Criminal prosecution is rampant within the United States.1 Politicians, legal scholars, and activists have cried for reform or abolition.2 Some of those cries have resulted in the implementation of diversion programs to avoid incarceration.3 But these programs fail to correct the overbearing and disruptive nature of traditional prosecution. When day-to-day disputes include criminal activities, policymakers identify such activities as criminal victimizations, with at least one disputant named an offender and another named a victim.4 Each year, such disputes number in the millions.5 But prosecution of offenders makes resolution of these original disputes far less feasible. Instead, a state-created criminal dispute revokes access to original disputes. It forces the parties into a new process with potential resolutions far removed from the particularities of the original incident.
Relying upon alternative dispute resolution scholarship and criminal legal theory, this Note pursues abolition by interrogating the theory and practice of prosecution. While short of arguing for outright decriminalization, this Note provides some theoretical groundwork for policymakers to tap into an array of decarceral options. It does so by first demonstrating that prosecution disrupts an original dispute. In place of resolving an original dispute, prosecution creates and attempts to resolve an artificial dispute.
The imagery of a displacing dispute pushing aside an original dispute reflects what occurs in courtrooms and at prosecutors’ desks every day in the United States. While many of these new criminal disputes might appear to reach resolution at the end of a trial or the acceptance of a plea, many original disputes throughout criminal law remain unresolved.6 States may proclaim that justice has been served by the outcome of a dispute that the prosecutorial system alone has created. But those robbed are often not repaid, and their violations are not corrected. People who have suffered harm remain without individually tailored responses to their damage or grief. And the battered are left with injury that the criminal legal system has not healed.
This Note supports the use of dispute resolution methods such as restorative justice circles, victim-offender mediation, and private negotiations for restitution. But it does not prescribe these processes for specific crimes. Implementation of such processes would require an analysis of targeted crimes as specific communities experience them,7 an account of scholarship concerning the limitations of alternative dispute resolution when mandated by the state,8 and a design informed by community members.9
Instead of such an endeavor, this Note demonstrates that, although an original dispute is often the crux of a criminal trial and the substance upon which criminal pretrial negotiations are poised, prosecution does not resolve it. Finding that the prosecutorial framework is generally unsatisfying, this Note then argues for a framework of “primary dispute resolution.” Primary dispute resolution incorporates alternative dispute resolution techniques but attends to the original dispute and acts as the primary method of response to crime. The nature of the relationship between traditional prosecution and original disputes warrants such a reevaluation of the primacy of traditional methods to adjudicate crime. And demotion of the traditional criminal process beneath processes more closely tailored to the resolution of an original dispute benefits the disputants and their respective communities.
Part I identifies the mechanics of dispute displacement and the theoretical frameworks that justify it. Part II shows the current persistence of displacement even alongside tort systems and the use of diversion programs. Part III establishes that dispute displacement is harmful for parties involved in or affected by original disputes. And Part IV demon-strates that primary dispute resolution is appropriate and offers two basic templates for it.
I. Identifying Dispute Displacement in Criminal Law
Policymakers have long adjudicated crime through a coerced dispute resolution process between the state and an offender, also known as prosecution.10 The denomination of this process, often “State v. Defendant,” illuminates its priority. That priority is the resolution of a dispute11 between a government institution and an offender subject to that institution’s coercion.
Prosecution acts as a domination-form12 system of resolution that displaces original disputes. The mechanics of prosecution — the assumptions that undergird it, the statutes that actualize it, and the agency relationships that facilitate it — all confirm its role as a dispute resolution system displacing an original dispute. The theories of punishment that justify prosecution illustrate the distinction between original disputes and displacing disputes.
A. Mechanics of Dispute Displacement in Criminal Law
1. Displacing Original Victims. — Prosecution displaces original disputes and their potential resolution through two consecutive assumptions. First, the state assumes that the harm that the original dispute created is harm to the community, not only to a victim.13 This assumption arises less from the recognition of harm to the community than from the mere fact that behavior within the dispute was illegal. Second, the state assumes a position both as the representative for the community and as the community itself.14 Through these steps, the state “activate[s]” the “conflict”15 so that it may appropriately apply its domination-form resolution system. Generally, these assumptions are inappropriate.
