Incarceration rates among Native Americans, including American Indians and Alaska Natives (AI/AN), significantly exceed those of White populations. Research indicates that AI/AN individuals face a 38 percent higher incarceration rate compared to the national average, highlighting a critical disparity in the criminal justice system.[1] The causes vary, including historical oppression of Native people, higher rates of factors known to contribute to justice involvement among Indigenous groups (e.g., intergenerational trauma, poverty, substance use disorders[2]), and a complex criminal jurisdiction within Indian Country among the 574 federally recognized tribes.[3] At least one strategy shows promising results in reducing inequities and improving outcomes for Indigenous people: the holistic defense model.

Holistic Defense: Support for the Whole Person

The holistic defense model takes a personalized approach and considers the many factors in an individual’s life that may contribute to their involvement with the justice system. Developed in New York by the Bronx Defenders in the late 1990s, the holistic defense model is centered around an interdisciplinary team of attorneys, social workers, community organizers, and advocates who work together to address short- and long-term issues that may affect an individual’s criminal justice system involvement.

Like the Indigent Defense popularized in the 1960s and 70s, holistic defense expands the legal team’s responsibilities to ensure that the people in their program have the resources to keep them out of the justice system. The interdisciplinary team members work together to provide legal representation and assess individuals’ social needs, such as housing, employment, and behavioral health, and connect them to needed services. Addressing these underlying issues that often drive an individual into criminal activity is seen as a critical part of the defense team’s more expanded and holistic role. Success requires a constant flow of information across the team, including defense lawyers, social workers, community agencies, and others, to ensure that individuals’ full spectrum of needs are being met. Typically, this is accomplished through a shared workspace that facilitates face-to-face interactions and connections.

There are four main principles of the holistic defense model:

  1. Legal and social support services. This requires not only a robust legal defense strategy but a deep understanding of the overall needs of the community in which the defense team operates (e.g., Is there a high population of immigrants? Few job opportunities? Limited housing?) and knowledge of how to connect people with services to address these needs seamlessly.
  2. Dynamic, interdisciplinary communication. One key to the success of a holistic defense team is every member’s commitment and involvement in helping meet the needs of the individuals in their program. According to the Bronx Defenders in their Holistic Defense Toolkit: “What is fundamental to the practice of holistic defense is not so much that there is an interdisciplinary team, but that the team’s culture is one of open, frequent, and meaningful communication.”
  3. Client-centered, interdisciplinary advocates. Each member of the holistic defense team brings knowledge and skills in the many factors that may contribute to justice involvement. For instance, public defenders within a holistic defense team may have knowledge about housing challenges, and the team’s housing advocate may also bring an understanding of substance use disorders and mental illnesses. This interdisciplinary, cross-collaborative approach helps ensure everyone has the knowledge and abilities to address any issues an individual or community may have.
  4. Community connection. Community engagement is crucial to a successful holistic defense team. Being a trusted part of a community helps build connections for program participants and provides an understanding of an individual’s unique needs. “This practice derives from the realization that the advocate who is better able to relate to her client because she has spent time in his neighborhood and with members of his community will be more likely to provide authentic and effective representation,” according to the [4]

The Tribal Defenders Program: Holistic Defense in an Indigenous Community

The Tribal Defenders Office (TDO) for the Confederated Salish and Kootenai Tribes (CSKT) of the Flathead Reservation in Montana takes inspiration from the holistic defense model to provide holistic, person-centered legal representation to members of any federally recognized tribe in the Tribal Court that has jurisdiction. The TDO provides standard legal defense services for financially eligible individuals and specialized services in the spirit of the holistic defense model, including cultural mentoring, community outreach, support with landlord-tenant issues, child custody issues, other social challenges, and behavioral health and case management services.

