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    November 01, 2016

    The Indigenous Practice That Is Transforming the Adversarial Process

    By Neil B. Nesheim

    As humans, we are always on the lookout for that “aha!” moment. In the judicial arena, it is that time in a case or in your career when you witness and are part of a jaw-dropping, awe-inspiring, life-changing, what-did-I-just-experience? event. Have one of those moments and your adrenaline pumps, your motivational level skyrockets, and you realize that the work you do really does make a difference in people’s lives.

    For me, that “aha!” happened in 2001 when I attended my first Circle. I was invited to Kake, Alaska (pop. 520), by Magistrate Mike Jackson, a very well-respected Alaska Native and Keeper of the Kake Circle. The event was a Celebration Circle that recognized the 18-month sobriety of a couple who were leaving the village and moving to a larger community. The comments made during the Circle are confidential. What I can tell you, however, is that what I experienced was so powerful and so moving that I decided to look at restorative justice and the Kake model more deeply.1

    An Abbreviated History of Circles

    Every culture that has ever been studied had the practice of sitting in a circle and talking.2 Like many indigenous cultures, the First Nation people of Canada and Alaska were able to resolve disputes and heal their communities on their own. They did this through the traditional and time-honored practice of Circles.

    For the First Nation people, there are no books, scrolls, or hides that trace the origins of Circles. This is because the memories of the First Nation people are transferred through oral history. Grandfathers would sit around and tell stories that their fathers and grandfathers told them. And those stories would be passed on to the younger generations, who would then share the same stories that they heard. Mike Jackson remembers his father telling him stories of how the Kwaan (Village) would sit around in a circle and resolve conflicts and disputes. Listening to Mike dig deep into his memories and reflect on the past, you could tell that Circles were used long before the Russians, British, or Spanish explored or settled in present-day Alaska. There is no doubt that Circles were used as a tribal practice.

    The practice of using Circles went away when the indigenous groups were assimilated and forced into adopting the adversarial system. This went on for several hundred years and hardly any of it was restorative in nature. Then, in the early 1990s, an event in Canada changed how the Western legal system perceived indigenous practices. With First Nation people in Canada being incarcerated at a rate of eight times the national average, Yukon Territorial Judge Barry Stuart was asked by a defendant to resurrect traditional healing and sanctioning practices.3 Judge Stuart agreed and over the course of the next 25 years, Circles have been revived and implemented across North America, Europe, New Zealand, and Australia.4

    Characteristics and Guidelines of Circles

    There are many types of Circles that exist and are in use today. There are Grief Circles, Peacemaking Circles, Suicide Prevention Circles, Celebration Circles, and Sentencing Circles, just to name a few. Sentencing Circles will be discussed later, as the phrase is more of an oxymoron in peacemaking cultures and there is a delicate line between healing and punishment.

    For peacemaking cultures that utilize Circles and resolve disputes by talking things out, the concept of law is based on healing.5 In order for healing to occur, the problem must be dealt with in its entirety.6 This means that for the victim to be healed, the victim and the offender’s interpersonal relationship must be healed and the community must be healed.7

    Healing, even the preparation for healing, takes time. On the day of the Circle, the room that is used for the gathering is carefully arranged by a person known as a Keeper or Peacemaker. The Keeper is part mediator and part facilitator. The Keeper creates a safe setting, and the atmosphere is warm and welcoming for all attendants.8 Concomitantly, this trusted individual’s special skill is to get people to talk to one another about their problems.9

    Much like the name suggests, chairs are set up in the room in the form of a circle to produce the feeling of equality and the distance between each chair is carefully considered so as to create an ambience of connection between participants.10 Next, the Keeper starts the Circle by explaining the general guidelines. These guidelines may include

    • The Keeper of the Circle will announce the guidelines and begin by assuring everyone that the Circle is a safe place to share one’s life experiences and how one feels;
    • Everyone is equal. All titles are left at the door;
    • Prayer or silence: The Circle begins and ends in a good way;
    • One person talks at a time. Talk from the heart—one’s life experience, for example. We even respect one’s choice not to share, but we are at the Circle to show support;
    • A time limit on sharing is usually five minutes maximum and even shorter if there are many participants;
    • We respect each other; Keeper can call a point of order;
    • We do not point the blame;
    • Timely breaks are announced by the Keeper of the Circle;
    • Everyone is inclusive; no one should be sitting outside the Circle; and
    • Everything said in the Circle is confidential.11

