 |
|||
| A
publication of the Justice Center |
Alaska Justice Statistical Analysis Center |
||
 |
|||
|
Lisa Rieger
In his 1999 report to the state
legislature, the Chief Justice of the Alaska Supreme Court noted
the innovative circle sentencing court that has developed in
conjunction with the magistrate’s office in Kake. This example
of local initiative for greater community responsibility over
anti-social behavior reflects other restorative justice experiments
within the state, the country and the world. It has arisen at
a time when the effectiveness of justice services in rural Alaska
is being questioned. On a visit to Kake, the Chief Justice had
heard from the local residents how effective the circle had been
in dealing with problems there.
A Justice Center research team
working in Kake on legal ethnographic research funded by the
National Science Foundation was able to observe the community’s
adoption of the circle sentence process over a period of eighteen
months. What they saw was an example of a community selectively
adopting and incorporating a model which community members also
encountered in the context of the more global dialogue on justice
issues provided by statewide agency conferences.
Restorative Justice
Circle sentencing is a form of restorative justice, one of a number that have emerged over the past decade in response to demands for community and victim involvement in the justice process. These community-based projects are value-based, seeking to repair harm done and to transform communities. As described by Bazemore and Schiff in Restorative Community Justice, they range from family conferences in lieu of juvenile court—an idea started in New Zealand and exported to Australia, Oregon and other states—to circles in correctional institutions in Minnesota, to meetings between shopping center owners and shoplifters, to victim-offender mediation in this country and the United Kingdom. Some of these justice projects are designed to prevent the occurrence of offenses; others intervene after arrest but before formal charging (and, hence, are linked structurally with diversion). Still others are initiated after the formal court process has begun. Circle sentencing, reintegrative shaming and similar approaches occur after conviction, in lieu of the traditional sentencing process. While many of these experiments have arisen in small homogeneous communities, highly diverse urban centers are also using restorative community processes.
Circle Sentencing
The Justice Center researchers
observed how presentations of the circle sentencing model that
emerged in Carcross in the Yukon Territory in Canada opened discussions
for the model now in place in Kake. In Carcross, circle sentencing
occurs after conviction in the Crown court—the state court
equivalent. Rather than issuing sentence in a city courtroom,
however, the judge travels to the village to elicit community
responses to the offense and the offender. The theory behind
involving the community is that sentences will be more meaningful
if created by consensus within the community, that the interests
of the community will be better protected, and that victims and
offenders will have the best chance for healing, particularly
in situations where anonymity is not an option and relationships
must be adjusted. As one Yukon Justice Committee member involved
in circle sentencing states, “After a circle, there are
thirty probation officers in the village who know what the offender
is supposed to be doing and whose influence can be brought to
bear.” This involvement of the community has the added benefit
of the construction of positive, proactive organizations. Thus,
in Carcross, where the Justice Committee started out responding
to post-conviction sentences, the committee now also intervenes
before arrest, after arrest but before conviction, and after
probation violation. The emphasis on value-based justice offers
reconnection for victim, offender and community and includes
spirituality and emotionality in the process. The goal is a more
holistic approach to justice issues.
Crown Judge Barry Stewart and three
local Justice Committee members from Carcross, Yukon Territory
presented their model of circle sentencing to Alaska at the Sitka
Native Justice Conference in 1996, a conference organized by
the Alaska Native Justice Center to bring state and tribal justice
issues to the fore. Judge Stewart had spent a decade promoting
this model of local control over justice issues, both in Canada
and in the United States, through international dispute resolution
organizations such as the Society of Professionals in Dispute
Resolution (SPIDR). The presentation in Sitka included statistical
information confirming the effectiveness of circle sentencing
for offenders who had participated (low recidivism, high satisfaction
rates for community, offender and victim) and descriptions pointing
to the marked contrasts between the western model of justice
and the restorative qualities of circle sentencing. Circles in
Canada are used not only in minor juvenile misdemeanor cases,
but also in serious felonies, including domestic violence cases,
for offenders with long criminal histories.
Since the Sitka conference, the
circle sentencing presentation has been given at an annual magistrates’
training conference sponsored by the Alaska Court System; at
a Bureau of Indian Affairs annual providers’ conference;
in Kake at a tribe-sponsored training session; in Bethel at a
training session sponsored by the tribe with federal financial
support; and in Anchorage, through the Alaska Native Justice
Center, for juvenile justice and local justice personnel. The
Carcross group has also taken their form of restorative justice
and problem solving elsewhere in Canada and the United States—to
child protective services in Minneapolis, outside Indian reservations,
and business corporations. Thus, the model is one now being explored
at local, regional, national and international levels.