The principles of holistic defense—treating a program participant as a whole person and resolving underlying issues to prevent justice involvement and community connection—are closely aligned with a traditional holistic restorative justice model and are a natural fit with this community. “The whole idea behind holistic defense is that the client is at the center of services. They are part of their treatment and planning team. And they are a whole person, not just their case or just their charges,” says Desiree Fox, PhD, an enrolled member of the Confederated Salish and Kootenai Tribes, a psychologist with CSKT Tribal Health, and a research partner to the TDO team. “So, we look at collateral impacts of the charges: how will this affect our client’s housing, financial aid, and employment, and how can we reduce the impact or improve those areas of our clients’ lives?”

Through 12 years of integrated practice, TDO staff have learned several lessons that have shaped their success: ensure services come first; invest in culturally relevant research and services; listen to individuals and the community and adhere to cultural safety. “Cultural safety” is described as creating physical, emotional, psychological, and spiritual safety where individuals are able to be themselves rather than feeling they have to perform, educate, mask, or defend their cultural identity.[5] From a behavioral health perspective, this often looks like connecting clients to their community traditions and the pieces of their lives that can help them stay out of justice involvement. “Cultural connectedness is very important in Indigenous communities and would be considered ‘pro-social’—the opposite of criminal—from a justice perspective,” says Dr. Fox.

The Evidence: Outcomes of the Model

Research shows that the holistic defense model reduces average sentence length, and participants are more likely to be released on recognizance compared to those who receive traditional legal services.[6] “A holistic model of public defense addresses the issues that contribute to people’s involvement in the criminal justice system and the collateral consequences of criminal charges and convictions. Providing services that address underlying needs results in improved life outcomes that predictably result in less criminal justice involvement,”[7] wrote Fox and her coauthors psychologist Ciara Hansen and TDO attorney Ann Miller in their report, Over-Incarceration of Native Americans: Roots, Inequities, And Solutions.[8] However, Fox notes truly measuring the outcomes of a program like TDO often goes beyond metrics like recidivism rates. “When we look at measures like ‘Do they have a job?’ ‘Did they go back to school?’ ‘Did they reconnect with their family?’ those can sometimes be more meaningful in a person’s journey to recovery and feeling of success than the standard metrics.”

Resources to Learn More

References

[1] Steven W. Perry, American Indians and Crime: A BJS Statistical Profile, 1992-2002 [NCJ 203097] (Washington DC: United States Department of Justice, Bureau of Justice Statistics, 2004), https://bjs.ojp.gov/content/pub/pdf/aic02.pdf.

[2] Indian Health Service, U.S. Department of Health and Human Services, Behavioral Health Fact Sheet, (2023), https://www.ihs.gov/sites/newsroom/themes/responsive2017/display_objects/documents/factsheets/BehavioralHealth.pdf.

[3] Indian Country is a legal term defined by 18 U.S.C. § 1151 and 40 C.F.R. § 171.3. Whether criminal jurisdiction (the authority to prosecute) belongs to the tribe, the state, or the federal government depends on numerous factors.

[4] More information about the Bronx Defenders Center for Holistic Defense can be found at https://www.bronxdefenders.org/holistic-defense/.

[5] Desiree L. Fox, Ciara D. Hansen, and Ann M. Miller, Over-Incarceration of Native Americans: Roots, Inequities, and Solutions, (Safety and Justice Challenge, 2023), https://safetyandjusticechallenge.org/wp-content/uploads/2022/07/OverIncarcerationOfNativeAmericans.pdf.

[6] James M. Anderson, Maya Buenaventura, and Paul Heaton, The Effects of Holistic Defense on Criminal Justice Outcomes, Harvard Law Review 132, no. 3 (January 2019):819–93, https://harvardlawreview.org/print/vol-132/the-effects-of-holistic-defense-on-criminal-justice-outcomes/.

[7] Desiree L. Fox, Ciara D. Hansen, and Ann M. Miller, Over-Incarceration of Native Americans: Roots, Inequities, and Solutions, (Safety and Justice Challenge, 2023), https://safetyandjusticechallenge.org/wp-content/uploads/2022/07/OverIncarcerationOfNativeAmericans.pdf.

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