    To ensure that only one person talks at a time, Circles use a “talking piece” to maintain structure. Talking pieces often have a spiritual connection and are respected by all in the community.12 Talking pieces can be unique stones, feathers from a sacred bird, or other items that have an organic or holistic quality to them. In Kake, for example, the talking piece is a diamond willow stick. As explained by Magistrate Jackson, “the willow’s brown, diamond-shaped pattern represents the eyes of elders who watch to see if their community members aid one another through their comments.”13

    When the talking piece moves around the room, certain traditions are followed. For example, it is customary for the talking piece to move clockwise, imitating the path of the sun.14 In addition, after one person has had a chance to talk, it is handed off to the next person in the circle so that all are given the opportunity to participate. Only the person holding the talking piece speaks. This encourages active listening as participants listen, speak, and then listen again.15 Participants are not required to speak, and in some circumstances, silence may be a more powerful voice for the Circle than any spoken word.16

    Participation and consensus are key components of Circles. It is no surprise that Circles rely on commitments from the families, community members, and the offender. Families and community members are brought together, the issues are discussed in a collaborative manner, obligations are created, and the solution is to undo the harm and put things right with all those involved: the offender, the victim, and the community.

    A Cautionary Note About Circle Sentencing

    As mentioned earlier, the term Circle Sentencing is an oxymoron. Circles are restorative in nature and the term “sentencing” is very much punitive and adversarial. Merging the two concepts into one effective solution requires an agreement between the community and the legal system on a number of issues, including accepting the offender into the Circle (community), determining whether a plea should be entered (legal), determining where the Circle should be held (community), and coming to a consensus (legal and community).

    In the criminal justice field, before a case is referred to the Circle, most offenders are required to enter a guilty plea early on in the case.17 The reason for this is so that the offender acknowledges responsibility of the wrongful act and is willing to participate in the process.18 Next, the community must decide if the offender and situation are appropriate for the Circle. This usually involves a prescreening process. If accepted, the families of the offender and victim are notified, the community is informed, and the date/time of the Circle is sent out. It is customary for the Circle to be held in a community building rather than a court building because the proceedings shift from a professional/legal process to a community-driven process.

    For some courts that do Circle Sentencing, the judge not only actively listens and participates in the process, but also has the final say in the outcome of the sentence. This model is not ideal as it can wreak havoc on trust, consensus-building, and collaboration. It is for this reason that the judge should remain neutral and detached. If the judge does participate in the Circle, the judge’s presence would be best served as an active listener rather than a commentator.

    It is important to remember that restorative justice comes from the consistent presence of the Circle. The offender has a constant support group that identifies concerns, provides ongoing supervision, and ensures that each Circle requirement is measured against individual, family, and community information.19 In addition, if at any time the offender does not complete any or all of the requirements, the Circle may convene and the offender may be referred back to the courts and prosecuted by the government. Developing Memorandums of Agreement (MOAs) or Memorandums of Understanding (MOUs) that set parameters is an important and necessary part of blending the traditional with the restorative.

    Implementing Restorative Justice at the State Level

    While many states have implemented restorative justice programs, for brevity’s sake, only two will be mentioned here. The first is Michigan. This state’s legislature created a fund to support efforts that improve public service and court performance. As part of their FY 2014 budget, they funded a Peacemaking Court for the Washtenaw County Trial Courts. Judge Timothy Connors oversees the Peacemaking Court and Wayne State Law Professor Susan Butterwick is the project director.

    To get the Peacemaking Court from thought to fruition, tribal judges, leaders, and other key personnel were invited to the county to help educate the court, the interfacing agencies, and the public about the peacemaking process. From there, the group adopted some guiding values and then decided on what type of cases to accept.

