Promising Sentencing Practice No. 3
By Judge Gary Schurrer (Minnesota)
This section defines what a sentencing circle is, and discusses how these circles work, how circles can be powerful tools, and how justice systems can use circles to assist in the rehabilitation of repeat DWI offenders.
The discussion in this section is based on the author’s experiences in Washington County, Minnesota. In Minnesota, sentencing circles are authorized by statute,32 and their use has been upheld by the Minnesota State Supreme Court.33 While these anecdotal experiences appear promising, additional empirical studies need to be conducted to establish the wide-spread effectiveness of sentencing circles.
What Are Sentencing Circles?
Circles are an old way of communicating, resolving conflicts, and affecting changes. In ancient cultures, groups used this process to make decisions. Circles have been used in recent times in Native American and aboriginal cultures. Circles rely on consensus-based decision-making in which all participants are equal, and titles, rank, and power are ignored. Circles get their name from the fact that meetings are conducted by people sitting in a circular fashion, which further reinforces the idea of equality.
Sentencing circles are a part of the restorative justice concept that attempts to heal the harm caused by crime and other conflicts within a community. A sentencing circle is a restorative process because it requires the offender to make reparation to the victim and to others harmed by the offending behavior, including the community. It also expects offenders to restore themselves by addressing those personal issues that contributed to the offending behavior, such as alcohol abuse or drug addiction. The purpose of sentencing circles is to recognize the needs of victims of crime, secure the participation of the community, and identify the rehabilitative needs of the offender. These circles provide a forum for all persons affected by the offending behavior, including victims and family members, as well as a forum for those community members who, while not directly affected by the offense, are generally concerned about safety in their community.
Sentencing circles are premised on three principles: (1) that a criminal offense constitutes a breach of the relationship between the offender and the victim, and between the offender and the community; (2) that the stability of the community depends on healing these breaches; and (3) that the community is in a better position than the court to address the causes of crime, which are often rooted in the economic or social fabric of the community. A sentencing circle is a community-directed process, conducted in partnership with the criminal justice system, to develop a consensus on an appropriate sentencing plan that addresses the concerns of all interested parties.
Sentencing circles have been used for many years in Australia, Canada, and New Zealand. Their use in the United States is still fairly new.
Use of sentencing circles is not appropriate in all cases, but has been proved effective in cases involving motivated offenders who have the support of their communities.34
How Circles Work
The goal of the circle is to develop a consensus. Thus, participants do not direct their remarks to a circle “leader,” but instead direct their remarks to the circle as a whole.
A talking piece controls the discussion in a circle. In Native American traditions, the talking piece was usually an eagle feather connecting the spiritual nature of life to the issues discussed by the circle participants. The circle requires the holder of the eagle feather to be truthful and the listeners to be respectful by listening carefully to what the holder says. In today’s circles, each community chooses a talking piece that is meaningful to it. Only the person holding the talking piece may speak; all others must listen. This form of communication is different from informal methods of discussion that involve talking back and forth, which can lead to a greater emphasis on talking rather than listening. The talking piece is passed from person to person, and each is allowed to speak and to say what the person wishes to say. Consequently, when participating in a circle, most of the time is spent listening, not talking.
The Power of Circles
One intriguing aspect of the circle is the common outpouring of private, personal, and usually emotional information. It is common for a person who has never told anyone anything personal to share very personal information in the circle. It is not entirely clear why this occurs. Some believe that the power of the circle comes from the fact that the circle participants care about the other participants, and this supportive environment allows for these revelations. This power affects change in the participants. The willingness to be there for all involved is accomplished without compensation or salary. A common rule is that “what is said in the circle stays in the circle.” This sense of confidentiality also creates a safe environment. Participants return to circles because they provide opportunities to witness the institution of values and a sense of spirituality into the participants’ lives.
In a sentencing circle, the offender, without defense counsel to act as a buffer and to speak on the offender’s behalf, must directly address the victim and other community members of the circle and explain his or her actions. In the circle, the offender will also hear directly about the pain and fear experienced by the victim and the disappointment of the community. While expressions of remorse in a formal court setting often sound hollow and insincere, the remorse expressed in a circle is often emotional and includes a genuine apology.
A sentencing circle allows the offender to participate in shaping the sentencing plan, thereby taking back a measure of control over his or her life. It also gives the offender the opportunity to make amends to the victim, and to the offender’s community and family.
The Impact of Circles
Researchers Mark Umbreit, Robert Coates and Betty Vos performed an analysis of 63 empirical studies in 5 countries to determine the impact of circles.35 They analyzed the impact with regard to four variables: (1) client satisfaction, (2) diversion, (3) recidivism, and (4) cost.36 These studies did not address circles used in relationship to DWI offenses specifically, so the reader is cautioned to take that into consideration. With regard to client satisfaction (which includes impacts upon victims and offenders), they found that “[p]reliminary research efforts suggest that talking circles, healing circles, and sentencing circles have positively impacted the lives of those who have participated in them.”37 Nevertheless, they found that few studies have studied the impact of circles alone. They examined studies conducted in the Manitoba and Alberta Provinces and Yukon Territory in Canada, and in Minnesota.38 While offenders and victims lauded the approach, some criminal justice decision-makers found the approach to be too time consuming and only appropriate for minor cases and first time offenders.39 With regard to recidivism, they found that “recidivism findings across a fair number of sites and settings suggest that restorative justice conferencing approaches are at least as viable at recidivism reduction as traditional approaches.”40 The authors caution, however, that recidivism alone should not be used to determine the success of a program: “[I]f recidivism is regarded as the most important desired outcome, it may become the only desired outcome and the ‘restorative’ program may over time be stripped of those qualities that make it restorative and that contribute to reduction in further offending.”41
Using Circles in Sentencing DWI Offenders
How can circles be used in sentencing DWI offenders? Community sentencing circles are comprised of community volunteers who wish to deal with the problems of crime in their communities by working with others. These volunteers receive training in the circle process and agree to participate in circles, accepting referrals of offenders from the courts.
