The Galena District Court has been working closely with interested agencies and communities in the Fourth Judicial District to better connect the Alaska Court System and other justice system agencies to the rural villages they serve. This effort to bring court to the people has resulted in more frequent village-centered hearings in this region. It has also led to a practice of incorporating community recommendations into criminal sentences. Increasing village involvement is seen as an important factor in developing workable solutions and meeting the needs of remote residents.
Of late, the goal of improving justice delivery in rural Alaska has come into sharper focus. Reports generated by the Alaska Rural Justice and Law Enforcement Commission and the Indian Law and Order Commission, as well as commentary from the 2012 and 2013 Alaska State Court System's State of the Judiciary addresses have highlighted past practices, current needs, and recommended future direction. The Alaska Rural Justice and Law Enforcement Commission, established by Congress in 2004, has concluded that as government agencies work more closely with local communities, the likelihood of developing publicly accepted and culturally relevant practices and outcomes will increase. The Galena District Court's community outreach efforts are a testament to this conclusion. This article describes this collaborative effort developing in the Yukon/Koyukuk region of the Fourth Judicial District aimed at increasing access to, understanding of, and community participation in criminal matters affecting remote villages. (See Figure 1.) The Galena magistrate judge, public defenders, and district attorneys serving this region, and others have joined with remote communities to infuse local knowledge and participation into state court proceedings to help ensure relevant information necessary for successful remedies is available. A climate of cooperation and open dialogue that did not previously exist is growing between these predominantly Alaska Native communities, justice officials, and other concerned groups.
Alaska's government and legal process are designed to serve its citizens, and various procedures-from jury service to voting on retention of judges to the public election of lawmakers-demonstrate efforts to connect the public with its governing processes. For many, the opportunity to view the judicial process in action is as simple as driving across town to the local courthouse. For citizens in distant remote communities that ability is far more limited. (See Figure 2.)
Misdemeanor crimes occurring in rural areas are addressed in hub communities such as Galena, Tok, and Dillingham by magistrate judges. Felony offenses are addressed by superior court judges, predominately situated in larger urban centers. For many villages all court proceedings occur in distant settings, and little is known about how a particular incident actually impacted individual victims and the community. In some villages these impacts can be dramatic and affect a large percentage of the community. Similarly, often little is known about the defendant, the defendant's role in the community, the circumstances which may have led to the criminal behavior, or community resources available to assist the individual.
Alaska's sentencing guidelines require thoughtful consideration of victim, offender, and community interests when crafting sentences aimed at addressing their respective needs. Alaska Statute 12.55.005, referred to as the "Chaney criteria" because the information was first articulated by the Alaska Supreme Court in State v. Chaney, 477 P.2d 441 (Alaska 1970), reads in part:
In imposing sentence, the court shall consider
(1) the seriousness of the defendant's present offense in relation to other offenses;
(2) the prior criminal history of the defendant and the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent further harm to the public;
(4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;
(5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct;
(6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms; and
(7) the restoration of the victim and the community.
Much of this information is only available if victims, offenders, and their affected communities have the opportunity to voice their feelings and concerns in a safe and culturally relevant atmosphere. Currently, some of this information comes into sentencing hearings by way of presentence investigation reports, written or oral statements by victims, and recommendations by the prosecutor and defense attorney. Often, this information is missing entirely. Presentence investigation reports, only prepared in felony cases and largely through document searches and phone calls made by distant probation departments, rarely contain the depth of information necessary for effective sentencing in rural cases. Even the attorneys struggle to obtain this detailed information. For example, the likelihood of an offender's rehabilitation is affected by many more variables than just prior criminal history. The community can assist in supplying answers to many questions integral to sentencing decisions, such as: resources that have been provided in the past, resources available in the defendant's community, existing family and community support, employment opportunities, the defendant's skills and education, and other factors that correlate with rehabilitation and the prevention of recidivism.
Similarly, the specific impacts of crime on a particular village are not generally known to prosecutors and judges living in distant communities. The community often better understands the risk potential a defendant poses, the impacts on crime victims, and a sense of what is needed to regain harmony in the community. Yet, missing from most hearings is the voice of the community regarding their view of the offense, its causes and consequences, and suggestions regarding communal condemnation and/or hope for restoration. In short, much of the information needed under the Chaney sentencing criteria is in the hands of the various community members of these remote communities.
Along with current practices, the Alaska Court System can more fully seek this information by involving and asking communities about their concerns, needs, and recommendations. So long as constitutional guarantees of defendants and the statutory rights of victims are provided, community input furthers legitimate interests of the State and the individual communities. Alaska's sentencing statutes and court rules provide avenues for community input and participation. This input and participation can come in the form of community-generated sentencing recommendations, participation in a community-oriented restorative justice program, or even through submission of a negotiated agreement presented to the sentencing judge pursuant to the terms of AS 12.55.011 (adopted in 2000).
