What are the relationships among alternative dispute resolution programs, speedy trials, and court backlogs? What do you think would happen if plea bargaining, which allows settlements in about 70-80% of all cases, was eliminated? Alternative dispute resolution (ADR) is a less adversarial means of settling disputes that may or may not involve a court. Typical example are the efforts at court community collaboration which seeks to settle disputes by less adversarial means than traditional legal processes.
Many ADR programs function as alternatives to going to court. Others involve efforts to settle court cases after they have been filed but before they are tried by a judge. ADR efforts most often focus on civil matters but nonserious criminal matters may also be included. The best known of such effort is the speedy Trial Act of 1974 (amended in 1979), which specifies time standards for the two primary stages in the federal court process. Thirty days are allowed from arrest to indictment and seventy days from indictment to trial.
Certain time periods, such as those associated with hearings on pretrial motions and the mental competency of the defendant, are considered excludable time. Further, the speedy-trial statutes exist in all fifty states but they have a different orientation than their federal counterpart. Most state laws are defendant centered; that is, they are designed to protect defendants from suffering extensive delay, particularly if they are incarcerated prior to trial.
By contrast, the federal law is designed to protect the interests of society; that is, a speedy trial is viewed as an important objective irrespective of whether the defendants interests are in jeopardy. State speedy trial laws differ among states in many respects, such as what kinds of events count as excludable time, and they vary widely in the amount of time they allow for bringing a case to trial. Among the most restrictive states is California, which specifies fifteen days in felony cases from arrest to indictment and sixty days from indictment to trial.
Other states stipulate only that cases be processed with a€? no unnecessary or unreasonable delay. a€? Court backlog is a problem that affects many of the nationa€™s courts. The magnitude of the backlog and the length of the delay vary greatly, depending on the court involved. Plea bargaining on the other hand, can best be defined as the process through which a defendant pleads guilty to a criminal charge with the expectation of receiving some consideration from the state. Plea bargaining is hardly new.
In federal courts the massive number of liquor cases stemming from Prohibition led to the institutionalization of plea bargaining in the first third of this century but it was eliminated then there would now be a great court backlog and a big prison population would make the government much poorer since more budget will go to the correctional system. Oberdorfer (2003) uses discrepancies in mandatory sentences for crack and cocaine offenses to illustrate the impact of federal sentencing guidelines. How does he view the consequences of these guidelines?
What alternatives does he suggest? Oberdorfer (2003) viewed the consequences of federal sentencing guidelines as inflexible and seriously flawed, if not unconstitutional laws. He used the discrepancies in mandatory sentences for crack cocaine offenses to illustrate the negative impact of federal sentencing guidelines, that is: disparity among sentences imposed by different courts and even among different judges on the same court (p. 14). Hence, this discrepancy has a palpably discriminatory consequence.
Moreover, he considered the treatment of those who traffic in crack cocaine versus powder cocaine traffickers as the most serious vice in the federal Guidelines today (p. 16). Thus, he suggested several alternatives to fix the problem. The one he considered as the most positive antidote to the present situation would be the application of the Presidenta€™s constitutional power to a€? grant Reprieves and Pardonsa€? (p. 17) to non-violent defendants who have responded positively to in-prison drug treatment, who is reviewed and recommended for clemency by a Bureau of Prisons committee.
Secondly, he suggested especially for the future that the commission should make astute observations and produce real guidelines. Further, that judges should have discretion to depart from the prescribed guideline, after making findings and conclusions. Third, once a judge imposes a sentence, either side could appeal. Fourth and the greatest alternative should be that there should be a body of appellate sentencing precedents that constitute a common law of sentencing (p. 18).
- Oberdorfer, L. F. (2003). Mandatory sentencing: One judge's perspective. The American Criminal Law Review, 40(1), 11-18 http://www.hg.org/