The Prosecutor's Role in Facilitating Criminal Alternative Dispute Resolution

In a typical criminal case, the State and the defendant are the principal stakeholders, while the victim has little say in the administration of justice. But an increasing number of criminal alternative dispute resolution (ADR) programs offer victims and offenders the opportunity to discuss the harm that transpired and decide how the offender will remedy that harm. Hundreds of these “criminal ADR” programs operate around the country, and many of them offer this reconciliatory opportunity as an alternative to State prosecution and sanctions, not just as a supplement to traditional adjudication. Criminal ADR offers many benefits: participating victims and offenders report satisfaction with the process, restitution agreements are reached and completed at high rates, and the voluntary, accessible nature of the dispute resolution increases access to justice. Criminal ADR also presents some risks, including the potential for unclear confidentiality protections for statements made in ADR, inadequately informed participation, arbitrary criteria for case diversion, and net-widening. Given the widespread use of these programs, and assuming there are some benefits to be realized, this Comment identifies areas for improvement in the operation of criminal ADR programs. It taps the local prosecutor as an agent well-positioned to implement these recommendations, and suggests that prosecutors who want to facilitate the successful operation of criminal ADR programs have a role to play in three major areas. First, prosecutors should seek legislative support for the creation and funding of criminal ADR programs and statutory confidentiality protections for criminal ADR in their jurisdiction. Second, prosecutors’ offices should develop internal guidelines and external agreements with partners to ensure the fair administration of programs. Areas of focus here include developing confidentiality agreements with participants, clear language for obtaining informed consent, and internally consistent eligibility criteria for ADR. Third, prosecutors should capitalize on ADR as an early diversionary tool where appropriate.