The process begins after the offender pleads guilty to the crime charged. The guilty plea is evidence that offenders accept responsibility for their actions. Offenders must also express a desire to change their lives by changing their behavior patterns. Without this commitment by the offender, the court will not refer the case to a sentencing circle.
The offender must complete a written application form and provide it to the circle volunteers in the community. On receipt and review of the application, the circle arranges an application circle, attended by community circle volunteers, the offender, and a support person for the offender. During those circles, the discussions focus on the offenders’ desire to change their lives and how the circle can assist in the process. This first circle also initiates the offender and allows the offender to experience the circle’s rules, process, and values.
After the application circle, the community members decide whether to accept the case. The main criterion used in determining whether to take a case is whether the victim is willing to allow the offender to participate even though the victim may not ultimately join the circle. A second criterion is whether offenders manifest a serious desire to make a change in their lives. If they accept the case, they will schedule additional circles, sometimes once per month or sometimes every other week. In these circles, they begin the process of analyzing the factors that brought the offender into the criminal justice system. Those areas are not merely the chemical dependency issues for a DWI offender, but also deeper, underlying issues that may exist, such as depression, anger, and familial or relationship stress. The circles address these issues as the offender’s trust level with the circle volunteers grows.
The circles are value-based. Circle volunteers agree to abide by five values: respect, humility, compassion, honesty, and spirituality. Through consensus, the circle enters into compacts or agreements with the offender that the offender will do certain things to address the factors that led to the offense. For example, the compact may require that the offender attend chemical dependency treatment and Alcoholics Anonymous meetings, and also abstain from the use of alcohol and drugs. The compact may also require the offender to call a circle volunteer at least once per week so the volunteer can ascertain how the offender is doing with sobriety. Other requirements may also be imposed, taking into account the offender’s unique circumstances and needs.
The primary role of the circle volunteers is to listen. On occasion, the circle volunteers may suggest to offenders areas in their lives that they should review and change. Offenders always play the leading role in the process of taking the steps necessary to change their lifestyles. Circle volunteers hold the offenders accountable for their actions and require them to follow through and abide by the compact’s terms. As the offender proceeds through the process, the circle volunteers and the offender will often change the compact terms to meet the offender’s particular needs.
When all members of the circle, including the offenders, believe the offenders have demonstrated a commitment to change their lifestyles and have begun to internalize the values of the community, the circle will schedule a sentencing circle. The court and the circle volunteers do not place a time limit on this process. In most cases, the circle volunteers engage in a number of circles before calling for the sentencing circle after four to six months. In difficult cases, the offender and the circle volunteers can participate in circles for nearly a year before the volunteers request the sentencing circle. The circle volunteers invite the judge, prosecutor, defense attorney, offender support person, victim (if any), and the public to attend and be part of the sentencing circle. In my experience, the prosecutor and defense attorney generally waive their right to appear in the circle. At this circle, the circle volunteers and the offender discuss the offender’s progress in changing lifestyle, and the group dynamics do not appear to be affected by any new members who join the circle.
Through discussion and consensus, applying the values of the circle, all participants of the sentencing circle work towards determining the offender’s sentence. The sentencing circle participants do not always reach consensus in the first sentencing circle. In this event, the circle participants agree to call for an additional sentencing circle. When all participants agree on a sentence, they establish a formal sentence. The sentence requires the offender to continue in the circle for an established period of time and to abide by all the conditions of the sentence before the formal sentencing hearing.
The Court’s Role
Following the sentencing circle, the offender returns to court, and the judge formally sentences the offender, imposing in court the sentence that the sentencing circle reached. On successful completion of all the conditions of the sentence, the court discharges the offender from probation, and the offender is no longer required to participate in the circles.
In courts that use a drug court or DWI court process or when the judge wishes to determine the sentence, the court may still use circles to assist offenders. Instead of using circles to sentence offenders, courts may use them to assist offenders in transitioning from a chemical/alcohol-using community to the general community. Circles may also help offenders make life-changing decisions that lead to value-driven lives. Community volunteers may mentor and provide a model for offenders, and ease the sometimes difficult transitions that need to occur.
The community circle process makes it possible for the court to use community resources that might otherwise go unused. In circles, offenders feel a greater accountability to community members, while the circles decrease the stigmatizing effects that occur in the traditional criminal justice system. The deep relationship created between offenders and the community in the circle triggers a profound effort on the part of offenders to truthfully analyze their lifestyles and to begin the process of becoming valued community members.