior convictions or revocations can be used to charge the offense as a felony
offense and a different prior conviction or revocation can be used as a factor in aggravation for
sentencing. Also in May, 201 2, LSC directed the formation of a separate sub-committee within
the TLOA Workgroup to develop sentencing guidelines (which inc luded representatives from the
Community Court, Office of the Prosecutor, Defense Services Office, and Office of the General
Counsel) and further directed that the guidelines should be less mandatory, allowing the judge to
depart from the presumptive sentence upon providing written j ustification of compelling reasons,
and that defendants would not be al lowed to appeal their sentence based on a j udge’s dec ision to
order a presumptive sentence or a sentence in excess of the presumptive sentence. In November, 20 12 LSC directed that policies and procedures which might be created as a result
of the revised Criminal Code do not need to be approved by Community Council but should be
reviewed prior to implementation of the policies and procedures by the LSC; that the ratio for
credit for inmate work credited towards early release should be revised as they considered that 8
hours work credited for one 24 hour day of incarceration was too generous and they were
concerned about the victims; they directed that diversionary prosecution should not be allowed
for felony offenses; and they directed that for probation violations (5 .460.H.2.) time should be
tolled from the date of the violation or when the offense occurs.
For clarification of I nmate Work Crew Requ irements (5 .403) in conj unction with Commutation
(5.4 1 1 ): The accrual of credit for i nmate work crews accrues at a rate of 24 hours of work (three
8 hour days) for one 24 hour day of incarceration and may be considered after an inmate has
served three-fourths of his sentence and meets the other criteria in 5 .403 .E. An inmate
incarcerated for a misdemeanor offense may apply for commutation at any time, having met the
requirements in 5 .4 1 1 .A; however, any work credit should not be considered until after the
inmate has served three-fourths of his sentence as provided under 5 .403 .E. An i nmate
incarcerated for a felony offense may apply for commutation after serving half of his sentence,
having met the requirements in 5 .4 1 1 .B; however, any work credit should not be considered until
after the inmate has served three-fourths of his sentence as provided under 5 .403 .E.
Given the direction by Community Council for misdemeanor offenses to become effective
January 1, 20 14 and felony offenses to become effective May 1, 20 1 4, the fol lowing revisions
were made to allow different effective dates:
1. For those offenses (homicide, aggravated assault, kidnapping, sexual assault, sexual
abuse, sexual conduct with a minor, molestation of a child, incest, and aggravated
burglary), which wi ll only be chargeable as felony offenses staring on May 1, 20 1 4, a
new subsection was added prescribing a misdemeanor penalty effective only during the
period of January 1, 20 14 through April 30, 20 1 4, and the felony offenses would then
become effective May 1, 20 1 4. Effective May 1, 20 1 4, there will no longer be
misdemeanor penalties for said list of offenses. These offense sections intentional ly do
not fol low the typical formatting of other offense sections (misdemeanor penalty section
followed by felony penalty section) to maintain consistency in the cross-references in
sentencing sections.
2. Sentences exceeding one year, as regulated in Section 5 .4 1 2.F, wi ll not be authorized
until May 1, 20 14 in order to allow the j ail to obtain approvals from BIA for long term
incarceration as required under the TLOA. […] Chapter 7 (Offenses Against the Family)
The TLOA Workgroup initially questioned whether Adultery (5. 702) should continue to be a
criminal offense and whether other j urisdictions include this offense; other states and tribal
jurisdictions do have this as an offense. On November 8, 20 1 2, the LSC directed that the offense
of Adultery wi ll remain in the Criminal Code. Adultery (5 .702) was revised to remove the
abil ity for a husband or wife to initiate a prosecution since that language conflicted with Section
5 . 1 502, Prosecutorial authority to initiate or dismiss offenses.
Criminal Nonsupport (5.703) was revised to clarify the unavailabil ity of certain defenses
including no defense for fai lure to provide support to a spouse or child(ren), and was also revised
to includes an affirmative defense that the person was unable to provide for the child. The abi l ity
for an individual, other than a representative of the prosecutor’s office, to initiate a prosecution
under Criminal Nonsupport (5.703) was revised and removed since that language conflicts with
Section 5 . 1 502, Prosecutorial authority to initiate or dismiss offenses.
Child Abuse (5.705 ) was amended from the 2009 Criminal Code to inc lude an additional two
mental states (recklessly or negligently) of child abuse, as found in Arizona and other states.
Other revisions included a requirement that felony child abuse occurs under circumstances likely
to produce death or serious bodily inj ury, similar to language found in Arizona and Cal ifornia
child abuse statutes; however, the exception to this requirement is mental harm to a child. Harm
to a child’s mental health has been a form of child abuse in the Community since at least the
adoption of the 1 990 Criminal Code. Mental harm to a child was included as a fom1 of child
abuse and can be charged as either a misdemeanor or felony. For felony compatibil ity purposes,
mental harm to a child was incl uded in the Community’s Code as a standalone offense within
chi ld abuse and was revi sed to be comparable with Wisconsin’s statute because the Wisconsin
offense, while a felony, does not i nclude criminal elements found in either Arizona or California
child abuse statutes, which were used as the basis for the revised Community offense of child
abuse.
