Is Felony Mediation The Cure?

From Court-O-Rama, finally a good sentencing idea out of Kentucky (who’da thunk?).  From a story on KYPost (no connection to the Jelly), Anne Skove posts about the use of mediation as a tool to keep people out of prison through the use of judges as mediators in felony prosecutions.

Senior judges trained in mediation techniques are mediating felony cases. Case types include burglary, drug trafficking, theft, assault, fleeing and evading law enforcement, and manufacturing meth. Both sides agree to participate; participation is voluntary.

Charges may be dismissed, guilty pleas may ensue. Defendants might pay restitution or participate in drug court. The judge in each case may accept or reject the agreement reached by the defendant and prosecutor. Any way you slice it, it means fewer cases in court and fewer defendants in jail.

Mediation, a tool that has long been used successfully in civil cases, doesn’t seem to lend itself to the resolution of criminal matters easily, yet was lauded as being hugely successful:

“The defendants loved it. People actually listened to them. They said that people would listen to them in court too, but it would be a jury that might sentence them to 50 years,” he said. “The Commonwealth loved it too. We very seldom leave court with people who are happy, but we did. It was phenomenal.”

While I haven’t always  been kind to Kentucky, particularly given some of the  bone-headed things they come up with there, this idea strikes me as remarkably good and timely.  Perhaps not appropriate for certain types of crimes, there are still a broad swathe of cases that would find their way onto the felony dockets and, to a very large extent, wind up filling more and more prison cells, this offers a real alternative to incarceration.


We have a process that works and we have mediators available,” said Paisley, who worked with Judge Wehr to coordinate the mediations in Clay and Boyd counties. “Now it’s just a matter of identifying the next areas to use this program, which likely will be jurisdictions with heavy caseloads and an overcrowded jail nearby. Overcrowded jails pass on significant costs to the counties and this is one tool to help reduce those costs.”

At a time when government, and to some lesser extent people, are recognizing the extreme cost of decades of lock-em-up politics and the lack of substantive benefit to sating the bloodlust for ever-increasingly long sentences, taking chances with new concepts that offer the potential to have a positive impact all around is critical.  Frankly, I think this idea sounds brilliant.

Kentucky deserves enormous credit for this new application of mediation.  I wonder if  Ken Lammers knows about this?

3 comments on “Is Felony Mediation The Cure?

  1. David

    Thanks for pointing this out. I’ve had a little luck over the years informally using something like mediation with my clients, and I think it’s helped. I argued a motion to suppress not long ago and had the feeling my “mediation” with the officer beforehand left him not caring whether he “won” or “lost” as I tried hard to show him it wasn’t about me vs. him, but about deciding whether he followed the fourth amendment. I wish I could claim to have cross examined him into saying the right things but the truth is he admitted to lacking p/c to enter the home independently of my questions.

    So I’m intrigued about how this could work and wish I knew more about this and restorative justice in general.

  2. Anne

    Thanks for the hype (again!)

    I’ve been watching for over a decade, and can say that Kentucky courts have done some very good things. Statewide drug courts (while other courts were trying to figure out where their programs were located around the state!), a good diversity initiative (still underway, I believe), an award-winning family court…the list goes on. They deserve credit.

  3. SHG

    To tell you the truth, Anne, I’m not a fan of drug courts or any of the specialty courts in general.  They are great ideas, provided you don’t mind starting  out guilty and giving up all pretense that maybe some defendants are innocent or their constiotutional rights are violated or any of that other fun stuff.  Kentucky did one interesting thing.  Let’s not get too crazy.  Next thing you know, you’ll be telling me it’s got the world’s best dental hygiene.

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