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December 19, 2007

The intersection of crim law and dispute resolution

Michael O'Hear and Andrea Schneider have posted on SSRN this short and interesting piece entitled "Dispute Resolution in Criminal Law." Here is the abstract:

Although the study of plea bargaining would seem, by its nature, to invite interdisciplinary collaboration between criminal law and dispute resolution scholars, there has been remarkably little cross-fertilization between the fields.  In this Essay, we discuss the suitability of conceptualizing plea bargaining as a form of dispute resolution and describe some of the useful things that criminal law scholars might learn from dispute resolution scholars, and vice versa. The Essay, which introduces a symposium issue of the Marquette Law Review devoted to plea bargaining, also briefly previews the other papers included in the symposium.

UPDATE:  A helpful reader sent me a note detailing that others are working on the crim/ADR connection:

You may be interested to know that the winning entry in this year's ABA Section of Dispute Resolution essay contest for law students also focused on applying ADR to criminal cases; specifically, the article encourages adaptation of victim-offender mediation to the cases of those who have been exonerated after wrongful convictions.  The article addresses, among other things, the anger that victims continue to feel toward those convicted of the crimes against them, even when the evidence of innocence is substantial, and suggests mediation as a tool to heal the anger for both victims and the wrongfully convicted.

Here is the link to the Section of Dispute Resolution website, which has a link to the winning entry.

December 19, 2007 at 11:02 PM | Permalink

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Comments

An interesting hearing on c-span last night brought this to mind. A female employee of KBR in Iraq was raped by co-workers. She was taken to the military medical facility where evidence was gathered via a rape kit. The rape kit was then handed to the security person from KBR. Unbelievably, the rape kit disappeared and criminal charges were not initiated. The employee then attempted to bring civil charges against KBR but was denied because there had been an arbitration clause in the 18 page employment agreement she had signed.

Arbitration, mediation, and dispute resolution sound so reasonable, but do they have anything to do with justice?

Posted by: beth curtis | Dec 20, 2007 11:07:52 AM

The fact that victims are still pissed off at the poor defendant after he has been exonerated (I don't care who rots in prison as long as SOMEONE does!) is proof positive to me why the victim's rights movement needs to be stopped in its tracks.

I think mediation/ADR is improper in criminal cases because I believe plea bargaining is improper and should not be permitted. It's too coercive. The right to a trial (whether jury or at the defendant's election, by judge) should not be waivable. This will force prosecutors to only prosecute the truly "real" crimes due to limited executive and judicial resources. Plus, if someone is truly guilty, they shouldn't be able to bargain their way out of a proper sentence. And finally, the fact that when plea bargaining is permitted, those who select their right to go to trial are heavily punished for doing so.

Does anyone really expect prosecutors and defense attorneys (along with their clients) to drive over to a mediator's office and waste a day in mediation? Who pays for the mediator? And please tell me the victim is not sitting in there with the prosecutor as a "party" helping the state negotiate.

Posted by: bruce | Dec 20, 2007 2:11:05 PM

Without plea bargaining there would be far fewer indictments. Plea bargaining is a very easy way to build a case through threat and intimidation. Going to trial is brutal and expensive and to most any alternative is preferable.
Beth

Posted by: beth curtis | Dec 20, 2007 5:42:24 PM

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