A new Native court highlights the major fix our criminal justice system needs
We always talk about "equality before the law," but it's time to start asking what role an individual's culture should play in our understanding of justice.
In recent years, critics have exposed the blatant inequality baked into our criminal justice system: how poverty drives crime and how racism infects so many of our systems; how it’s often more profitable for corporations to simply pay fines and keep breaking the law; how corrupt politicians almost never face prosecution; and how the wealthy, with their teams of expensive lawyers, rarely do time (and if they do, how they serve their sentences in cushier jails). These critics point out that the law is meant to apply equally to all people — that it should be “no respecter of persons” — but that instead we have a two-tiered justice system where the wealthy and well-connected use their money to avoid accountability while the poor and marginalized suffer the harshest punishments.
But if we believe in a justice system that applies equally to all, how do we make sense of “diversion programs” that help the poor and marginalized by diverting them from the normal court system and into programs where they receive lesser sentences? Shouldn’t everyone who commits the same crime receive the same punishment, regardless of their background?
That said, such programs have shown themselves to be effective — to lower recidivism rates (the number of times offenders commit additional crimes) as well as bring about healing to both the victim and offender — so clearly the situation isn’t so cut and dry. People generally believe justice should be “blind” to difference and apply equally to everyone, but if we actually want to create a more just and peaceful world, then a one-size-fits-all system doesn’t actually work so well. But if that’s the case, what kind of justice system should we be trying to create?
A recent Guardian article, “‘We look deeper’: the Native court settling cases outside the justice system,” points to a different path when it comes to thinking about justice. It recognizes the larger context of crime — the crushing poverty, both physical and spiritual, that leads to crime and also the role that community can play in preventing it.
The article looks at the lives of Native Americans in Rapid City, South Dakota, where they make up just 9-11% of the population, but comprise 60-70% of the jail population. In response, the local Lakota tribe has taken a new tack: an ‘Oyate court’ (which translates to ‘people’s court’) that “employs a process based on Native culture and aboriginal peacemaking principles that stress healing over punishment.”
“When people get in trouble, just locking them up won’t help,” said Chris White Eagle, a Cheyenne River citizen who sits on the circle of elders. “With Oyate court we look deeper into trying to heal them. We get to ask the questions the courts don’t ask. Get to the root of the problem.”
The healing process, as they see it, comes through culture. This means reclaiming native culture more generally — re-introducing the youth to their own Lakota language, as well as “purification ceremonies and the sacred multi-day Sundance rituals” — and also bringing their cultural identity and heritage into the courtroom:
The Oyate court elders infuse Lakota values and culture into their healing discussions and proscriptions. “We stress the seven Lakota values: compassion, generosity, humility, sincerity, courage, perseverance, wisdom,” said Jonathan Old Horse, one of the nine elders who sit on the court.
This emphasis on culture is striking, but still, why should the cultural identity of the offender matter at all?
Such questions are impossible to answer without an understanding of the difference between culture and law. The central principle — the animating ideal — within a democratic legal system is indeed equality. It strives to create a realm of laws that are the same for all, and so it intentionally overlooks individual difference. This is why we always depict our statues of Lady Justice with a blindfold.
On the other hand, the animating ideal of culture is freedom — every individual is different, has their own identity and background, and should be able to follow their own conscience, their own path in life (in the US constitution, the 1st Amendment is the key protection for such cultural freedoms). It is in the realm of culture where we rightfully celebrate diversity. It’s also in the realm of culture (in art, science, medicine, and education) where we try to see each person’s specific gifts in order to nurture them, as well as their specific wounds and trauma in order to heal them. We work differently with each individual. But we can’t do this if we’re only working with sameness, if we’re blind to difference.
This is why the 20th century philosopher Rudolf Steiner pointed out that, when it comes to the government with its legislative, judicial, and executive branches, it’s the judicial branch that is the most cultural in nature. Yes, we have to create and administer laws that are the same for everyone, but when it comes to judging the people who have allegedly broken them, we have to take their individual background and circumstances into account.
