Banished Teenagers Still Face Prison Court Says Standard-Range Sentence ‘Inescapably Awaits’ Despite Suggestion That Island Time Could Reduce Terms

Two teenage Indians still face prison time for robbery, despite a judge’s suggestion that their banishment to remote Alaskan islands could lead to reduced sentences, an appeals court ruled Monday.

The state Court of Appeals said its order did not mean the boys had to cut short their island stints - characterized by tribal judge Rudy James as an exercise of self-discovery, atonement and possible restitution.

The teens can renew their motion for a delay of their state sentences, the court said, “so long as they act with full knowledge that following the period of banishment, a standard-range prison sentence inescapably awaits them.”

“We’re not going to be antagonistic … but we won’t throw in the towel yet,” James told The Seattle Times. “We have too many options open.”

If necessary, he said, the tribal court “would take this to the U.S. Supreme Court, let alone the state Supreme Court.” James said he would speak to a tribal attorney to determine the next course of action.

Snohomish County Superior Court Judge James Allendoerfer last summer delayed sentencing for Adrian Guthrie and Simon Roberts - 18-year-old members of the Tlingit tribe from Klawock, Alaska - while they subjected themselves to banishment by the tribe for 12 to 18 months.

Roberts and Guthrie pleaded guilty in May 1994 to the assault and robbery of Everett pizza-delivery driver Tim Whittlesey, who suffered permanent eye and ear damage in the 1993 baseball-bat attack.

The teens, 16 at the time of the attack, were charged as adults. Under state sentencing guidelines for first offenders, Guthrie faces a sentence of 31 to 41 months in prison and Roberts, who wielded the bat, a sentence of 55 to 65 months.

It was not clear whether the teens would return to Allendoerfer’s court as a result of Monday’s ruling.

“The Court of Appeals did not say they had to be sentenced immediately,” noted Deputy Prosecutor Seth Fine, whose office challenged the banishment.

“I’m certainly not in a position to know what their attitude will be if they know this (banishment) is a prelude to prison rather than an alternative to it,” Fine said.

Also Monday, Allendoerfer threw out a second challenge from prosecutors. Fine sought return of the boys to state jurisdiction on grounds that they were living illegally on national forest land and had been illegally provided with firearms.

In a ruling issued late Monday, the judge said prosecutors had not proved any willful violation of the court’s order.

In addition, he said he had been advised April 2 by the combined tribal court overseeing the banishment that “the defendants had been voluntarily relocated out of national forest lands and no longer possessed firearms.”

Allendoerfer said the “voluntary compliance is consistent with the theme of cross-cultural cooperation which is an inherent and integral part of this experiment in criminal justice.”

Fine disagreed, citing comments by some tribal judges that they are subject to no laws but their own.

And while his motion to revoke the teens’ release was rejected, he noted the tribal court’s assurances and said prosecutors had at least succeeded in removing any “immediate public danger.”

In allowing the banishment last summer, Allendoerfer told the teens he had “made no promises” and that “we’re back to square one” when they returned to his court in March 1996.

But he also said the Legislature by that time might have “modified the court’s authority to deviate from the state sentence” and that their behavior might provide him with grounds for an exceptional sentence.

That was improper, the three-judge Appeals Court panel said, “because an offender’s conduct after the crime cannot justify an exception … and … a court may not delay sentencing to see if the law will change.”