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THE STORY OF PHILIP
 

        Philip, 26 years old, a member of an Indian tribe in the Canadian Northwest, while drunk, attacked a police officer with a baseball bat. This was his tenth felony offense over a 10 year period, all of which had involved violence and alcohol. On the last few occasions, Philip had been sent to prison, each time for a longer period of time.
 
        But something different happened this time, something of a restorative nature.
First, the officer ran away. Rather than shoot Philip, or risk injury to anyone, the officer, knowing where he could find Philip the next day, simply left the scene. The next day, Philip was taken into custody.
 
        When the judge arrived several days later, he was met by the tribal leaders. They told the judge that they had been debating why they had people like Philip, and why they had so much alcohol abuse, and other community problems. They told the judge that past efforts of the “Canadian system”, including sending Philip to prison, had obviously not worked. They wanted to try a different way — what they historically had known as a Tribal Healing Circle.
 
        The judge had come with one question in mind: For how long do we send Philip away this time? He agreed to the tribal proposal. He did not know that instead of a two day trial, he would be in the village for weeks.
 
        The trial ended with a community sentence, in which many different individuals, the community, and Philip, all agreed upon an alternative way to deal with the past, the present, and the future.
 
    [A study of other cultures, and of people trying to preserve their ethnicity and/or culture, will find similar methods of conflict resolution to that described here.]

Here are some of the words of the judge:
 
Excerpts from: R. v Moses, Yukon Territorial Court, "Reasons for Sentencing," of His Honour Judge Barry Stuart, January 9, 1992.
 
“In any decision making process, power, control, the overall atmosphere and dynamics are significantly influenced by the physical setting and especially by the places accorded the participants. Those who wish to create a particular atmosphere, or especially to manipulate a decision-making process to their advantage have, from time immemorial, astutely controlled the physical setting of the forum. Among the great predator groups in the animal kingdom, often the place secured by each member in the site where they rest or hunt, significantly influences their ability to control group decisions. In the criminal justice process (arguably one of contemporary society's great predators) the physical arrangement in a Courtroom profoundly affects who participates and how they participate. The organization of the Courtroom influences the content, scope, and importance of information provided to the Court. The rules governing the Court hearings reinforce the allocation of power and influence fostered by the physical setting.
 
“The combined effect of the rules and the Courtroom arrangements entrench the adversarial nature of the process. The Judge, Defense, and Crown Counsel, fortified by their prominent places in the Courtroom and the rules, own and control the process — and no one in a Courtroom can have any doubt about that.
 
        “If the objective of the process is now to enhance options, afford greater concern to the impact upon victims, shift focus from punishment to rehabilitation, and to meaningfully engage the community in sharing responsibility for decisions, it may be advantageous for the justice system to examine how court procedures and physical arrangements mitigate against these new objectives.
 
    “In this case, a change in the physical arrangements of the Courtroom produced a major change in the process.
 
        “Arranging the Court in a circle without desks or tables, with all participants facing each other, with equal access and equal exposure to each other, the dynamics of the decision making process were profoundly changed.

“Everyone around the circle introduced themselves. Everyone remained seated when speaking. After opening remarks by the Judge, Defense Counsel and Crown Counsel, the formal process dissolved into an informal, but intense, discussion of what might best protect the community and extract the Defendant from the grip of alcohol and crime.
 
        “The tone was tempered by the close proximity of all participants. For the most part, participants referred to each other by name, not by title. The circle focus dramatically changed the roles of all participants, as well as the focus, tone, content and scope of discussions. The following observations denote the obvious benefits generated by the circle setting:
 
1. The foreboding Courtroom setting discourages meaningful participation beyond lawyers and judges. It contributes to encourage the community to believe judges uniquely and exclusively possess the wisdom and resources to develop a just and viable result. They are so grievously wrong! Counsel, due to the rules and their prominent place in court, exude such confidence and skill that lay people commonly perceive as a prerequisite to participate. The circle significantly breaks down the dominance that traditional Courtrooms accord lawyers and judges. In a circle, the ability to contribute, the importance and credibility of any input, is not defined by the seating arrangements. Questions about the community and the accused force discussions into a level of detail usually avoided in the courtroom by sweeping assumptions and broiler platitude. The circle denies the comfort of evading difficult issues through the use of obtuse, complex, and technical language.
 
2. The circle drew out the person behind their role, and encouraged a more personal and less professional contribution. It fostered a greater sense of equality between lay and professional participants. The sense of equality and discovery of significant common concerns and objectives is essential to sustain an effective partnership between the community and the justice system.
 
