March 28, 2013

Who will pay? Restorative Justice in Texas

By Cynthia Alkon

The Texas state legislature meets every other year for a five month term of frenzied law-making. This spring we are in the midst of one of these legislative sessions.  I recently learned of a proposed bill that involves restorative justice, which has some interesting pieces to it.  This bill, S.B. 1237 , expressly authorizes the state to refer criminal cases to an “alternative dispute resolution system” if one already exists in the county.  This can happen “regardless of whether the
defendant in the criminal case has been formally charged.” However, “the state must obtain the consent of the victim to the referral.”

Apparently the contentious issue in this bill is how it will be funded as it authorizes the “entity that provides services for the resolution of criminal disputes under this chapter” to “collect a reasonable fee set by the commissioners court from a person who received the services, not to exceed $350.”  The bill states this fee cannot be collected from the victim.

My sources tell me that ordering the offender to pay is the issue that may keep this bill from becoming a law due to concern that defendants will be forced to pay for these services, even if they have not been charged or convicted of a crime.   I find it interesting that the substance of the bill–whether to use restorative justice in criminal cases–is not the sticking point and the use of restorative justice seems to be accepted as a good idea.

Despite this apparent acceptance in Austin, Texas does not frequently use restorative justice processes such as conferencing or victim offender mediation to resolve criminal cases pre-conviction.  The exception seems to be in juvenile cases, which is not unusual in the USA.  The heavier use of restorative justice in Texas seems to be post-conviction which this bill, as I read it, would not affect.

It seems unlikely that this bill will pass but the fact that it was seriously discussed and made it out of committee indicates to me that Texas, like other states in this country, is continuing to look at ways to reform their criminal justice system and moving beyond simplistic  “lock ‘em up” policies and proposals.  Texas is already an active user of problem solving courts, such as drug courts and mental health courts.  Reports indicate that the increased use of these alternative processes may be one reason why Texas recently reduced its incarceration rate for the first time in decades.  See here.  For example, Texas is one of a handful of states in this country that requires drug courts in any county with a population of more than 200,000.  This bill is an indication that even restorative justice may become more common in Texas.  Maybe.

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  • Matt Fronda says:

    I think that this bill, despite its funding issues, it is a good idea. Texas criminal courts have been looking to reform the process and to try new processes for some time (the most recent example being the expansion of “Safe-P Re-entry”). The ADR process could provide a great avenue for disposing of criminal cases because the interest-based process could do a number of positive things. First, it could expose some of the underlying social structures and problems that lead to crimes, which would help legislators act to reduce crime. And second, it could balance society’s interests with the defendant’s interest to craft new solutions. This is particularly interesting in the midst of the “Rehabilitation vs. Deterrence” debate surrounding or criminal punishment system.

  • Lawyer Jim says:

    In the end, it will save time and money, so it is a good idea.

  • Krysten Harris says:

    Very interesting article. Immediately my concern went to how this would affect the defendants. I think it would be fair to say that there is often inequality in bargaining power for criminal defendants against the state. However using the ADR service, in particular a mediation based service, could prove to be very beneficial in eliminating that disparity. It will be interesting to see if the finance issue will be resolved so defendants can begin to receive this service.

  • Sheena Winkfield says:

    I think this bill is a good idea and a good starting place for the Texas legislature to improve the criminal justice system. The main issue I see is the requirement of a defendant to pay for a ADR procedure without receiving thier full due process. If the law was changed to allow an ADR procedure after a grand jury proceeding or conviction I believe it will be a cost-effective way to handle misdeamnor charges. However I am concerned about the power imbalance created between victims and criminals and would not want to see mediation mandatory the way it is in family court proceedings. In the worst case scenario I would not want to see a judge mandating a mediation session for someone who is the victim of a violent crime.

  • Chris Brown says:

    If the contentious issue in the bill was ordering the offender to pay for the ADR services, someone forgot to tell the Texas Senate. On April 11th, the Senate passed this bill by a unanimous 31-0 vote. It is now sitting in the House Committee of Judiciary and Civil Jurisprudence.
    I think this bill could prove to be an important step in the right direction to bring greater restorative justice to the Texas legal system. It will be very interesting to see if the Texas House of Representatives take up this bill and if so, whether the Governor will sign it into law. There are only six weeks left in the legislative session, so the clock is ticking.

  • Britney Tomberlin says:

    Thanks for the update on this Chris. I actually find this idea a little troubling. I know our criminal justice system is overwhelmed and overworked but if you think about it over 95% of criminal cases are already decided using an alternative dispute resolution by being negotiated down to a plea agreement. I find the idea interesting in a post-conviction concept designed more to give a victim a chance at getting some closure or in a juvenile concept to help keep young offenders from being forced into the system without first being giving a second chance. In these kinds of situations, when the facts and circumstances call for it, I think something like mediation can be a good way to help a victim to heal or help a young man or woman see firsthand the effects of their actions. However, giving the state the ability to refer the case, even though the bill requires the state to get the consent of both the defendant and the victim, just makes me uneasy. There are cases where I would be very concerned that a victim may agree to meet but in reality is nowhere near a place he/she needs to be in to mediate. Alternatively, in the reversal, if a defendant (or soon to be defendant) is not represented by counsel I don’t know how voluntary their consent really would be. Especially if they believed a charge or a conviction would likely be the consequence if they did not consent to the alternative dispute resolution system.

    No matter how smart or empathetic a prosecutor may be there are things the prosecutor just cannot know. I’m afraid of some unforeseen consequences and possible dangers that may come about using alternative dispute resolutions like mediation. I find it hard to think there would ever be a situation in these kinds of cases where there would not be a power imbalance – either because the defendant puts the victim in fear, or because the defendant is having to either be restrained or guarded by officers during the process. While this is likely a good idea in theory, within the criminal system we are not just talking about money, but defendants’ liberties and possibly the serious wounds of a victim. At the very least I would like to see some major initial restrictions on the kinds of cases that would be eligible for the alternative dispute resolution system and some kind of requirement that a defendant must at least be advised to seek counsel.

  • Using alternative dispute resolution methods to resolve criminal cases is an interesting concept. S.B. 1237 is especially interesting in that it requires the consent of the victim in order for the case to be referred to an alternative dispute resolution system. Consent by the victim should be a high priority when determining whether or not a criminal case is referred to ADR or not. The victims in these cases have personally been affected the most by the defendant’s actions; therefore, the victim’s opinion as to whether the case is referred to ADR should carry a lot of weight, which is a concern the traditional jury trial at times could be seen as to not fully address.

    However, requiring the defendant to pay for ADR possibly before he or she has been charged or convicted seems to violate due process. Essentially, the defendant is being forced to pay a fine without ever being formally charged. It will be interesting to see if and how these issues are addressed as session continues. Also, funding issues could pose a problem given the current economic situation; but alternative dispute resolution has proven to be financially and time efficient for resolving disputes in family and civil matters . Restorative justice may be the next step as ADR processes become more and more common around the country for various types of disputes. If passed this could be a good statute for a state with one of the largest prison populations in the nation.

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