When Cultures Clash, Should Punishment Fit the Criminal?

Article excerpt

After two young Alaskan Indians were convicted of a brutal beating last summer, a member of their tribe convinced the court to allow the boys to be punished according to native custom. The agreement has set off a wide-ranging debate about incarceration and rehabilitation but leaves one question unanswered: Is justice being served?

Unexpected acts of violence are almost commonplace these days, but in a small town in Washington state, what started as a straightforward case of assault has set off a debate that entangles complicated questions about crime, justice and culture.

The facts of the case are not disputed. Last summer, Simon Roberts and Adrian Guthrie, 17-year-olds in Everett, Wash., violently beat a 24-year-old pizza deliveryman named Tim Whittlesey with a baseball bat, robbing him of $40, a pizza, most of his hearing and some of his eyesight. In May, the boys -- who are cousins -- pleaded guilty in state court and were sentenced to several years in prison.

But soon after the sentencing, a man named Rudy James approached Superior Court Judge James Allendoerfer. James is a member of the Tlingit tribe of Alaska natives -- and so are Roberts and Guthrie. The Tlingits (pronounced klinkit) are the largest tribe in Alaska; their officially recognized home is the sleepy fishing village of Klawock, population 600.

James offered Allendoerfer an unusual deal: Release the boys into the custody of their tribe, and entrust the Tlingits to mete out their own justice. Allendoerfer agreed, and allowed James to convene and head a 13-member tribal court. The court rendered a harsh and striking decision: banishment.

On Sept. 10, the boys were taken to separate, uninhabited Aleutian Islands where they will spend about 18 months subsisting by hunting, fishing and gathering. Before they left, villagers helped the boys construct small, prefabricated huts that will provide them some shelter against rain and snow. During the first week in the islands, village elders helped the boys assemble their huts and taught them the basics of wilderness survival. The village also provided emergency food and drinking water, although much of the water around the islands is potable. The boys were permitted to take their pet dogs (for companionship and to warn them of dangerous animals). In accordance with Allendoerfer's conditions, the elders will visit the boys periodically and report to the judge about how they're faring.

"It was a very powerful experience," says Diana Winn-James, a tribal child-welfare specialist in Klawock who spent the first week with the boys and who will prepare the reports to Allendoerfer. "The boys worked very hard; they showed great respect to the elders. They truly want to work to earn back the respect of their tribe." At the end of the 18 months, Allendoerfer will meet with the boys to decide whether to impose additional prison time.

"I felt that this was something worth trying," explains Allendoerfer. "It seemed like a very important chance to attempt something different. We certainly need innovative approaches to crime, especially for violent youth, and this alternative struck me as a fine and sensible one."

"Bah, humbug," retorts Michael Magee, the prosecutor in the original trial, who is still furious over the decision. "It's beyond my ken why Judge Allendoerfer participated in this ridiculous farce. It's bizarre."

The case is a complex one, not only in its bedeviling details but also in the larger issues it has raised. Of these, the largest is the issue of American Indian rights; specifically, Indian rights to order their society according to their own codes of ethics and justice.

But for Jim Townsend, Snohomish County prosecutor, it sets a disturbing precedent. "I don't mind experimentation or the idea of looking for a better tool," he says. "But our criminal justice system is supposed to be fair and color-blind. We must not begin to make it race-specific, to give preferential treatment to one group based on their ethnic status. …