Although the state asserts that it properly represents the community, the community does not practically participate through state actors.16 It is possible that the harm within an original dispute injures an entire community, but an assumption that criminalization of an activity accurately indicates that it always inflicts community harm is ungrounded.17 And even when there is harm to the community warranting the community’s participation, the greater poignancy of the victim’s harm makes resolution of the victim’s dispute more important.
If the saliency of community harm is greater than that of harm to a victim, then displacement may be appropriate. Such crimes might include mass murder, threats to political leaders or institutions, or public corruption, to name a few. But most crimes create narrowly targeted harms: crimes such as trespass, larceny, assault, battery, or domestic abuse.18 Such crimes often create harm experienced by one or a few people and largely unnoticed by other community members.
2. Displacing Original Incidents. — The state that has drawn these assumptions effectively uses criminal statutes to create a displacing dispute, establishing itself as the new victim regardless of harm.19 Statutory prohibitions authorize the state to align the new disputants against each other and attempt to resolve the dispute through the prosecutorial process.20 Although adjudicators couch the substance of this new dispute in witness descriptions and evidence regarding an original incident, the dispute’s substance is not really about the incident. Prosecution provides a forum for a battle of narratives regarding the similarities of the incident and the statutory elements of criminalized behavior.21 But it does so only to administer punishment to the offender. As a result, the offender, not the original substantive dispute, is the center of the traditional criminal process.22
3. Displacing Original Interests. — Issues of agency create further displacement and confirm prosecution’s role as a new dispute. Agents, including public defenders, criminal defense attorneys, prosecutors, judges, and jurors, make the communications and assertions to resolve the dispute. But interests of principals and agents may not align.23 And an agent’s repetitive role in courts may weaken the adequacy of their representation.24
The prevalence of plea bargaining effectuates both displacement of original disputes and manifestation of new disputes. Because most criminal cases evade trial by reaching conclusion through a bargained guilty plea,25 agents effectively engulf original disputes. Ignoring issues that might remain between victims and offenders, agents negotiate new interests and options. For example, prosecutors seek to lower caseloads by avoiding trial,26 and the offenders’ counsel seek both low sentences and goodwill with prosecutors.27 All these mechanics of prosecution reveal it as a displacing dispute pushing aside an original dispute.
B. Theories of Punishment and the Supplanting Nature of Prosecution
Theories of punishment that validate prosecution establish its role as a displacing tool. Four theories commonly justify traditional prosecution: retributivism, deterrence, incapacitation, and rehabilitation.28 Despite the complexity of each theory,29 a cursory analysis demonstrates how they cause traditional prosecution to pursue goals unrelated to an original dispute. Adherence to these theories validates displacement and ultimately undermines resolution of original disputes captured within a criminal legal system.
1. Retributivism. — Under retributivism, prosecution is the process by which punishment is duly provided for an action that has created harm to society.30 Retributivism justifies punishment by the measurement of an offender’s moral culpability.31 Taking such an approach, a society that suffers some harm will repay it with new harm.32
Retributivism causes the prosecutorial system to displace the original dispute by exchanging the previous harm and original victim for a new harm — punishment — delivered by a new disputant — the state. It dispenses this repayment against the offender through an artificially created second dispute. Although the first harm is the reason that the new harm is applied, the first harm does not receive resolution but only response — and response by the state as an institutional third party. Retributivism may underpin the state’s reasoning for displacing an original dispute, but it also explains why a victim would allow the state to displace their dispute. The retributivist desires that an initial harming person gets their just deserts.33 And a victim who concludes that state-administered punishment is the just desert of their opposing disputant will likely welcome any process that gives the state this task.
