Applicability of ADR in Criminal Cases.

Article for Blog Post Writing Competition 2011 | by Anoop Kumar


April 12th, 20111:45 pm


INTRODUCTION.

Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that are out of court proceedings. Due to fact that pendency of court cases and suits have gone through roofs, ADR has gained paramount significance in almost every civilized dispensation. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation.

In arbitration, the parties rely on a third-party decision-maker to reach binding judgments. In case of negotiation, attorneys of the parties work together to settle disputes. The mechanism of mediation uses a neutral third-party to bring about a voluntary resolution, and settlement.

The criminal jurisprudence is quite different from the ADR mechanism, as in the case of a criminal dispute, penal provision is sought after to place a benchmark. In the case of ADR, some kind of settlement that may not result into court proceeding is sought after.

A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal matters. Mediation is the most sought after form of ADR, where the issue of criminal justice is concerned.

NEED FOR ADR IN CRIMINAL CASES- THE INDIAN SCENARIO.

In order that the rule of law and justice can be administered properly, certain basic steps are to be taken by the state. As far as the picture of pendency is concerned in the civil cases, that can be tackled by the alternatives available such as the ADR mechanisms. But there is some doubt upon the application of ADR in criminal justice. In reference to the criminal justice, the term ADR encompasses a number of practices which are not considered part of traditional criminal justice such as victim/offender mediation; family group conferencing; victim offender-panels; victim assistance programs; community crime prevention programs; sentencing circles; ex-offender assistance; community service; plea bargaining; school programs. It may also take the shape of cautioning and specialist courts (such as Indigenous Courts and Drug Courts).

PLEA BARGAINING.

Plea bargaining may be defined as an agreement in a criminal case between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that his sentence will be minimized, if the accused pleads guilty[1]. In other words, it is an instrument of criminal procedure which reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases[2].

Applicability in India. Keeping in mind that the pendencies of criminal cases have gone through the roofs, the Law Commission of India in its 142nd report suggested reform, which included implementation of plea bargaining in India[3]. Further, to reduce the delay in disposing criminal cases, the 154th Report of the Law Commission recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases, which found a support in Malimath Committee Report.

To give effect to the recommendations, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament.[4] Despite a very huge hue and cry against the amendment, the amendment was accepted and with the effect of same, Chapter XXIA was added in the Code of Criminal Procedure, 1973. The said chapter contains Sections 265 A to 265L, which deal with plea bargaining.

Plea Bargaining in Other Countries. The concept of plea bargaining prevails in England, Canada, and most of the other nations of the British Commonwealth. Earlier Germany was referred to as “the land without plea bargaining”. Subsequently, due to time-taking trials and increasing white-collar crimes in Germany, the system of plea bargaining was instituted by statute[5]. In United States of America, plea bargaining has a vital role to play. White J, in a US case of Brady v. Unites States[6]observed the validity of plea bargaining and upheld its validity.

CRIMINAL ADR PROGRAMS. As far as the development of Criminal ADR procedures is concerned, it took birth from earlier “informal justice” programs[7]. There are various criminal ADR programmes that are running throughout the globe. Some of these are as follows:

  1. Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender reconciliation programs (VORP) or victim reparation programs, in most cases, its purpose is to promote direct communication between victim and offender. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations[8].
  2. Community Dispute Resolution Programmes (CDRP). CDRP seek to dispose of minor conflicts that have not been disposed off and are clogging criminal dockets.
  3. Victim-offender Panels (VOP). VOP developed as a result of the rise of the victims’ rights movement in the last two decades and in particular to the campaign against drunk driving. They often used to provide the convicted drunk drivers with a chance to appreciate human cost of drunk driving on victims and survivors. It also intends to decrease the likelihood of repeat offenses[9].
  4. Victim Assistance Programs[10]. VOCA established the Crime Victim’s Fund, which is supported by all fines that are collected from persons who have been convicted of offenses against the United States, except for fines that are collected through certain environmental statues and other fines that are specifically designated for certain accounts, such as the Postal Service Fund.
  5. Community Crime Prevention Programs[11]. The community crime prevention has included a plethora of activities, including media anti-drug campaigns, silent observer programs, and neighborhood dispute resolution programs.
  6. Private Complaint Mediation Service (PCMS). It provides the mediation as an alternative to the formal judicial process of handling criminal misdemeanor disputes between private citizens. PCMS gets its authority from Administrative Rule 9.02 of the Hamilton County Municipal Court[12].

Apart from the above programmes, there are also available the mechanism of sentencing circles, ex-offender assistance, community service, school programs, and specialist courts. These programmes point towards a gradual shift from deterrence to reparation, as a mode of criminal justice in some nations. In a nutshell, they show the application of restorative justice.

Appraisal OF CRIMINAL ADR SYSTEMS.

Some criminal ADR programmes like Victim-Offender Mediation Programs have been successfully mediating to bring justice between crime victims and offenders for over twenty years. There are now over 300 such programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand[13].