The Alaska Legislature sanctioned greater community and victim involvement in Alaska Statute 12.55.011, which provides statutory authorization for judges to accepted negotiated sentencing agreements in specified crimes. Alaska Statute 12.55.011 allows judges to adopt voluntarily negotiated sentencing agreements between victims, offenders, and their communities in prescribed cases when those agreements do not violate other mandatory sentencing provisions. Before accepting a negotiated agreement, the court must ensure the agreement was not coerced, but if voluntary, this statute provides room for restorative processes such as victim-offender mediation, group conferences, and community circles which culminate in a negotiated/consensus agreement that the court adopts.
Alaska Court System practice and newly adopted rules are also creating more opportunity for community and victim involvement. Several courts in the Alaska Court System, together with local justice system participants, have been creatively involving local communities and using restorative justice programs in conjunction with sentencings. The Supreme Court amended Criminal Rule 11 and Delinquency Rules 21 and 23, effective April 15, 2014, to formally authorize referrals to restorative justice programs, such as circle sentencing, in criminal and delinquency cases. (See "Restorative Justice Programs and Sentencing," page 4.) The rule change is based on recommendations that were developed by the Local Dispute Resolution Subcommittee of the Fairness, Diversity, and Equality Committee. It is intended to support current practice as it has evolved over the years, and to protect the integrity of restorative justice proceedings and the neutral role of the Alaska Court System's judicial officers.
Criminal Rule 11 and the sentencing directives from the Legislature in AS 12.55.005 and AS 12.55.011 allow the courts to ensure victims and communities have the opportunity for appropriate amounts of input and involvement that do not violate the constitutional rights of defendants and the statutory rights of victims.
Restorative Community Outreach in the Yukon-Koyukuk Region
One of the more recent restorative community outreach efforts underway in Alaska is occurring in the Fourth Judicial District, predominately through the efforts of Galena's magistrate judge. Magistrate Judge Chris McLain has garnered the help and insight of local village leadership; court system presiding judicial officials; the Tanana Chiefs Conference (TCC), a tribal nonprofit organization representing the interests of 42 tribal groups in Interior Alaska; attorneys within the local District Attorney Office and Public Defender Agency assigned to the Galena region; and faculty of the University of Alaska Fairbanks to create and implement court practices that better serve the needs of remote villages of the Yukon-Koyukuk region. While not the only example of community outreach and restorative justice philosophy applied to the rural setting, this collaborative effort is gaining exposure, and presents a potential shift in the Fourth Judicial District towards more localized involvement in rural cases.
Galena is a lower Yukon River community in Interior Alaska of about 500 residents and serves as the District Court site for several surrounding villages (Figure 1 and Table 1). These other villages include Ruby, Kaltag, Nulato, Koyukuk, Tanana, and Huslia. (Note: Tanana is now served by the Nenana magistrate judge.) Each village is similar in that all are very small, none have road access, and all are predominately Alaska Native. Many of these remote residents have close ties to a traditional Athabascan lifestyle. Each village has an active tribal government, but few state-operated social and justice services are readily available. In these villages law enforcement presence is limited, there are no practicing attorneys, and court participation either occurs in person at Fairbanks or Galena or telephonically to these locations.
In 2009, after his first year in service, Magistrate Judge McLain expressed concern about the effectiveness of court procedures and how the court was perceived by residents in this area. These concerns arose from a palpable sense of mistrust between community members and the court system, a generalized lack of understanding of how the court system operated, and an alarming realization that conditions of release or probation did not account for the realities of village life. Magistrate Judge McLain began exploring what could be done to address these concerns.
Discussions with local mental health and substance abuse counselors, who are provided by Tanana Chiefs Conference, revealed that few treatment services were readily available to defendants, and some court-imposed release conditions were impossible to comply with in the villages. It was also difficult for villages outside of Galena to be aware of or participate in court hearings impacting their people. Magistrate Judge McLain and long-time Galena clerk of court Pam Pitka began discussing how to make court processes better address these needs. They concluded the communities needed to have ownership and input in the decisions that would impact them so as to remove mystery and gossip about the Alaska Court System. Magistrate Judge McLain and his clerk believed it would be beneficial to hold some court proceedings and community "talking circles" away from the Galena courthouse in the actual villages where crimes were occurring. This would serve two purposes. Local residents could see how court is conducted, and the court could use the talking circle to inquire about general justice needs and concerns in these more remote villages. The talking circle format would provide a culturally significant way for the court to communicate with the villages and open the doors of communication in a respectful way. Magistrate Judge McLain explained: "You need to see and understand the villages one serves. You have to understand them to craft solutions that will work there. Going there shows respect."