2. Deterrence and Incapacitation. — Under deterrence theory, lawmakers attempt to hinder future crimes by applying punishments at magnitudes high enough to discourage other community members from engaging in those prohibited activities.34 Similarly, incapacitation encourages the prevention of future harms at the cost of addressing present ones. It hinders an offender from creating future harm by physical confinement or state monitoring.35
Deterrence and incapacitation cause displacement by inserting a societal goal into a situation that most often should concern only two disputants. Restricting people from prohibited activity may prevent future harm.36 But it does not provide correction or healing for the present harm perpetrated between the disputants. Rather than orienting the criminal legal response around present issues, deterrence and incapacitation are entirely anticipatory.
3. Rehabilitation. — By rehabilitation, society treats individuals so that they either avoid committing such crimes again or live upon release in a manner that society deems contributory and successful.37 A future-oriented goal,38 rehabilitation leads to displacement by distracting from the present dispute and focusing a criminal legal response upon the offender.39 While rehabilitation arguably may provide healing for the offender, it does not provide appropriate healing for the victim.
Each of these objectives adds to an understanding that prosecution is a criminal dispute superseding an original dispute. Policymakers make the new dispute publicly accessible to deter future crime.40 They apply an unbalanced legal framework and limited options to realize goals of incapacitating, rehabilitating, and giving retribution. Such results may arguably be in the state’s interest, but they are not directly related to the original disputants’ interests, which might include restoration of their relationship or apology for inflicted harm.
II. Persistence of Dispute Displacementin Criminal Law
Current systems that might respond to displacement fail to address original disputes adequately. Tort litigation provides an opportunity for disputants to attend to their dispute but fails to do so effectively on several accounts. Diversion programs sometimes aim to resolve original disputes, but their entanglement with prosecution hinders their ability to achieve resolution.
A. Tort Law’s Inefficacy in Capturing Disputes Displaced by Prosecution
The availability of tort remedies does not excuse criminal law’s displacement. Indeed, if tort law effectively resolved original disputes, prosecution’s displacing nature might be acceptable, but to do so, the tort system would need to cover the same behavior as criminal law and violations in tort statutes would need to mirror those in criminal statutes. If so, even displaced disputants could successfully rely on tort remedy. But tort law does not consistently capture disputes that include criminalized behavior. Even if it did, tort claims still suffer from inaccessibility.
While tort law is better at responding to original disputes than criminal law, it is not always available. Both systems mandate that individuals bear the burden of some harm41 and are designed to counteract nonpreferred behavior.42 But criminal law uses punitive consequences to prohibit behavior, and tort law uses monetary damages to price behavior.43 While criminal law displaces the original dispute, tort law retains the dispute and channels it through a judicial process. Some disputes may result in criminal prosecution, others in civil tort litigation, and many in both. Crimes such as negligent endangerment, misrepresentations, and many “victimless” crimes that veil reporting disputants may displace original disputes without an available tort claim.44 Instead of welcoming encroachment by tort law to capture these claims, criminal law has encroached on tort law.45 Today, criminal prohibitions cover not only traditional torts but also activities not captured by tort remedy.46
Inaccessibility further weakens the tort system’s ability to address original disputes. Even when lawmakers use the same language to authorize criminal prosecution as they use to authorize civil remedies,47 difficulties in using the system arise from its reliance on monetary compensation from the wrongdoer. Victims may struggle to pay high legal costs and court fees.48 Deduction of those costs from final judgments and settlements49 discourages potential claimants. And victims may settle for less than full compensation because of their circumstances.50
B. Diversion Programs’ Failure to Prevent Dispute Displacement
Diversion programs are schemes that aim to bypass aspects of prosecution but still result in dispute displacement where used. Programs vary widely.51 Some are merely nonincarceration solutions such as drug rehab programs or state supervision, and others are resolution processes that relate to an original dispute, such as community-based problem-solving panels or restitution agreements.52 While the former kind of diversion program resembles only a nonprosecution agreement, the latter appears to provide a process of resolution to an original dispute. But even while targeting underlying problems of crime,53 such diversion programs serve prosecution’s displacing aims in practice. Both the inequality of access and the coercion usually inherent in diversion schemes reflect displacement’s tenacity.
