Easing the Burden: Mediating Misdemeanor Criminal Matters
Teninbaum, Gabriel H., Dispute Resolution Journal
In 2004, Massachusetts' highest court ordered a county sheriff to free dozens of indigent criminal defendants awaiting trial due to a shortage of public defenders to represent them.1 This situation highlighted a systemic problem in the American criminal justice system: the courts simply cannot keep up with the volume of criminal cases.2 In response to this problem, some jurisdictions have begun to use alternative means to divert matters from the criminal litigation track.3 One approach, which is the focus of this article, is the use of victim-offender mediation programs to resolve minor crimes.4 These programs resolve criminal complaints without a trial by having the victim and the offender enter into a negotiated agreement.5 This article highlights some of the legal and procedural issues that criminal mediation raises and discusses them in the context of existing criminal mediation programs.6
Mediation between the parties to a criminal act provides victims and offenders with a forum to mete out justice. As in mediation of civil disputes, both sides have an opportunity to explain their behavior to each other.7 Victims can describe how they suffered, vent their anger, and condemn the conduct of the offender who harmed them.8 For their part, offenders can explain what they did and why from their own perspective.9 Victims hear what happened directly from their offender in his or her own words. Thus, victims can come to understand, without condoning, what the offender did.10
The alternative-a courtroom trial-is both inefficient and unsatisfying for victims because they do not have the opportunity to participate in the process or hear the offender's story. The reason is that in a criminal prosecution, the work of investigating, planning pretrial and trial strategy, and dealing with motions, trial dates and the like takes place among attorneys, without the participation of the defendant or the victim.11 Most of the attorneys' work is addressed toward reaching a plea bargain, rather than going to trial. If there is a trial and the criminal defendant does testify in his or her own defense, the story is elicited only through question and answer. This leaves no opportunity for the defendant to express contrition and remorse, except at sentencing, if convicted.12
Consider a typical offender-a vandal, maybe, or a low-level drug dealer-in a typical small criminal case. From the time of arrest to sentencing, criminal procedure pays little heed to his expressions of contrition. Beginning with arrest, he enters an adversarial system in which two lawyers, not the defendant and the victim, are the main actors. Often operating under staggering caseloads, the lawyers are concerned with negotiating just and speedy dispositions. In most cases, this means cutting deals on charges, pleas and sentences.13
In mediation, the victim and offender are in the room together. They each can speak and are not restricted to a script orchestrated by a lawyer. The offender can express regret, remorse, sadness, empathy or other feelings. A victim who believes the offender's feelings of remorse are genuine may feel that justice has been done, even though the offender may avoid incarceration. Thus, in this situation, the offender can make amends in a way that avoids straining an already overburdened criminal justice system.
Mediating criminal disputes does require some modification of the traditional philosophy of the criminal justice system, which has as its goal to seek justice on behalf of society as a whole, and not for the individual victim.14 If mediation is to work in criminal matters, courts and lawmakers must accept that victims themselves have a cognizable personal interest in criminal litigation and that seeking justice for the victim is, at least in part, one of the reasons for prosecuting crime.
Issues Raised by Criminal Mediation
For a mediation to work optimally, the negotiation should be between people of equal or similar bargaining power. …