Constructive Plea Bargaining; Towards Judicial Conflict Resolution

Abstract

In today’s plea-bargaining reality, the role of judges in processing criminal legal conflicts has changed dramatically. Judges today preside over decreasing number of trials, and instead they are involved in various activities to promote – and approve, plea bargains. Such activities are not fully regulated and documented, but they can be studied, improved and refined by using methods and concepts from the field of conflict resolution. The major claim of this paper is that judges’ current role in approving plea-bargains (which is often criticized) offers a new terrain of decision-making. This new terrain opens a constructive landscape of judicial discretion, in which judges may integrate perceptions of reconstructive law with perceptions of reconstructive conflict, bring together elements of retributive justice and legalistic reasoning, with possibilities of inserting elements of restorative justice and problem solving into the legal domain.

In this paper we present the foundation for a conflict resolution perspective for understanding judges’ activities in processing criminal conflicts along the different stages of the criminal process, and primarily in their work towards plea-bargaining. The paper presents a “conflict perspective” of criminal legal disputes, which borrows from John Burton’s theory of conflict resolution, and outlines organizing principles of a jurisprudence of conflict resolution in order to understand and enhance judges’ management of criminal cases. An innovative practice of judicial-lead “criminal mediation” is examined in this context.

Keywords: criminal justice, conflict resolution, judges