Selective implementation of diversion programs restrains them so that the state, rather than original disputants, exercises ultimate control over access to the programs. Local prosecutors, judges, or police refer individuals to programs.54 Of these, local prosecutors generally have the most discretion.55 And they are rarely subject to any judicial oversight in their decision to divert.56 Prosecutors might discriminatorily label some individuals as too “deviant” for a place in a program.57 Even with evidence-based guidance to select program participants, prosecutors might engage in a kind of “moral sorting” so that they categorically shut out potential candidates.58 Additionally, exorbitant fees attached to the programs deter poorer candidates.59 These issues arise because displacement has already foreclosed immediate resolution of original disputes so that the state must selectively grant access to those disputes again.
Because prosecutors offer the programs, they effectively coerce alleged offenders into implicit or explicit guilty pleas. By threatening completed prosecution, prosecutors shuttle offenders into programs within which offenders may worry that a confession or incriminating evidence revealed throughout program participation might indicate guilt in later adversarial proceedings.60 Even without such evidence, mere participation in a diversion program may create an implicit assumption of guilt.61 Some jurisdictions require a guilty plea before allowing an offender to participate in a diversion program, while others require an acknowledgment of responsibility for the offense.62 And participants that fail a program may find themselves with a more severe punishment at the hands of the very same prosecutors who offered them mercy.63 Such requirements reveal that diversion programs may better facilitate prosecution than actual resolution of an original dispute.
Both punitive coercion and selective implementation infect any process used alongside prosecution. Unequal access arises in part from prosecutorial participation. Coercion arises because of prosecutorial compulsion. And as a result, diversion programs intended to avoid dispute displacement continue to exhibit the influence of the overpowering prosecutorial dispute.
III. Harms of Dispute Displacement
Criminal law’s displacement of original disputes can leave participants within that system unsatisfied. The interests of victims likely suffer the most acute oversight within prosecution because their participation is often extraneous at best. But dispute displacement also creates negative effects for offenders. And displacement’s failure to effectively involve community interests also harms third parties.
A. Limitations on Victim Participation in Criminal Law
Over time, the displacement of original disputes has included a displacement of victims. Legal systems that predated modern Western law viewed a crime as an offense against a victim and a victim’s family, with implications for the community.64 Systems required offenders and their families to settle accounts with victims and their families.65 What mattered in these conflicts was the actual harm inflicted, rather than any abstract legal, social, or moral violation.66 Many victims brought action in courts for criminal acts that they suffered,67 resulting in unique solutions.68 Around the twelfth century, this practice began to change.69 But remnants of this early evolution of criminal law remained. Private prosecution70 was common enough that public prosecution was the exception rather than the norm in the seventeenth and eighteenth centuries.71 In fact, private prosecution in some forms can still be discovered today.72 But it had mostly dissipated by the end of the nineteenth cent-ury as local prosecutors gained sole discretion for the hearing of criminal complaints.73
Criminal legal processes today push victims to more tangential roles. For example, victims participate in public prosecution not as moving parties, but as witnesses.74 They may give impact statements that sometimes influence the severity of sentencing.75 But instead of addressing the specific concerns of victims,76 courts limit victim participation to helping the state to punish and seeking compensation in a separate tort law system. Thus, prosecution sidelines victims so that the few remaining displays of victim participation constitute resistance to its disruption.