Some statistics from a slice of the North American programs reveal that about two-thirds of the cases referred resulted in a face-to-face mediation meeting; over 95% of the cases mediated resulted in a written restitution agreement; over 90% of those restitution agreements are completed within one year. On the other hand, the actual rate of payment of court-ordered restitution (nationally) is typically only from 20-30%[14].

Privatizing the public harm. With the growth of the ADR movement, Owen Fiss in his seminal article Against Settlement, argued that ADR advocates naively painted settlement as a “perfect substitute for judgment” by trivializing the remedial role of lawsuits and privatizing disputes at the cost of public justice[15].

Mediation mostly being followed. Mediation has been adopted in various countries as a means to resolve the criminal disputes. To be specific, mediation has been consistently applied in juvenile justice programmes.

As an example, Romania has been applying mediation to the field of Criminal Law. Articles 67-70 in the Law 192/2006 of Romania lay down provisions regarding mediation in the criminal cases[16]. In countries like Canada, England, Finland, and even in the United States, the system of mediation is being used to resolve the juvenile offences[17].

Though, the mediation of severely violent crimes is not usual, in a chunk of victim-offender programs, victims and survivors of severely violent crimes, including murders and sexual assaults, are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, returns their stolen sense of safety and control in their lives[18]. The emphasis is upon healing and closure. But in cases of severely violent crimes, victim-offender mediation can not replace punishment.

Not a flawless process. There have been several criticisms against the applicability of ADR in criminal disputes, which render ADR techniques unlikely to succeed. The victim-offender mediation considered to be highly emotionally charged. Further mediation is argued to be successful where there is a moderate level of conflict. Further, the offender may feel to be under pressure to reach an agreement, rather than genuinely seeking to repair the harm done.

Other criticisms include that ADR is an appropriate remedy, where the parties have an ongoing relationship (which provides a significant motivation to achieve reconciliation). But this is not usually the case with victim-offender mediations.


[1] Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy, INDLAW NEWS.COM, http://www.indlawnews.com/display.aspx?4762 (last visited 10th Apr. 2010).

[2] Id.

[3] LAW COMMISSION OF INDIA REPORTS (101 – 169), http://lawcommissionofindia.nic.in/101-169/index101-169.htm (last visited 11th Apr. 2010).

[4] State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384(386).

[5] K.P. Pradeep, Plea Bargaining- New Horizon in Criminal Jurisprudence, available at http://kja.nic.in/article/PLEA%20BARGAINING.pdf (last visited 12th Apr. 2010).

[6] 397 U. S. 742 (1970), also available at JUSTIA: US SUPREME COURT CENTRE http://supreme.justia.com/us/397/742/case.html (last visited 12th Apr. 2010).

[7] Melissa Lewis & Les McCrimmon, The Role of ADR Processes in the Criminal Justice System: A View from Australia, available at http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon.pdf. (last visited 5th Apr. 2010)

[8] John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks”, Western Criminology Review 1 (1). [Online]. Available: http://wcr.sonoma.edu/v1n1/gehm.html. (Last visited 5th Apr. 2010).

[9] RESTORATIVE JUSTICE ONLINE: Victim Offender Panels, http://www.restorativejustice.org/university-classroom/01introduction/tutorial-introduction-to-restorative-justice/processes/panels (last visited 5th Apr. 2010)

[10]OVC: OVC Links to Victim Assistance & Compensation Programs, http://www.ojp.usdoj.gov/ovc/help/links.htm (last visited 6th Apr. 2010).

[11] Prevention: Community Programs – The History Of Community Crime Prevention, Chicago Areas Project, Political Mobilization, Evaluations Of Community Crime Prevention Programs, http://law.jrank.org/pages/1739/Prevention-Community-Programs.html#ixzz0kxrprMHD (last visited 6th Apr. 2010).

[12] MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-co.org/MunicipalCourt/mediation/mediation_of_criminal.htm (last visited 15th Apr. 2010).

[13] Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders? VORP, available at http://www.vorp.com/articles/crime.html (last visited 14th Apr. 2010).

[14] Id.

[15] Grace, Maggie T., Criminal Alternative Dispute Resolution, Restoring Justice, Respecting Responsibility, and Renewing Public Norms. Available at  http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1017&context=student_pubs

[16] Zeno Daniel Sustac, Mediation in the Criminal Law, MEDIATE.COM, http://www.mediate.com/articles/sustacZ3.cfm, (last visited 15th Apr, 2010).
[17]  Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation
In Juvenile Criminal Cases, http://www.lectlaw.com/files/cjs08.htm (last visited 15th Apr. 2010).
[18] Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders? VORP, available at http://www.vorp.com/articles/crime.html (last visited 14th Apr. 2010).
 

Article by-

Anoop Kumar,

5th Year B.A.LL.B. (Hon.),

Dr. Ram Manohar Lohiya National Law University, Lucknow.

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

Enter your Email Address to Get Similar Articles in your Inbox Free!

  

MightyLaws is not responsible or liable for the views expressed by the authors. The articles are general information and should not be treated as legal advice. Please read the Disclaimer for further clarifications.