Although there is some variation,
the general circle sentencing model requires an offender’s
application for the circle and a waiver from the state justice
system. (In Carcross, the Crown judicial system ratifies the
agreement from the circle and makes it the sentence.) Carcross
requires an elder to sponsor an offender. This is set in motion
when the offender brings an offering to the elder—a traditional
incorporative activity—and obtains his or her support for
the circle. Each offender is required to develop a healing plan
and put together a healing committee, whose members will attend
the circle. Similarly, the victim develops a safety plan and
a safety committee. These individuals come up with suggestions
for the circle, which they attend. Anyone who wants to do so
may attend a circle (community members who experience the circle
also benefit from it), but what goes on in the circle remains
confidential except for what is publicly announced. A circle
may take three to eight hours. Each participant talks in turn,
holding a feather or a talking stick or other indicator of the
right to speak. The discussion goes around the circle until the
group as a whole reaches consensus about what the plan should
be. Then the offender must agree to the plan and to completing
it within a certain period of time.
Criticisms of the circle with regard
to victims have surfaced in Canada and in the Navajo peacemaking
process. The Navajo Nation has a long history of western-styled
tribal and appellate courts. However, in the early 1990s, the
Navajo Nation instituted a parallel justice system based on traditional
concepts and processes. Navajo peacemaking utilizes techniques
similar to the circle, including family and community members
as support teams, a mediation approach and the guidance of elders.
As described by Coker in “Enhancing Autonomy for Battered
Women: Lessons from Navajo Peacemaking” (UCLA Law Review
47:1, 1999), domestic violence and victims’ advocates express
concerns that much interpersonal violence flows from issues of
power and control. People fear that the circle will perpetuate
the cycle of power and domination that results in victims in
the first place. Thus, victims who are terrorized by their attackers
are often in subjugated roles (child, spouse, elder), cut off
from other support systems and vulnerable to psychological and
physical power plays. Mediation in general, and circles specifically,
do not necessarily militate against these power relations. The
actors in the mediation or peacemaking need to be aware of, and
have methods to counteract, repetitions of controlling behavior
taken into this milieu. For example, a victim may not want to
participate in a circle process, or a circle itself might not
give adequate strength to the victim to speak openly. However,
the Carcross presenters have emphasized that if the safety committee
does its job and “systems people” (state agencies)
do their jobs, these issues of power and domination should not
occur.
Kake and Circle Sentencing
In Kake, issues of sovereignty
and identity have been embedded in concerns about local autonomy
and peacekeeping; “global” ideas and resources such
as circle sentencing, described at numerous Alaska state conferences,
reflect systems once used and now in the process of revitalization
for local purposes. Thus, one can assess the impact of globalization
through observing the operation of a centralized legal system
in a diverse local community. A selective incorporation spearheaded
by legal, tribal, and economic leadership has included unique
adaptations to the demands of local clan identity.
Alaska’s multitude of statewide,
regional and federal conferences allows local program people
from communities such as Kake to interact with funding and governmental
agencies. Between October 5 and December 11, 1999, Kake tribal
government personnel attended at least ten statewide and federal
conferences on issues related to local governance, tribal operations,
and child welfare. (The Justice Center researchers also attended
most of these.)
The Justice Center researchers
observed how ideas and opportunities presented in the larger
forum, within a more global dialogue, were conveyed and incorporated
by Kake at both city and tribal council meetings following these
conferences. At two events—the magistrate training and the
conference for BIA providers—representatives from Carcross
made presentations. After this, Kake became the first Alaska
Native village to arrange for training on circle sentencing.
The tribal government of Kake—the Organized Village of Kake
(OVK) Council—invited the circle-sentencing trainers from
Carcross to provide the four-day training session in Kake. Individuals
involved in anti-social behavior control in the village (drug
and alcohol counselors, the magistrate, the chief of police,
the Presbyterian and Salvation Army ministers and OVK staff)
were the majority of those attending the training, but several
members of the general community also came and two classes from
the high school attended on the last day as well.
