Mediate Criminal Cases?

On March 19, 2010, the revered Emmet Bondurant addressed the Litigation Section of the Atlanta Bar Association. During his presentation, he made an appeal to attendees to do pro bono work, but with a caveat: do not do indigent criminal defense work on a pro bono basis that otherwise should be done by the State (and at the urging of Sonny Perdue who claims that the State cannot afford to pay for the defense of the indigent). This call to aid those in need, but not everyone in need, does have its logic.

Mr. Bondurant’s call to serve, but with a caveat, is in line with other esteemed minds in the legal community. Not long ago, for example, Leah Sears indicated that certain budget cuts to courts could be unconstitutional. So too, Mr. Bondurant’s rally not to do indigent defense work on a pro bono basis also has a constitutional basis. Mr. Bondurant explained that to do this work pro bono would, in effect, relieve the State of its constitutional obligation to defend the indigent and enable it to avoid its constitutional responsibilities when budgets are tight. Thus, to borrow from psychology, to defend the indigent at the Governor’s behest enables unconstitutional behavior.

In such a stand-off, unfortunately, it is the poor that have the most to lose.

Might there be another alternative that both sides could support? It could be greater mediation of criminal matters. The American Bar Association has proposed such measures and assisted with the implementation of such mediation programs in other states. Could it work in Georgia, too? Would mediation assist the State in meeting its constitutional obligations while making its budget? Perhaps.

Jack Hanna, a mediator and member of the American Bar Association, has written about the ABA’s involvement in mediation of criminal matters and the success of such programs in Minnesota, among other jurisdictions. Mr. Hanna’s article on ADR in the criminal arena, “Mediation Works In Criminal Matters,” can be found by clicking here. Maybe it is time for Georgia to check out its alternatives.

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