    Michigan started off with probate and family law cases. And then they began accepting dependency and juvenile delinquency cases. Judge Connors notes that, while the Peacemaking Court has only been in existence a short time, the results are impressive. Most notably is the fact that 94 percent of cases referred to Circle Peacemaking were disposed of with an agreement from both parties.20

    The other state that has been using Circles at the trial court level is Alaska. Prior to the Kake Circle, recidivism in the state courts was running at 66 percent. When the Kake 10-year lookback study (1999–2009) was completed, the results showed that participants in the Kake Circle recidivated at a mere 28 percent.21

    The success of the Kake Circle has been an inspiration throughout Alaska. Judicial officers in several parts of Alaska adopted the restorative model and began using Circles. In 2010, Magistrate Judge Christopher McLain of Galena began holding Circles in the villages of Galena, Huslia Nulato, and Tanana and now holds Circles regularly in those villages. And just outside of Alaska’s largest city of Anchorage is the community of Palmer. Superior Court Judge Eric Smith handles the venue around the Palmer area, including the small town of Glennallen and the outlying communities of Tazlina and Copper Center.

    It was in Tazlina in 2009 where Judge Smith held a Circle for two young offenders who admitted to stealing a fire truck, then destroying it by setting it ablaze. At the time of the incident, both men were very intoxicated. When the Circle was held, many community and family members spoke. One was the local state trooper who recounted numerous attempts of trying to keep the two out of the criminal justice system, without success. A relative also spoke about how alcohol nearly took her life and she begged one offender not to let the same thing happen to him. Others were equally passionate when they talked. Circles are highly emotional and Judge Smith indicated that, by the end of the Circle, both men had broken down and were in tears. Both were extremely remorseful. Though he gave the two men some jail time, Judge Smith reports that the Circle was instrumental in developing successful conditions of probation, so much so that neither man has been in trouble with the law since.22

    Unlike Michigan, the Alaska model currently focuses on issues that are criminal or quasi-criminal (e.g., minor consuming) in nature. But Alaska differs from Michigan in one important way. Because the state is collaborating with tribal entities on more and more matters, the Alaska Supreme Court recently modified its court rules to specifically allow restorative justice measures. Criminal Rule 11 now states, in part:23

    Restorative Justice Programs.

    With the consent of the victim(s), the prosecutor, and the defendant(s), the judge may refer a case to a restorative justice program. The parties must inform the restorative justice program about any applicable mandatory sentencing provisions at the time the matter is submitted to the program. The parties may propose to the court the sentence recommended by the participants in proceedings convened by that program.

    What Does the Future Hold for Circles?

    In the coming years, Circles, when managed and applied correctly, will transform the adversarial process even more. Recidivism in criminal cases will go down. And in the civil arena, requests for modifications in custody disputes will drop. More and more courts will explore the use of Circles in probate, child in need of aid, and delinquency cases and decisions will be based more on consensus rather than which party hired the savviest and shrewdest lawyer.

    Circles will also fill a void that has existed for years in the court system. People who may be seemingly unaffected by a wrongful act not only will be able to participate in a process that allows them to voice their feelings, but they will also help decide what obligations and what outcomes are sought in a particular matter. As one author poignantly described it, when this happens, “Not simply justice but the experience of justice occurs.”24

    Actually experiencing justice leads to one last prediction: Sentencing Circles for many communities will morph into Peacemaking Circles or a variation thereof. Cases will still start out in the court system, but once the matter has been accepted by the Circle, the process will change. MOAs and MOUs will be written so that the successful completion of the obligations will result in a deferred prosecution or civil compromise. In other words, if the offender completes everything sought by the Circle, the case will be closed and there will be nothing on the wrongdoer’s record. This will have lasting implications for such important factors as employment and housing. By removing any sign of a conviction, the offender will be made whole again and maybe—just maybe—will experience that “aha!” moment.

    Endnotes

    1. For a complete review of restorative justice and the Kake Circle, please see the original research: Neil Nesheim, Evaluating Restorative Justice in Alaska: The Kake Circle (Inst. for Court Mgmt., Court Exec. Dev. Program, Phase III Project, May 2010), available at http://www.ncsc.org/~/media/Files/PDF/Education%20and%20Careers/CEDP%20Papers/2010/Evaluating%20Restorative%20Justice%20in%20Alaska-The%20Kake%20Circle.ashx. Note: Several items mentioned in this article are derived from the Kake research paper. Citations are noted accordingly.

