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.
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.
study of other cultures, and of people trying to preserve their ethnicity
and/or culture, will find similar methods of conflict resolution to that
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.
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:
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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,
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