Law enforcement, and other segments of Alaska’s justice system, are quite concerned about deep changes the Legislature began making to the state criminal code this year, according to a story published by KYUK Public Media.
The aim of Senate Bill 91 is to reduce sentences and jail time for many low-level offenders, opening the way to more rehabilitation and treatment options as well as reducing recidivism. In Western Alaska, proponents say that this could give local tribes power to take a seat at the table, but are they ready for that increased responsibility?
As Alaska tribes continue to explore tribal sovereignty by looking into taking allotments and corporation land into federal trust, an opportunity may be opening with the new criminal code revision. Alaska State Trooper Capt. Berry Wilson thinks so, anyway.
“I think it’s a great opportunity for coordinated and cooperative interaction between the state system and the tribal system in a manner that helps prevent incarceration and institutionalization of individuals that we can fix,” Wilson said.
SB 91 eases punishments for low-level crimes like alcohol consumption, which make up a huge portion of the crimes in Western Alaska. Convictions for these offenses can set offenders on a path of lifelong incarceration. Wilson said that SB 91 leaves room for tribal courts to step in before that happens, and he is pushing for that.
“It gives us a tool, it really does,” he said. “If a tribal court writes out a [domestic violence] order and says, ‘This is what you can’t do’, we use that just as we would use a state order.”
Tribal courts have a reputation for being unorthodox in the way they prosecute crimes and dole out punishment, however.
“I’ve got a friend in Kwethluk who’s an alcoholic, terrible alcoholic,” said Jim Valcarce, a Bethel attorney who played a role in designing SB 91. “And when he gets caught, he would love to go to the state rather than go through the tribal court up there because they make him do stuff. They make him work. One day he had to empty honey buckets. And to him, he says a month in jail is way easier than spending one day working for the tribal court in Kwethluk. That’s smart justice because the community’s getting something back, it actually causes him to re-think what he’s gonna do, and the community has a vested interest now.”
Valcarce likes that many tribal courts employ traditional knowledge during the process, but in one area that can be a problem.
“By simply banishing somebody, or sending them out of town, you just create a problem for somebody else,” Valcarce said. “And I just think tribal courts who are doing that have not thought that through, because I don’t think they’ve been trained to understand that.”
Banishment made headlines this summer in the case of Derek Adams, who was banished from his village of Nunam Iqua after being involved in a fire that killed three people. Though the state of Alaska found Adams to be guilty only of criminal negligence, three different villages sentenced him to banishment even before the trial had taken place. Tribal courts do not have clear standards for due process, and this can be problematic when sentences conflict with state or federal rulings.
“One of the things that’s really important when we look at the banishment issue as it comes forth from a community is, ‘Was there due process for the individual that is being banished?'” Wilson said. :You can’t just say ‘We don’t like you, you’re banished, go away.’ You don’t have any options, you don’t have any appeal, you don’t have any say, you don’t have any ability to controvert. That’s lack of due process.”
Both Orutsararmiut Native Council and the village of Emmonak are building a tribal justice program, but these new courts could be in for a rough ride as they take on hard cases that they don’t yet have the capacity to deal with.
SB 91 will take three years to fully go into effect, and next year the Legislature is likely to make revisions.
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