by Ty LaFountain, Recovery Support Coordinator
December 9, 2024
The United States has the highest incarceration and recidivism rates in the world. Our criminal legal system often causes more harm than good. Yet, we continue to believe this is the best way to address crime in our country. Why do we do this? As a society we have never been shown any other way, so we don’t realize that there are other options aside from punitive measures, such as incarceration. Restorative Justice is just one of the many ways that we can work to better implement justice and to get rid of the inequities that exist within our criminal legal system. Restorative Justice is an Indigenous principal of holding people accountable for a harm they have caused by promoting healing and restoration for the entire community as a whole. When a harm is caused, there are more people affected than just the victim and the offender. Friends, family, neighbors, innocent bystanders, coworkers and whole communities may be affected by the harm caused.
One of the oldest documented cases of Restorative Justice is the “Crow Dog” case of 1883. In this case, a Sioux man by the name of Crow Dog shot and killed another member, Spotted Tail, of the same tribe on tribal land. Because this occurred on tribal land, between two tribal matters it was handled by tribal law. Tribes knew that no justice was served if individuals were sentenced to death for the death of another, there is no true restoration from this; the victims, in reality, get no healing from this sentence as well as the person sentenced to death neither learns nor repays anything. In this case the Tribal Court sentenced Crow Dog to pay $600, 8 horses, and a blanket to Spotted Tail’s family, which was in essence a form of sentencing Crow Dog to take care of Spotted Tails family since they had lost the main provider for their family. This was a high price in 1883 and was considered to promote more healing than the death penalty. The United States Courts feeling this sentence was not enough decided they too would try Crow Dog and if found guilty would be sentenced to hang. However, this case went to the Supreme Court and found that because this crime had been committed on tribal land between two tribal members, they had no jurisdiction. Crow Dog was sentenced by the tribal courts, where he paid the price of $600, 8 horses, and a blanket. However, this led to the passing of the Major Crimes Act of 1885, which allowed the federal government jurisdiction on tribal lands. This would change our legal system in the United States forever (Crow Dog Case (1883) | Tribal Governance).
In restorative practices, all agreeing parties affected by the harm have a meeting in what is called a “Healing Circle.” There is a neutral facilitator, and this circle is held in a neutral location. The parties come together and share their perspective sides of the story. Rules for the meeting are established by all parties, beforehand, to create a safe space for all. A talking piece is passed around, whoever is holding the talking piece is the person who talks, there is no interrupting the person with the talking piece and a person does not talk unless they have the piece. This gives each person the ability to share their side of the story without being interrupted. At the end of this meeting, the person who was harmed will make a list of things they need for the other person to do to restore healing in this case. The participating individual can either agree to these terms or not. If they do not, they will go through the ordinary court process. Also, if throughout the process they are not doing said agreed upon terms, they end up going through the original court process.
Typically, what comes out of these meetings is that people learn to understand what was going through the other person’s mind at the time of the incident. The person who was harmed often learns that the person causing the harm had no real intention of harming them specifically or had no intention of harming anyone in general. Most crimes committed are based on opportunity and necessity. The person causing the harm typically isn’t engaging their pre-frontal cortex to understand the consequences of what they are about to do. The person who has caused the harm now gets to hear how this harm has affected everyone involved. They hear firsthand how what they have done has caused another individual harm. This is shown to be more effective than sentencing someone to community service, probation, or incarceration where the person never truly grasps the exact harms, they have caused another individual. When a person is sentenced through our current criminal legal system, they often learn to resent the criminal legal system and learn how to not get caught next time.
95% of all cases in the criminal legal system end in a plea deal. These plea deals offer no healing or restoration for either the victim or the offender. Restorative justice is a victim centered approach that promotes healing for the entire community. Restorative justice has been shown to reduce recidivism rates up to 35-40%. With the highest incarceration and recidivism rates in the world it’s obvious the system we are currently using is not working and this has been the case for a long time. I believe it’s time to look to our ancestors to see what worked for them, as it may work again. The restorative practices of Indigenous peoples have been shown to be more affective and it’s time to reimplement these practices and end this era of mass incarceration and head into mass healing for all the United States.