Professor Jennifer Reynolds: Dispute Resolution in Criminal Contexts

Professor Jennifer Reynolds is an associate professor at the University of Oregon School of Law, visiting this year at Harvard Law School.  This spring, she is teaching “Advanced Negotiation: Alternative Dispute Resolution in the Criminal Context.”

This course is new for me and new for HLS. That said, alternative processes in the criminal system are not new. Think plea bargaining, drug courts, victim-offender mediation, and restorative justice. These processes have become part of the criminal justice landscape.

But just because they exist does not mean they are working well or properly, or even to their full potential. Plea bargaining too often leads to unjust results. Problem-solving courts, which adopt more holistic understandings of culpability and punishment, demand a great deal of collaboration and creativity. Restorative justice stands in stark contrast with many of the traditional justifications and methods of criminal law, and can be a tough sell with the public. All of these alternative processes, therefore, raise considerable normative and implementation concerns.

More work is needed, and the dispute resolution community has potentially a great deal to offer. Dispute resolution scholars and practitioners have worked for decades on creative conflict management, process innovation, and large-scale system reforms in the law. These competencies could prove especially invaluable as policymakers and state officials evaluate and improve criminal justice systems.

I began thinking about the crossover possibilities between criminal law and ADR a few years ago, after watching a YouTube video called “Don’t Talk to the Police.” This video was posted in 2012 and features James Duane (HLS ’84), a criminal law professor at Regent University. According to Professor Duane, and consistent with what every 1L learns, you should never share information with the police because the institutional design (structure, laws, incentives, prerogatives) of our criminal justice system creates an unacceptable risk of prosecution, even for an innocent person.

This advice—never talk, never cooperate, never trust the other side—makes sense, of course. Yet, I was quite disconcerted while watching the video, and realized afterward that this “never talk, never cooperate, never trust the other side” advice is the opposite of what I had been teaching for years in the context of ADR.

For example, when engaging in integrative (value-creating) bargaining, negotiators focus on finding opportunities to share interests, gather information, invent options, build rapport, and foster trust. We recognize that sharing information may leave us vulnerable to exploitation by the other side, so we seek strategies for mitigating possible risks. But we would never want to shut down dialogue completely, because that would make it impossible for us to cultivate productive working relationships and address information asymmetries that would allow us to generate options for mutual gain.

But we typically don’t count possible arrest and punishment among the risks of sharing information. Indeed, many of the norms and practices of negotiation and ADR take for granted that these strategies are primarily for a civil context.  In this context, there is a greater likelihood of the formal equality of participants and their viewpoints, emphasis on the importance of informed consent and transparency, and the freedom to pursue other alternatives. None of these baseline assumptions are necessarily the case in the criminal context.

Given these foundational differences, I began wondering whether and how conventional ADR norms and practices could or should be exported into the criminal context. What might be the benefits and downsides of doing so, especially given the deficiencies of our current criminal justice regime?

With this in mind, I started teaching plea bargaining more regularly in my basic negotiation course, and began following the scholarship of colleagues who were working at the intersection of dispute resolution and criminal law. From this work, I became fascinated with problem-solving courts and restorative justice, two related movements featuring innovative, interest-based, and more situationally appropriate methods in criminal and quasi-criminal contexts. I began working with the federal reentry program in Eugene, Oregon and started consulting with Oregon’s Title IX office on possible informal resolution processes for certain kinds of cases.

When I was asked to visit at HLS this year, I decided to create a pilot course that would let me pull together and build on these efforts. The course is styled as an advanced negotiation offering and will provide students with the opportunity to explore whether and how ADR theories and methods are useful in criminal and quasi-criminal contexts. Very few law schools in the United States offer courses in this area. My colleagues Andrea Kupfer Schneider (Marquette) and Cynthia Alkon (Texas A&M) are in the process of writing the first criminal ADR casebook on the market, and they have graciously offered to let me use drafts of this casebook with my students next semester. Planned topics are plea bargaining, problem-solving courts, restorative justice, and the treatment of juvenile offenders.

To the readers, I welcome any thoughts you may have on this subject, or any materials you believe are helpful to include in the curriculum.

Written by

Samantha is a 2L at HLS. She is interested criminal justice reform and plans to pursue a career in public defense. She currently works as a student attorney at the Harvard Prison Legal Assistance Project and is a co-director of the Harvard ACLU's Criminal Law Reform group. During her 1L summer, Samantha worked on state habeas corpus petitions for death row inmates at the Office of Capital and Forensic Writs in Austin, Texas. Prior to law school she worked as a paralegal at a criminal defense law firm, and received her B.A. in History from Brown University.

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