The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform

In the American criminal justice system, individuals from marginalized communities routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peoples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for-and correcting-this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarceration of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, experiences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is nevertheless a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.