    2. William Isaacs, Dialogue and the Art of Thinking Together: A Pioneering Approach to Communicating in Business and in Life, at xvi (Doubleday Currency 1999).

    3. Gordon Bazemore & Mark Umbreit, A Comparison of Four Restorative Conferencing Models,Juv. Just. Bull., Feb. 2001, http://www.ncjrs.gov/html/ojjdp/2001_2_1/contents.html; Heino Lilles, Circle Sentencing: Part of the Restorative Justice Continuum, paper presented at “Dreaming of a New Reality,” the Third International Conference on Conferencing, Circles and Other Restorative Practices, Minneapolis, Minn. (Aug. 9, 2002), http://www.iirp.org/library/mn02/mn02_lilles.html.

    4. The European Union (EU) funded a project for Germany, Belgium, and Hungary from 2011 to 2013 to see if Peacemaking Circles could be used in those countries and how it could become a model for the rest of Europe. See Introduction of the Peacemaking Circles, Foresee Research Grp. (June 28, 2013), http://www.foresee.hu/en/segedoldalak/news/592/65b5c7d1ea/5. For New Zealand and Australia, see Luke McNamara, Indigenous Community Participation in the Sentencing of Criminal Offenders: Circle Sentencing, 5 Indigenous L. Bull., no. 4, 2000, at 5.

    5. James Zion, Punishment versus Healing: How Does Traditional Indian Law Work? inJustice as Healing: Indigenous Ways 69–70 (W. McCaslin, ed., Living Justice Press 2005).

    6. Indigenous Justice Systems and Tribal Society, Nat’l Inst. of Just. (Dec. 3, 2007), http://www.ojp.usdoj.gov/nij/topics/courts/restorative-justice/perspectives/indigenous-tribal.htm.

    7. Howard Zehr, Changing Lenses: A New Focus for Crime and Justice 104–06, 123 (Herald Press 1990). See also Heino Lilles & Barry Stuart, Creative Justice: The Role of Community in Sentencing, 8 Just. Rep. (Canadian Crim. Just. Ass’n), no 4, Spring 1992, at 3.

    8. Don Haldeman, So Why Circles?, CircleDialogue.com (July 2009), http://circledialogue.com/whycircles.html.

    9. Nancy A. Costello, Walking Together in a Good Way: Indian Peacemaker Courts in Michigan, 76 U. Det. Mercy L. Rev. 875 (Spring 1999).

    10. K. Pranis, B. Stuart & M. Wedge, Peacemaking Circles: From Crime to Community 131 (Living Justice Press 2003).

    11. E-mail from Mike Jackson. Guidelines for Circle Peacemaking (Aug. 2009).

    12. SeePranis, Stuart & Wedge,supra note 10, at 98.

    13. Mike Jackson, Kake Circle Peacemaking (July 2009), http://www.innovations.harvard.edu/awards.html?id=6164.

    14. SeePranis, Stuart & Wedge, supra note 10, at 96.

    15. Id.

    16. Id.

    17. Lilles, supra note 3.

    18. Miriam Beverley Handel, Aboriginal Justice, Encyclopedia of Saskatchewan,http://esask.uregina.ca/entry/aboriginal_justice.html retrieved (last visited July 2009).

    19. Lilles & Stuart, supra note 7.

    20. Confirmed via email with Judge Connors.

    21. See Nesheim, supra note 1, at 41.

    22. Zaz Hollander, Talking Circles, Not Steel Bars: Retiring Palmer Judge Pioneered Tribal Sentencing,adn.com (May 14, 2016), http://www.adn.com/crime-justice/article/talking-circles-not-steel-bars-retiring-palmer-judge-forges-tribal-sentencing/2016/05/14.

    23. The full rule can be found at http://www.courtrecords.alaska.gov/webdocs/rules/docs/crpro.pdf.

    24. SeeZehr, supra note 7, at 203.