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January 28, 2020 Dispute Resolution Magazine

Our Criminal Legal System: Plagued by Problems and Ripe for Reform

How and where dispute resolution professionals can help

Andrea Kupfer Schneider and Cynthia Alkon

The important movement toward reforming the United States' criminal legal system is widespread geographically and politically. Elements of reform have occurred top down, judicially or administratively, as well as bottom up, driven by nonprofit organizations, litigants, court administrators, and community groups. Dispute resolution professionals bring particular skills and mindsets that can advance criminal justice reform. This article looks at three areas where reform can be promoted and powered by dispute resolution professionals: plea bargaining, problem-solving courts, and restorative justice.

As we all know, trials are no longer the dominant resolution process for either criminal or civil cases. Plea bargaining, which has existed since Colonial times, started to be heavily used in the criminal justice system in the middle of the 20th<\/sup> century, and now it is used just about every day in just about every criminal court in the land. As the United States Supreme Court has observed, today plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

Yet like the criminal legal system itself, plea bargaining has many shortcomings and serious critics. Some observers say it reinforces unjust outcomes, including supporting bias in our criminal justice system and enabling mass incarceration. Critics also express concern about extreme power imbalances and the trial penalty, which is the fact that defendants often get significantly more prison time at trial if they reject a plea deal. All these factors contribute to pressuring innocent defendants to plead guilty. (The article by Elayne E. Greenberg in this issue explores how one task force in New York has tried to understand and address this pressure.) 

One first step that dispute resolution professionals can take is to demand better data and information about plea bargaining. Despite its pervasiveness, we actually know surprisingly little about how plea bargaining works in practice. We do not know what percentage of criminal cases have plea offers at the arraignment, the first formal appearance in court. We do not know what percentage of criminal cases plead out early in the case or on the eve of trial. We do not know how frequently prosecutors threaten to add charges or enhancements if the defendant does not take the plea deal - although we know this does happen. We do not even know what percentage of cases plead out to the same charges that were originally filed, compared to lesser charges. We don't know how often, or how, judges get involved in the plea bargaining process. Gathering better data surrounding plea bargaining would surely help determine what kind of reform might be useful to address concerns of inequity, bias, and mass incarceration. 

The lack of transparency also affects the implementation of any reform efforts. Without data showing what is actually happening in plea bargaining - how offers are given and countered; the timing and communication of offers; who gets offers and for what; and so forth, providing judicial oversight and requiring various actors to correct egregious behavior patterns are challenging. This analysis of how plea bargaining works - from negotiation expertise in theory and practice - is long overdue and would be a welcome addition to the criminal legal reform movement. And it is a task that dispute resolution practitioners, with their deep understanding of process design and creative approaches to finding solutions, can be a huge help with as we push institutions to provide this information.

A second concern with plea bargaining is the lack of negotiation training. As two legal educators with particular interest in the art and skills of negotiation, we are shocked at the almost complete lack of training practitioners receive. Most of the legal professionals who are regularly negotiating case outcomes have had little or no training in how to negotiate. Perhaps this stems from a view that negotiation skills cannot be taught. Even the US Supreme Court has argued that plea bargaining - like all negotiation - is a matter of personal style, an individual mix of tactics and approaches, in which effectiveness cannot be defined. But dispute resolution professionals know better and understand that training - in everything from preparation to psychology and behavior economics to social intuition and emotional intelligence - will improve effectiveness.

A plea negotiation - complex, multiparty, and high-stake - deserves the attention of the dispute resolution community without fear that lack of experience in criminal law makes advice useless or that differences between criminal and civil cases are too vast to bridge. Of course there are differences between negotiating plea bargains as compared to corporate contracts. But there are also differences between negotiating corporate contracts and divorce cases. Negotiation theory can easily be applied to plea negotiations, and prosecutors and defense lawyers can improve their negotiation skills in the same way that civil litigators can.

