Going local: Lessons from tribal justice
A year into California's criminal justice Realignment, preliminary data
indicates overcrowded state prisons populations are in fact declining. However, sentencing practices across the state remain varied. While many counties have been able to decrease their reliance on state prison, over half of California's counties experienced an increase in new prison commitments for certain offenses since realignment. For these counties, continued state-dependence could be resulting from the lack of community-based alternatives available. The concept of providing rehabilitative services at the community level is far from new. Tribal courts, for example, have been practicing this way for generations.
Last week I had the opportunity to attend, Doing Justice in Indian Country,
a conference sponsored by the Thelton E. Henderson Center for Social Justice, at the University of California, Berkeley. A major theme that emerged was the effect of practicing various justice systems throughout Indian Country, be it the western adversarial system, the traditional system based on Tribal Customary Law, or and a combination of the two. Historically, Indian nations exclusively practiced their own form of traditional justice, exercising a holistic approach. This is based on the view that issues arise as a result of a community problem rather than stemming from the individual. Over time, much of this approach has been "forcibly stamped out by the United States," causing many tribal courts to adopt certain western-based systems, explained Ronald Whitener, Executive Director of the Native American Law Center
. In 1968 the federal government enacted the Indian Civil Rights Act, while ensuring many civil liberties such as due process, it did this by introducing Western procedures of law. For example, United States' style courts were created and community involvement was reduced to merely jury participation, effectively devaluing many Native practices. Whitener continued, because incarceration appeared easier than "looking at what it would actually take to rehabilitate an offender"... "the United States hooked tribes on the drug of incarceration,"
an option formerly not in their scope of practice.
Some tribes managed not to adopt a completely adversarial system, and more recently, tribes such as the Navajo Nation, have returned to tradition, thus creating a hybrid system. They have been able to secure more funding for alternatives and restored tribal law. As a result, these tribes rarely see incarceration as an option. Instead, opportunities for diversion are used at every point of the system, lowering case loads and implementing restorative justice through such practices as Elders Panels, Youth Courts, Healing Courts, and Drug Courts.
Regardless of the success of these practices in Indian Country, model systems are not meant to be exactly replicated in another jurisdiction; therefore, implementation should be specific to each community. What is transferable, irregardless of the community, is the recognition that crime often stems from many of the same issues: poverty, alcoholism, domestic violence, and trauma. Alternative solutions can target specific populations affected by these community issues. To enable jurisdictions to target the root of many local problems, true commitment and collaboration between various departments, such as mental health, social services, direct service providers, and neighborhood associations, is needed to invest in community-based approaches. Viewing crime through a lens specific to their jurisdiction can enhance public safety and ultimately promote community-based alternatives in state-dependant counties.
Posted in Blog, Model Local Practices
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