Prosecutors’ outsized influence within displacing disputes also eclipses the few remaining avenues for victim participation. Prosecutors remove victims from the criminal legal process in several ways.77 They have power to determine the crimes with which they should charge an offender by selecting from a criminal code filled with charging options by a legislature.78 Victims may provide their narratives to prosecutors, and prosecutors often use those details as evidence against the offenders.79 But prosecutors control how victims’ narratives might be weaponized.80 Nowhere is the prosecutor’s power more focused than during the plea bargaining process. Prosecutors may conduct plea negotiations completely outside of the influence or awareness of victims.81 Yet plea negotiations determine the outcome of around ninety-five percent of criminal cases.82 By circumventing a trial, plea negotiations easily circumvent even the elements of participation still available.
Because victims participate so minimally, prosecutions rarely redress victims’ harms83 but do magnify them. Many victims have resented the options available in the criminal legal system and do not expect authorities to be responsive to their needs.84 Within the prosecutorial process, scholars have shown that victims who are denied participation may suffer increased psychological harm.85 These effects of displacement relate not only to restrictions on victims but also to restraints on offenders’ abilities to respond as opposing disputants.
B. Denial of Offenders’ Opportunity to Correct Harm
Dispute displacement harms offenders by removing the opportunity for them to directly seek resolution alongside opposing disputants. Prosecution tends to hide both the original dispute and the other disputes that arose before it, failing to consider that the community or victim may have previously harmed the offender.86 Social, moral, and personal factors relevant to the offender are only meaningfully included in the prosecutorial process if they are legally relevant.87 As a result, traditional prosecution overlooks the offender’s full narrative.
Additionally, displacement allows punishment’s negative effects to proliferate in the lives of offenders and related parties when the harm of the original dispute might have abated through the dispute’s resolution.88 Punishment of an offender and its collateral consequences are less necessary when disputants resolve original disputes. Although punishment theorists find it appropriate to exercise retribution or create harm as a deterring force,89 these reasons are less convincing when the original dispute becomes resolved.90 But if the original dispute is displaced, then giving just deserts and creating an example of the offender become more logical solutions.
C. Revocation of Practical Community Access to Disputes
Dispute displacement effectively revokes community access to disputes in which they may have some interest. Community members may still vote for their district attorney and participate by representation through the prosecutor.91 But some prosecutors are appointed rather than elected,92 and even elected prosecutors are rarely challenged or assessed on a values basis by the community.93 Community members may watch a public criminal trial or they may participate on a jury. But most cases completely circumvent the trial stage when the state reaches a plea agreement with the offender.94 So the traditional process generally does not provide community members a meaningful role.
Without such a role, community members lose the opportunity to adjust customs, policies, practices, and distribution of resources accordingly to make disputes less likely. These are adjustments that could occur among disputants’ close relationships or at neighborhood or municipality levels. Community participation in crafting sanctions also better serves the community’s interest in lowering crime.95 But when prosecution displaces an original dispute, community members are no longer procedurally poised or substantively connected to use any of their resources to resolve underlying issues or craft sanctions.
III. Primary Dispute Resolution to Avoid Displacement
Primary dispute resolution — that is, preferring resolution of the original dispute over resolution of a state’s displacing dispute — may be a better response to criminal behavior. Policymakers that implement primary dispute resolution processes would find them helpful for in-volved parties. They would discover an effective way to respond to criminalized behavior. And although they would encounter concerns, these would be surmountable. Two specific ways that policymakers could implement primary dispute resolution are by engaging processes before prosecution or by replacing prosecution with those processes altogether.
A. Benefits of Avoiding Displacement to Attend to Original Disputes
Victims, offenders, communities, and the administration of criminal legal response benefit from a criminal legal system that gives original disputes primacy over displacing disputes. While prosecution disempowers victims, resolution of original disputes keeps victims’ interests at the forefront. It better addresses the interests and needs of the offender as well as both the community’s culpability in the harm and the community’s responsibility to contribute to resolution. Such processes more readily allow the input and participation of community members. Avoiding displacement diminishes problems associated with diversion programs. And policymakers can implement processes in a variety of ways that attend to underlying circumstances.
