This week, I visited with a friend working in restorative justice. Imagine the impact on recidivism if we could rehabilitate offenders through reconciliation with crime victims and with the community. For the victim of a crime, “I’ve done my time” is not a very satisfying reassurance of future safety. It doesn’t impart peace.
An ancestor, Old Hop, was head man of Chota Old Town before 1788. The Cherokee Overhill town is now under a lake in Monroe County, Tennessee. Chota was a sanctuary town that practiced restorative justice. If a person offended his community in a Cherokee town and was driven away either by humiliation or by his own feelings of shame, if he could make it to Chota, he would be given sanctuary. With the passage of time and based upon behavior, his transgression would be forgiven.
In Cherokee culture, it is said of back then, that if someone committed a murder, the killer was expected to assume the role of the decedent, fulfilling the duties of the decedent in that social group. The offender would build arbors and hunt, prepare meat and perform ceremonial duties that the deceased loved one was no longer around to do. The offender would set things right and prevent further hardship, minimizing the impact of his actions on the bereaved family, the clan and community.
Today, we are far separated from a kind of justice that would make a place for a killer in substitute for a beloved family member. Today, one who tried to make it up to the children, spouse and parents of a crime victim might be tortured in retribution. But retribution dehumanizes the person who calls for it.
In these modern times, we sometimes hear those who demand justice for a victim, but fail to see the irony of calling for the strictest punishment. They don’t understand what is in their best interest. On the other hand, one of the most touching charities is when family members of a crime victim tell the sentencing judge and the media that they don’t ask for the death penalty because they don’t want any other family members to suffer the depth of loss they have experienced. Sympathy, empathy and seeking peace are the signs of emotional intelligence.
Sympathizing with the victim is logically consistent with trying to make sense of a senseless tragedy. There is an art to justice. Lawmakers keep strengthening sentencing, but in doing so, they restrict judges’ ability to craft solutions that are uniquely appropriate. They take away creative solutions. When voters take an overly simplistic approach, retaining strict judges and replacing judges who use situational sentencing, we run the danger of further damaging a system that does not serve communities and crime victims. Great societies honor peace. Retribution is a stop-gap measure that doesn’t transform the outcome.
This week, we heard Rev. Al Sharpton say, “There’s a confusion in this country about peace versus quiet. Peace is the presence of justice. You can’t tell us to shut up and suffer. We must speak up when there is an injustice.” Those of us who work in the legal system mostly share the view that the best outcome is one in which everyone gets some comfort and sense of justice. In every criminal prosecution, we can understand the underlying root causes of tragedy. And if we want better communities, we can address some of those conditions to make authentic, lasting community peace and safety.
Restorative justice is about the same kind of "setting aright" that Cherokees once practiced. If injustice is imbalance and unfairness, then justice is the kind of peace that satisfies. There is much unique, situational healing that can be done, and should be done.
Kathy Tibbits is a Cherokee citizen, attorney, and artist living at Lake Tenkiller.