The particular method of conflict
resolution presented in circle sentencing seemed to resonate
for the Kake residents who participated. As might be expected,
in Tlingit Kake, the Tlingit Carcross presenters relied more
heavily on cultural references than they did in the more general
presentations offered at regional and statewide conferences.
Members of the circle were forthcoming and emotional in their
comments. The Kake magistrate reported that he and others in
his generation (he is in his 40s) had memories of sitting in
a circle to resolve family problems. There was very little formal
justice discussion; rather, the focus of those present was helping
troubled individuals and families better respond to alcohol and
drug problems and the legal problems that ensue from substance
abuse. Significantly, the group altered the model that the Canadians
presented to them to more closely reflect local priorities of
the Raven and Eagle moieties and their responsibilities. The
circle sentencing model, then, is not a blueprint that allows
only one implementation; rather, there is room for local modification.
While the basic model of the circle is to level the forum for
the actors by giving each a chance to speak as the discussion
moves around the circle, Kake instead used the keeper of the
circle role to identify representatives of the Eagle and Raven
clan and allowed them to call on speakers for each side of a
dispute. In so doing, the Kake version of the circle reincorporated
clan identification and authority. Although they stressed that
the circle was a community problem-solving mechanism and therefore
open to all, they considered it important to incorporate Tlingit
values in the way the circle was conducted. In promoting the
circle, the tribal leadership enhanced its credibility for the
community. Its broad intention is noted by its name in Kake:
“circle peacemaking.” One community member has noted
that the Kake circle peacemaking is a revival of something that
has lain dormant in the community since people began to try to
assimilate to mainstream western ways.
To date, thirty-six circles have
been held in Kake. Because offenses such as underage consumption
of alcohol that are suited to the circle process often come first
to the magistrate, the magistrate’s court, the police and
OVK social services provide referrals to circle peacemaking in
Kake—making the circles primarily a form of diversion from
prosecution. All of the circles have involved misdemeanor activity
or parental alcohol abuse. One young person who went through
the circle for a minor consuming case was surprised by how many
people attended. After everyone had spoken, he responded that
he had had no idea how many people cared about him; rather, he
had felt completely marginalized in the community. This provided
a poignant example of the way in which the circle acts to reintegrate
transgressors into the community of which they form a part. Currently,
all minor consuming alcohol cases are referred to the circle.
In another example, one of the
first circle cases, a substance-abusing mother agreed to get
treatment outside the village while family members helped with
her children. After a successful treatment program she returned
to the village, where support systems put in place through the
circle assisted her. One of the celebration circles applauded
the success of this case and emphasized that the aim of the circle
is not to condemn or even just put back to right, but rather
to honor the community and its members. According to the tribal
historian, who was the field assistant for the Justice Center
research, “each circle makes its own shape.” All the
cases that have gone through the circle have been “successful”
in the lay magistrate’s eyes.
As with other alternative approaches
to serving justice needs, the use of circle sentencing can involve
jurisdictional questions. In Kake, tribal staff avoided a jurisdictional
conflict when the local district attorney objected to a domestic
violence case going to the circle, by deciding that this particular
case was not appropriate for the circle after all. However, these
cases raise the question of jurisdictional tension between state
and tribal legal systems.
In Kake, the circle is open to
both Natives and non-Natives: everyone is considered part of
the community. This raises the question of what impact placing
locality over sovereignty will have now that Kake has chosen
such an approach to dispute resolution in lieu of a tribal court
based on political sovereignty. Other interesting developments
include the use of the circle for drug court and the designation
of the circle as the tribal court for the Organized Village of
Kake. OVK recognizes the values and possibilities of the circle
for substance abuse issues, and thus is the recipient of one
of nine new drug court planning grants for 2001. The village
intends to use the circle for its drug court once the planning
stage is over.
Conclusion
What seems to be happening is that ideas, ways, processes discussed in broad-ranging big forums are not adopted, but rather resonate with strains already present in individual communities. This seems to be happening simultaneously in many communities. Thus, one observes in this example from the Tlingit village of Kake, Alaska the ways in which a process developed in Canada, presented inter-nationally and introduced to Alaska by state, federal, and non-profit agencies reflected local processes and provided an opportunity to revitalize traditional problem-solving systems. An example of the selective incorporation of the global, “circle peacemaking” demonstrates the benefit of exposing communities to a variety of ideas that can combine with local readiness and a sense of identity in meaningful ways.
Lisa Rieger is an associate professor with the Justice Center.