In order to do this, the judge or jury needs to understand the defendant’s situation — and so it’s right that a person should be judged by their own people. This is the basic reason we say a person should be judged by a “jury of their peers.” To be judged by someone who has never walked in your shoes (and therefore can’t understand your actions) is a breach of justice.
Steiner knew this firsthand from his own upbringing in Austria-Hungary. The country consisted of at least thirteen major nationalities, each with their own language and traditions. When a person from one national-ethnic group would be judged by a person from another, prejudice and misunderstanding were rife.
This wasn’t because people in certain ethnic groups were worse than others — prejudice isn’t some sort of rare disease, it’s the natural state of things. Those who grow up in one group naturally understand their own culture, but not others. Until we’ve entered deeply into another culture, we simply can’t help seeing it from a distorted, outsider’s perspective.
Therefore such judgements, handed down from strangers on high, usually misunderstand the nature of the crime and, at the same time, alienate the alleged criminal, making it more difficult for them to accept their judgement and heal any wounds they’ve caused. It’s the classic “two wrongs don’t make a right” scenario: Instead of making the situation right by healing the break in the community and bringing all parties back into the circle, our punitive justice system often just creates a second wrong through long incarceration sentences that only push the offender further out.
But how can we bring greater individual discernment and healing into the justice system? Here, Steiner gave a concrete recommendation: in the same way we currently elect political representatives, we should create a rotating slate of judges from diverse backgrounds and let people choose their own judge every few years. Such judges then wouldn’t just be lawyers and legal professionals (though of course they’d need the aid of such experts), but would instead be representative of the people themselves, from all walks of life.1 It would be a true “people’s court” — the people would be able to see themselves, their “peers,” in those who were judging them.2
This ideal seems strongly aligned with the direction the Oyate court is taking. They are creating the space where the Lakota people can stand before their own elders, those whom they respect, and receive judgement for their actions. The Guardian article describes the experience of one young man, Robert Jones, who went through this process.
“What made me nervous was these are my Native people, these are your elders and in Native culture you have to respect your elders,” he said. “It’s really nerve-racking because they’re judging you and saying things that make you think, like, ‘Dang, I really need to do better. I really need to get my life together.’”
So, coming back to the beginning: though justice should be blind during the making of laws, it shouldn’t be blind in judging those who have broken them. Which isn’t to say that wealth and money should have any role in the judicial system — it shouldn’t — but culture should have a role, and a leading role at that. Only insight into the individual lives of those who have broken the law will be able to discern how true justice can come about.
Because the aim of the justice system shouldn’t be to enact vengeance or get rid of bad people. It should be to heal what’s been broken. Such healing is a delicate process. People are not just case numbers and percentages, they’re not just trouble-makers from that group over there. They have a story, and we’ll only find healing when we learn to listen to it.
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This is similar to our current jury system, but instead of those sitting in judgement only doing so once and then going back to their lives — therefore not building up any capacities or expertise — judges in Steiner’s arrangement would serve for a longer period and therefore develop greater discernment in their work.
One question that needs further exploration is: What’s the role of the victim in this situation? Steiner spoke about these ideas only on a couple of occasions (at least in terms of writings that are translated in English — see Towards Social Renewal and The Social Future) and his focus is always on the offender. This makes sense in that it’s the offender who’s developmental biography has led them to take the criminal action — the crime originated in them — so it requires insight into their particular development for the judge to help rectify the situation. One would assume though, that the judge would then be working with principles similar to those in “restorative justice,” where one is centering the victim and focusing on the wound that’s been inflicted, in order to enable the offender to help bring about healing.
Great article, Seth. Thanks!! Thanks to you I have just corrected a misunderstanding I had: I always thought that Steiner proposed that the alleged criminal may choose (as you mentioned, from an elected diversity of judges from different cultures) who is the one he trust the most, so to receive a verdict from... Now I see I was wrong and I guess that this idea could be nice but also contain different problems down the road...
It is a pleasure to read about the peer judges endeavour!
In Denmark, we basically have educated judges who follow the old Roman jurisdiction. But there are also juries comprised of lay people from many walks of life. Presently, though, we aren’t allowed to choose our own judge or jury.