E lderly or Vulnerable Adult Abuse (5.706) was drafted as a new offense that includes four
mental states (intentionally, knowingly, recklessly or negligently) of abuse towards an elderly or
vulnerable adult. Emotional abuse is included in the offense of E lderly or Vulnerable Adult Abuse (5.706), which is simi lar to Child Abuse ( 5 .705 ). Felony emotional abuse of an elderly or
vulnerable adult occurs if the abuse occurs under circumstances likely to produce death or
serious bodi ly inj ury, and this is a similar requirement found in California and Wisconsin statutes
pertaining to emotional abuse of an elderly or vulnerable adult.
On November 8, 20 1 2, LSC directed Fai lure to Send M inor to School (5 .707) keep the age limits
between six and 1 6. The Education Standing Committee previously motioned to increase the age
to 1 8 ; however, this presented several possible problems, particularly for children who live
within the Community but attend school off of the Reservation where the State of Arizona’s laws
limit mandatory education until the age of 1 6.
Additional provisions were included in the offense of Contributing to Del inquency of Minor
(5 .708) to include eight situations where a person could contribute to or encourage the
delinquency of a minor.
Domestic Violence (5. 71 0) was amended from the 2009 Criminal Code and language was either
struck or added to conform with the policy that the Community is a zero tolerance community.
The offense of domestic violence, Section 5. 71 O.B. is no longer a standalone offense; however,
domestic violence ‘augments’ a specified underlying offense. Section 5.7 1 0.B. specifies the
underlying offenses of domestic violence and, instead of defining “family or household
member,” Section 5.71 0.B describes who may be a victim of domestic violence. Additional
changes included a slightly more limiting description of who may be a victim of the offense of
domestic violence, which is similar to several state descriptions, such as Arizona, and at least one
other tribal code. On November 8, 20 1 2, LSC directed that the sentencing for domestic violence
offenders should allow for more rehabil itative measures for defendants charged with a first time
misdemeanor (diversionary prosecution) and also for offenders convicted of their first
misdemeanor. Diversionary Prosecution (5.405 ) is allowed for a first m isdemeanor charge, as
found in Section 5. 71 O.G.9. Further, Section 5.7 I O.C. outlines the sentencing enhancements for
offenses augmented by domestic violence, which includes progressive enhancements via
mandatory minimums depending on whether the offense is a second or subsequent misdemeanor
offense within five years, a first time felony, or a second or subsequent felony offense within five
years of a first conviction. Police Officers, referred to in the Code as Law Enforcement Officers
(Law Enforcement Officers include both Police Officers and Rangers), are now required to
determine the predominant aggressor before making an arrest. Duties of the probation
department were struck from the Domestic Violence section and moved to Probation (5 .406.C.).
Section 5. 71 0.1. was revised to clarify that copies of court ordered restraining orders issued from
a criminal proceeding are registered with the Gila River Pol ice Department. Under Section
5.7 I O.K. the Tribal Social Services Department is required to present an annual report on
domestic violence trends to Community Council each year in working with several other
departments.
Civil Order of Protection (5.71 I) was drafted as a new section; however, much of the language is
from the 2009 Criminal Code domestic violence section. This section was separated from the
criminal offense section to ensure that civil cases are not confused with criminal cases. Section
5.71 I was kept in the Criminal Code so that a person can easily locate all information on
domestic violence in the Community Code. Additionally, Section 5.71 I includes additional information on petitions for an order of protection, as well as a new section for temporary orders
of protection pending a j udge issuing a civil order of protection. To expedite the issuance of an
order of protection, the court will issue an ex parte order of protection; a hearing will no longer
be held, unless under the circumstances provided in Section 5. 7 1 1. Orders of protection are val id
for a year as opposed to six months. Additional language prohibiting the court from issuing
mutual orders of protection was added (5.7 1 1 .£.7) at the direction of LSC. Section 5 .711.F,
Content of Civil Order of Protection, includes several additional court orders not previously
included in this section, some to match the same orders that are provided for a criminal
restraining order for consistency. In addition, Section 5.7 1 2.F. 1 2., adapted from Navajo
Nation’s orders of protection statute, was included with the intent to help the court from
unknowingly modifying another court’s decision and to promote consistency in custody and
visitation orders between courts for the benefit of fami l ies.
Emergency Orders of Protection (5.7 1 2) was drafted as a new section; however, much of the
language is from the 2009 Criminal Code domestic violence section. Section 5.7 12 was
separated from its previous section so that a person can easily determine and locate all
information on domestic violence in the Community Code. Additional ly, Section 5 .712 i ncludes
additional language that a third party may make a request on behalf of an al leged victim who is
not able to request such an order.