Judge-facilitated felony plea bargains in New Hampshire, known as felony settlement conferences, provide the opportunity for the prosecution and defense to better understand each other and to tap into the judge’s expertise. This, in turn leads attorneys to believe that these conferences increase procedural justice. This is the conclusion Rebecca Sigman draws from her 15 interviews with attorneys and judges who have experience with felony settlement conferences.
Sigman discusses the program and her findings in her article, “Learning to Listen: An Evaluation of New Hampshire’s Felony Settlement Conference” (Ohio State Journal of Dispute Resolution, 2019). A case is appropriate for the program if the defendant has admitted wrongdoing, but the defendant and/or victim have struggled to reach resolution, and if someone other than the defendant and the state is involved.
Settlement conferences are facilitated by either retired judges or active judges who are not presiding over the case. Five days before the settlement conference, both sides must submit a memorandum that outlines each side’s case and evidence, aggravating factors of the crime, what offers have been made by both sides, and any relevant history on the victim and defendant. Generally, the settlement conference begins with the judge meeting privately with the prosecutor and defense attorney. At this time, they review the settlement conference memorandum and they discuss the details of the case, such as why negotiations have failed and whether a victim is involved.
The settlement conference begins with a joint session at which each side presents its opening statement the defendant and victim (if present) make statements. Others, such as family members or police officers, may speak as well. The judge then separates the parties and begins shuttle negotiations. If the two sides reach agreement and the judge is not retired, they may offer to take the plea right then and there. If not, they submit it to the judge presiding over the case.
For her study, Sigman interviewed two prosecutors, one victim-witness advocate, six defense attorneys and six participating judges. Due to confidentiality issues, she was unable to interview defendants or victims. Her interviews focused on procedural justice, namely the quality of decision-making and the quality of treatment. In terms of the quality of decision-making, attorneys said that the judges’ experience and judicial legitimacy increased the perceived fairness of the process. Judges reported that defendants and victims felt the judges were neutral and thus respected their opinion. On the other hand, attorneys and judges alike were concerned about possible coercion by settlement judges to get the sides to accept a plea bargain.
The quality of decision-making is also affected by the quality of communication between the two sides. Interviewed attorneys said that the settlement conferences provided a forum for robust discussion and better understanding of the other side’s reasoning. They also appreciated the streamlined negotiation process caused by their ability to discuss plea bargain in a single meeting, rather than at scattered, infrequent times. Less formally, the attorneys noted that the non-adversarial nature of the conferences promoted active listening and empathy.
Defendant and victim voice is an important contributor to the quality of decision-making. Those interviewed indicated that voice is enhanced in settlement conferences. Victim voice is enhanced by incorporating the victim’s views into the resolution process and by giving victims the opportunity to explain the impact of the crime on them. Even if the victim doesn’t attend the conference, the prosecutor is in contact with them throughout the process. The defendant’s voice is enhanced by being able to bring up mitigating factors, express emotions and be heard by the judge.
The quality of treatment is the second procedural justice factor Sigman explored with interview participants. They spoke of quality of treatment in terms of two themes: the treatment of participants and the steps taken to mitigate power differentials between them. One important factor in the quality of participant treatment is the breadth of confidentiality measures governing settlement conferences. These measures are similar to those for mediation – statements made in the settlement conference shall not be divulged to anyone outside the conference, and they shall not be admissible at any other proceeding. In addition to confidentiality, quality of treatment is enhanced by the dignity and respect with which all participants are treated.
It is generally agreed that prosecutors have more power than defendants and their attorneys. This gaping power differential, according to scholars, significantly hinders perceptions of procedural justice in the plea bargaining system. Interview participants said that settlement conferences may mitigate this power differential by providing confidentiality protections and by the use of an authoritative judge as neutral, which serves as a check on prosecutor power. Having a neutral facilitator as well as significant time allotted for negotiations also reduces the possibility that prosecutors will resort to high-pressure tactics.
Although Sigman’s study didn’t include the voice of victims and defendants, her interviews with attorneys and judges indicate that felony settlement conferences may be perceived as more procedurally just than the normal plea bargain process. I would love to hear from the victims and defendants themselves to find out if they have the same perceptions – particularly defendants who have experienced both processes.