These outreach trips began in 2010 with Magistrate Judge McLain being accompanied by the Fairbanks district attorney and the public defender assigned to the region. Court hearings and talking circles were conducted in Nulato, Huslia, and Tanana. The hearings were held in the village tribal halls with permission and support from the community, and after each hearing a general talking circle was held with community members and leaders. Out of these community discussions came a universal concern that village members did not understand court processes, desired greater understanding of the state justice system, and wanted to be involved in the decisions that impact their communities. The communities expressed their desire to work with the State in addressing criminal matters rather than a desire for the State to stay out of these community concerns. Magistrate Judge McLain began to see how important it was to adjust the way the Alaska Court System operated in this area rather than just exploring diversionary options wherein certain matters could be shifted from the court to the local communities. Diversion of matters away from the court would not likely address deficiencies in court procedures nor overcome the sense of mistrust and mystery present. Magistrate Judge McLain believed changing the way the District Court actually operated in these villages was necessary and felt that incorporating community recommendations into court proceedings would allow the judge to be privy to important information regarding victim, community, and offender needs and allow communities to play a more active and informed role in the process. Community members would then become active participants and partners in effectively addressing crime.
Tanana Chiefs Conference (TCC) and the University of Alaska Fairbanks Department of Justice have also become partners with Magistrate Judge McLain in these outreach efforts. Lisa Jaeger, TCC Tribal Government Specialist, has been instrumental in arranging visits to Galena region villages and facilitating community circles.
Using Talking Circles to Generate Community Recommendations
Several changes to court practices have emerged as these village trips have continued, but perhaps the most talked about has been the use of circle sentencing-a community talking circle-as part of a sentencing hearing, used to develop community recommendations for the sentencing judge. Magistrate Judge McLain and others believed that the use of talking circles and the input they generate would increase the effectiveness of imposed sanctions and the ability for communities to heal themselves. After exploring Alaska's statutory law and criminal procedures, it was determined that this information was vital to give true effect to the Chaney criteria, and the circle process could be implemented as part of a sentencing hearing in ways consistent with the constitutional rights of individual defendants. While community participation and input is deemed important, it has not replaced the role of a neutral and impartial judge with final sentencing authority. Rather, as currently practiced in this region, the judge considers the community's recommendations along with input from the attorneys involved, the defendant, and even the victim as is required under our current sentencing statutes. Ultimately, the judge reflects upon all the information provided to tailor a sentence that meets the Legislature's various sentencing goals.
At these village sentencing hearings it has been readily apparent how willing the judges are to incorporate community recommendations. The recommendations make sense, and account for the realities of village life. Yet not all recommendations have been adopted, which attests to the final role the judge retains. Community recommendations reflect what is important to the actual victims, offenders, and community members. To date, this type of sentencing hearing has been used in Tanana, Nulato, Galena, Kaltag, and Huslia. Other villages from this region and other regions of the state have expressed their desire and preference for this type of process. Magistrate Judge McLain, District Court Judge Jane Kauvar (now on the Superior Court in Fairbanks), and Superior Court Judge Paul Lyle have all conducted a circle sentencing-style proceeding.
These village sentencing hearings are currently initiated by a request from the defendant, after the defense attorney and the prosecutor have discussed the nature of the case and jointly determined that the facts of the case present a situation where community input is desirable either because of defendant, victim, or community needs. Once the attorneys have made the formal request for a local hearing, the court coordinates a scheduling conference, usually as part of its monthly calendar call where a representative of the affected community, the circle facilitator, and the involved attorneys discuss and arrange for the village trip. This includes discussing travel arrangements, securing a location for the hearing, making lodging accommodations if the trip involves spending the night, and other preliminary matters. Court hearings have been held in the community tribal halls and the court brings its mobile recording equipment. The hall is set up to accommodate a court hearing where the judge and clerk are positioned at a table in front of the room, each attorney has a small table to sit at, and the community observers are seated on chairs or benches behind the attorneys.
