Document Type

Article

Publication Date

2016

Abstract

In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in acknowledgment of the coercive effect of the threat of prosecution. This article is divided into three parts. Part I explores the feasibility and desirability of resolving crimes of violence outside of the criminal justice system. Part II examines two strands of restorative justice that undermine its ability to provide an alternative to criminal court-first, its therapeutic agenda and second, its claim that it functions separately from the criminal justice system. Part III lays out the elements of an alternative to restorative justice, a neutral form of mediation that could serve as a diversion from criminal court and as an alternative to restorative justice. By providing procedural protections, neutral mediation could offer both a meaningful form of dispute resolution and serve as a form of quasi-decriminalization for many criminal charges. Recommendations include the involvement of due process professionals in the design and implementation of criminal mediation programs to meet the goals of (1) reducing overall contact with the criminal courts and (2) providing procedural safeguards in acknowledgment of the coercive effect of the threat of prosecution. Part IV concludes with a discussion of potential objections to a system of mediation as an alternative to prosecution for instances of violent crime, including objections that might be brought by critics of informalism regarding both the rights of the accused and the safety and support of victims

Publication Citation

46 N.M. L. Rev. 123 (2016)

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