      3. The circle, by enabling the offender to speak for himself, and by enabling others who have known him all of his life to share their knowledge, substantially improved the Court's perception.
 
      4. The circle, by enhancing community participation, generates a richer range of sentencing options. The circle forges a collective desire for some- thing different. Fueled by the expanded and responsive flow of information, the circle participants worked towards a consensus, towards a unique response to a problem that had plagued the community for 10 years and had stolen ten years from the life of the defendant.
 
5. The circle, by engaging everyone in the discussion, engaged everyone in the responsibility for finding an answer. The consensus building approach fostered not just shared responsibility, but instilled shared concern to ensure the sentence was successfully implemented.
 
6. This was the first time the Defendant heard anyone from the community offer support. He could no longer believe that the police and the community were solely interested in removing him from their midst. These comments within the circle drew him into the discussion.
 
7. Many offenders perceive only the State as the aggrieved party. They fail to appreciate the very human pain and suffering they caused. Absent any appreciation of the victim's suffering, offenders fail to understand their sentence except as the intrusion of an insensitive oppressive State bent upon punishment. The circle affords an important opportunity to explore the potential of productively incorporating the impact upon victims in sentencing.
 
8. The Courtroom, ideally suited to meting out punishment with its potentates on raised podiums — appropriately robed in black — retains its historic function as a degradation ceremony. This atmosphere is counter productive to developing a constructive rehabilitative plan or genuinely inspiring offenders (except out of fear) to pursue rehabilitation. Punished by a community, the offender must face his sentencers daily. Punished by a Court, the offender confronts disapproval of a stranger, enforcing strange laws, whose punishment carries the authority of the State.
 
9. Despite the appalling track record in either stemming the rising tide of crime or in rehabilitating offenders, communities persist in placing excessive reliance upon the justice system. In effect, conflicts are stolen from the community by the justice system. Properly processed, conflict is an essential element in building the foundation of community spirit and pride, and most importantly in building the ability to cooperatively develop community based solutions to social problems. The circle discussions highlighted the severe limitations of the justice system and the consequent value and necessity of community members assuming responsibility for community well being.
 
10. The Court's process, often preoccupied with the administration of law, is not sufficiently alive to the reality of what happens in the community before and after a sentence is imposed. The circle discussions force community members to see beyond the offender, and to explore the causes of crime. This search inevitably leads to assess what characteristics in the community precipitate crime, what should be done to prevent crime, and what could be done to rehabilitate offenders.
 
11. After several offenders have been processed through the circle, circumstances within the community that directly or indirectly influence criminal behavior will become patently obvious. Circle participants, in gaining an appreciation of factors contributing to crime, may exert pressure to realign community expenditures and may stimulate local business to recognize their best interests are served by developing community based alternatives to prevent crime. Circles reveal that community based support systems are necessary to reenforce and sustain courageous struggles against substance abuse or other personal difficulties. The discussions generate a collective will to constructively intervene to help individuals and families obviously in trouble.
 
    “These changes to the sentencing process are not the making of a panacea. They are relatively small steps in a very long journey to move the criminal justice system from its destructive impact on people and communities to doing what it should working closely with communities to prevent crime, protect society, rehabilitate offenders, and process conflict in a manner which builds, not undermines, a sense of community.
 
“In Philip's case, as with many others, jail sentences are unfortunately not simply the last resort, but the most expedient means of sweeping out of the community, off the case docket, a difficult problem. Crime will mysteriously disappear, society naively presumes, if criminals are sent away to jail. ... The intended purpose of jail sentences must be subject to the scrutiny of what actually takes place in jail. and of what objectives jail can realistically achieve. ... [Philip's] record demonstrates at best the ineffectiveness of jail in fostering law abiding conduct, at worst the record confirms that those who re-offend the most are those who have been punished the most. The criminal record, the information shared by Philip in the circle about his experiences in jail, and the singularly constant theme in all professional assessments, provide compelling reasons to conclude that further punishment, particularly incarceration, would continue to lock Philip into a life of crime and self-destruction. Philip's life of crime, exemplifies in human terms the futility and destructive potential of unnecessarily long and too frequently employed jail sentences. All major studies have echoed the same message: “jail must be a last resort”, “all other alternatives must be explored”, “much greater restraint must be exercised in the use of jail sentences.”
 
    William D. Bontrager, J.D.
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