When the hearing begins, the judge explains the nature of the offense and brief case history leading up to the sentencing. The judge explains the purpose of sentencing in light of the Chaney criteria, describes any statutory sentencing obligations specific to that offense, and requests that the community meet with the appointed circle facilitator to discuss and develop a recommendation that includes information pertinent to the needs of the victim, offender, and community. (In the first few sentencing hearings, Tanana Chiefs Conference Tribal Government Specialist, Lisa Jaeger, acted as the circle facilitator. In later hearings Ms. Jaeger assisted a community member selected to act as the facilitator.) After this explanatory session, the judge then takes a recess while those interested, including the attorneys, victims, and the defendant gather in a talking circle to discuss how this particular offense came to be, the impacts it has had, and what can be done to appropriately remedy the situation. The facilitator helps guide this discussion by identifying harms and needs as part of the process of developing a consensus recommendation for the judge. All in the circle have a chance to participate, but are not required to do so. Circles have lasted from one to several hours in length.
Once a recommendation is formed, the judge is notified and returns, and the hearing continues. The judge asks for a community representative, usually the circle facilitator, to present the community recommendation for the record. The attorneys are then asked whether they have any specific objections or concerns about what has been presented and each attorney has the opportunity to provide recommendations. The defendant is given the final opportunity to address the court, and then the judge normally takes a brief recess to consider this information and formulate the official sentence.
The benefit of these hearings extends beyond any one victim or defendant. Community residents of all ages are witnessing the court system in practice. For some communities, this is the first time state court has ever occurred at their location. Residents have the opportunity to better understand the criminal laws, what governs judges' decisions, and the role of attorneys in the process, and are given the opportunity to assist in matters of community importance. There have been numerous examples of growing trust and respect between these communities and the Alaska Court System. One occurred in the village of Huslia when a village leader invited the district attorney to close the circle in a blessing-something typically reserved to community Elders. Another occurred at the 2012 Tanana Chiefs Conference Tribal Court Development conference. State justice officials were invited to attend, and village leaders from Nulato and Tanana publicly and sincerely, but with a healthy dose of Athabascan humor, expressed gratitude for the justice officials that have come to their villages. Magistrate Judge McLain attests to the changes in attitude he has witnessed and believes that attorneys are more inclined to better serve these village people because they have put faces to the names. According to Magistrate Judge McLain, this has provided "a window into the lives of Bush residents," and the feelings of many in rural Alaska who view the judicial system as racist are being replaced with trust and respect. He notes, "[t]his is bigger than just changing processes. It allows for state laws that apply to all our citizenry to be applied in a way that makes sense in our unique village life."
Community and government leaders understand the importance of this work and the need to capitalize on our collective resources. In the 2012 State of the Judiciary address then Alaska Supreme Court Chief Justice Walter Carpeneti spoke about the growing trend both in Alaska and nationally to try to stop the "rampaging" prison growth and reduce spiraling recidivism rates by applying "smart justice" concepts. He defined smart justice as "weighing-in every criminal case-the likely effectiveness of the actions we take. Further, it means considering the costs of these actions- to our resources, to public safety, and to the collective potential of our citizens." Recognizing that rehabilitative and reentry services are few and far between in many predominantly Native communities, Chief Justice Carpeneti lauded efforts in the Galena region to engage village residents more directly in the cases that affect them. In his words, "The benefit of having the court system operate in a village goes far beyond the outcome of an individual case. Visits have helped foster mutual respect among the state, local, and tribal leaders involved in justice delivery, and have helped build greater community trust and confidence in the ability of our justice system to serve rural areas fairly and adequately."
Adding to then Chief Justice Carpeneti's comments, current Chief Justice Dana Fabe in her 2013 State of the Judiciary address noted:
Every study or survey of rural justice over the past two decades has acknowledged the unique and compelling justice needs of Alaska's small and isolated villages.... Consistent among their recommendations is a theme heard with increasing urgency: the need for greater opportunities for local community leaders and organizations to engage in justice delivery at the local level. Quite simply, for courts to effectively serve the needs of rural residents, justice cannot be something delivered in a far-off court by strangers, but something in which local people-those most intimately affected-can be directly and meaningfully involved.
The changes that have been occurring are relatively new, and more time is needed to determine the effects on crime rates, recidivism rates, and community stability. Yet, the forecast looks optimistic and many have stepped forward voicing satisfaction and support for these changes. The Galena District Court has provided a contemporary example of local engagement in our most rural communities. Tribal leaders and community members appreciate being involved in the process, and judicial decisions are more reflective of the actual needs of victims, defendants, and the community. The people of rural Alaska play very important roles in their communities. Not only are they mothers and fathers, brothers and sisters, grandpas and grandmas, aunties and uncles, they are also tribal court judges, village tribal chiefs, community Elders, and concerned and loving community members. It is their unique roles that make a consensus village community recommendation so important to a state judicial officer facing decisions regarding pretrial release, probation conditions, and appropriate sentences.
Jeff D. May is an associate professor with the Department of Justice, University of Alaska Fairbanks.