Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution

Abstract

English Abstract: This article focuses on a procedure that is nowadays the central door to criminal law in Israel - “Plea Bargains Facilitating Day” (“Moked”). It examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. Judicial conflict resolution (JCR) includes any activity by judges which aims to encourage an agreement between the parties to enable the closure of the legal case parties without the need of a full judicial procedure and the writing of reasoned judgment. In the criminal context, it includes judicial activity meant to influence the charges and the sentencing as stipulated within the plea agreement between the prosecution and the defense. To characterize the proceeding and gain an understanding of the judge’s role both in practice and in theory in this proceeding, we conducted quantitative and qualitative analyses on data collected from observations of 717 hearings in 704 criminal cases, in the Tel Aviv Magistrates Court on Moked days. Furthermore, we conducted a comparison of our findings with previous findings in the civil domain. The Moked days, as determined by law, are meant for the conduct of preliminary proceedings on indictments, with the aim of limiting the factual or legal dispute, in whole or in part. This is in order to obviate the need for the presentation of evidence and bring the matter to a conclusion during the preliminary proceeding. We found that the trial reduction goal was largely achieved, as less than 8% of the cases in the plea bargain hearings that we observed were transferred to the trial stage. The importance of this finding is the indication that the Moked days were not just the exclusive entryway to the criminal process, but in most cases also constituted the exit. We also found that on average, 5.55 (SD=3.62) hearings were required for disposing of a case and the average duration of a legal proceeding from indictment to closure was 548.55 (SD=323.17) days. Those figures are significantly higher than the figures from past years and may point out that the conduct of these proceedings did not necessarily achieve efficiency and simplification of the criminal process. We found that during the preliminary proceedings the judges function as gatekeepers and employ a variety of practices to exhaust that function, in order to obviate the need to conduct a further evidentiary proceeding in the case. In most of the hearings that we observed, the judges’ role was confined to managerial-bureaucratic decisions, mostly technical, intended to enable the parties to craft the terms of the plea bargain by themselves. Only in a small share of cases, the judges took an active role in promoting the plea bargain’s terms, mainly when the parties ran into difficulties agreeing by themselves. In a tiny fraction of the cases, their intervention was of a therapeutic nature or fulfilled some other social role. The judges’ interventionist activities to promote a plea bargain included promoting, both narrowly and broadly, litigotiation between the parties; forecasting the judicial outcome; negatively presenting the judicial process; using lawyer-client relations to promote agreement, using soft techniques, and enhancing the defendant’s motivation. These findings were compared to previous findings on the roles of judges in civil proceedings in the framework of the vanishing trial. Civil judges conduct a preliminary proceeding in only 30% of the cases, while 70% of the cases are closed without ever reaching the judge. Contrarily, in the criminal process, judges conduct all of the cases. We found that while civil judges were involved to a great extent in the cases they conducted, criminal judges were actively engaged in only 16.8% of the hearings we observed. In the remaining hearings, judges interventions were minimal, and their role confined to supervising the negotiations conducted outside the court. This article points to ways to close the gaps between the criminal and civil domains by promoting an active secretariat. Also discussed is the possibility of expanding a therapeutic and preventative approach in the framework of criminal judicial conflict resolution during the Moked days.