The challenge is actually getting this training institutionalized. Prosecutors and defense lawyers regularly attend continuing legal education programs on trial skills, prosecuting or defending homicide cases or capital cases or cases involving driving while intoxicated, but that training rarely involves negotiating plea bargains. This gap is one that we have tried to address in our work, which has resulted in a textbook with chapters specifically focused on negotiation theory and skills in the context of plea bargaining. (For a look at how one scholar and dispute resolution court coordinator has introduced negotiation training to New Hampshire lawyers, prosecutors, and others, see Jennifer Reynolds' article in this issue.)

  The dispute resolution community has another big opportunity in the creation, oversight, use, and reform of problem-solving courts. These are specialized dockets within the criminal justice system that seek to address the underlying problem or problems contributing to certain criminal offenses, such as drugs or mental health concerns, or focus on particular defendants, such as veterans' court. Since the United States' first drug court was introduced three decades ago, more than 3,000 problem-solving courts have been established nationwide, including drug courts (which make up 44% of all problem-solving courts) and mental health courts (which account for 11% of the total). These courts, which often are set up by judges who are looking for innovative and humane ways to deal with particular populations that they think deserve a different kind of process, include treatment and counseling with the threat of punishment for non-completion.  

But the courts have vocal critics. Scholars and professional groups, such as Physicians for Human Rights, have cited problem-solving courts for having narrow eligibility criteria (limiting which defendants can go to these courts), demanding guilty pleas as part of the process of qualifying for the court (applying undue pressure and surely causing some innocent parties to plead), and for not using appropriate remedies (such as methadone treatment). Standard dispute-system design factors could help both in creating newer courts and evaluating and deciding the future of older, more established ones. For example, are there multiple process options? Can parties loop back and forth among these options? Were stakeholders involved in the design? Is participation truly voluntary? Does the system have both transparency and accountability? These types of questions are not always rigorously applied to problem-solving courts and are definitely not applied consistently across the country.  

Finally, the field of restorative justice offers equally large opportunities for dispute resolution professionals. Restorative justice processes, which are used both as a form of diversion from formal criminal processes and as a post-conviction practice, include diverse processes such as victim-offender mediation, restorative circles, and facilitated dialogue between offenders and other survivors. Although these processes are often created from the ground up and seem to prompt fewer concerns about fairness than problem-solving courts, attention to how these operate through a dispute resolution lens is important. For example, the option of pursuing diversion through restorative justice often turns on the jurisdiction, if not the particular prosecutor. If we in the dispute resolution community believe that restorative justice is a valuable process - and most scholars agree that it is - we should be advocating for its establishment across the country with systemic support and even statutory guidelines that could ensure its use.

The dispute resolution community has important roles to play in examining how processes and institutions such as plea bargaining, problem-solving courts, and restorative justice are used and exploring how they might be made more effective. Decades ago, many professionals became involved with (and leaders of) what was then known as ADR, the "alternative" dispute resolution movement, with the hope that mediation could help improve the world. That same idealism is needed in our criminal legal system.

As a nation, we pour tremendous resources into our criminal justice system, from the cost of policing to courts, lawyers, probation and parole officers, and prisons. Some states are spending more incarcerating their citizens than educating them. In the face of this kind of public spending and the serious impacts on so many communities, we could use more idealism. We could use people who think, no matter how corny (or overwhelming or impossible) it might sound, that we can make this world a better place.

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    Andrea Kupfer Schneider

    Andrea Kupfer Schneider teaches ADR, negotiation, ethics, and international conflict resolution at Marquette University Law School, where she is Professor of law and serves as the Director of the ADR program. She is also the inaugural Director of the Institute for Women’s Leadership at Marquette University. She can be reached at [email protected].

    Cynthia Alkon

    Cynthia Alkon teaches criminal law, negotiation theory and practice, criminal justice, and ADR survey courses at the Texas A&M School of Law, where she is Professor of law and Director of the Criminal Law, Justice & Policy Program. She can be reached at [email protected].