While prosecution restricts victims, processes that aim to resolve original disputes retain victims’ participation and power. They demand victims’ inclusion not only for the poignance of their narrative but also for properly appropriating reparatory action.96 The narrative of the victim centers in and permeates throughout an appropriate dispute resolution process.97 And the likelihood that victims’ narratives would reveal their interests in dispute resolution increases the chance that the final resolution would directly provide them “reassurance, reparation, vindication, empowerment, . . . [and] meaning.”98 Victims may already be in vulnerable and disadvantaged positions.99 Whereas the traditional legal process victimizes an individual a second time by removing their power, a process that incorporates their input toward the resolution of their own harm empowers them.100
Processes that address the original dispute draw attention to the social history and environmental risk factors that led to it.101 Lifting the veil on these factors provides an opportunity to alleviate them while also allowing communities more easily to recognize both complicity in sustaining an environment that would tolerate such factors and opportunity to appropriately respond to them alongside disputants. Within such processes, questions arise such as: who has been harmed, what are their needs, and who carries the obligations to meet those needs.102 Answering these questions increases the community’s capacity to both recognize and attend to the underlying implications.103
Another benefit is that resolution processes may afford the community more participation and power. In circumstances where a dispute substantially harms a community, significant community participation might be appropriate. Some dispute resolution processes aim to focus energy toward community building.104 The community may take a direct and active role in open discussion with the disputants to bring about their holistic integration and achieve consensus on an appropriate outcome.105 For example, an offense committed in a classroom could lead to a restorative justice circle in which disputants and community members share their narratives, harms, and hopes for resolution.106
By withholding displacement, policymakers can avoid the negative implications at hand in diversion programs that empower prosecutors. For instance, to avoid discriminatory selection, policymakers could automatically implement a process devoid of displacement for individuals accused of selected crimes. And although coercion is inherent in any criminal legal process that forces accountability and different future behavior,107 policymakers could substantially diminish punitive coercion in chosen dispute resolution processes by separating prosecutors or threats of punishment from processes.108
Last, by avoiding displacement, policymakers can discover a spectrum of available dispute resolution processes.109 Communities have taken numerous paths toward resolution, and today, alternative dispute resolution processes abound in form and name.110 For example, victim-offender mediation is more private in design,111 but some processes are distinctly public.112 Some, like restorative justice, benefit from the disputants’ membership in an insular community. Process design and selection may reflect disputants’ prior relationship, lack thereof, or interest in participation.113 While prosecution narrowly pushes disputants into a one-size-fits-all system, shedding displacement and attending to original disputes is more customized.
B. Concerns of Primary Dispute Resolution
Despite the benefits of giving primacy to original disputes, some concerns inform the implementation of any dispute resolution process. This Note would be remiss not to mention these concerns. Attending to an original dispute might result in a privatized process, despite it having public dimensions and provoking community interest. The use of private processes and semipublic processes might diminish the normative role of criminal law. And communities may hesitate at replacing a traditional process that boasts uniformity and appeals to society’s general desire for fairness.
1. Privatization. — Although policymakers may have concern over processes such as mediation114 that are private in nature, they may appropriately select a process with community participation that reflects the magnitude of community harm. If policymakers use only private methods, community harm might receive an unsatisfying response.115 While the parties would gain an opportunity to resolve their dispute, the community might not receive a remedy to its harm.116 This concern arises from the assumption that criminal acts create enough community harm to justify public prosecution. And such an assumption is overbroad and ungrounded.117 But various crimes may still cause different amounts of actual community harm. Many crimes, such as assault and battery, cause indirect harm to witnesses, family members, friends, and neighbors’ senses of security. Other offenses indeed create significant harm to the public. Although avoiding displacement to focus on original disputes may privatize responses to criminal harms, many crimes do not have communal impact salient enough to render them irreparable by processes that are private or semipublic.
Policymakers may therefore ensure their responses are appropriate based on the nature of community harm from a particular crime. For crimes that create community harm to ascertainable community members, policymakers may use processes such as restorative justice that involve the participation of those community members. Such processes invite them to join in discussion of harm, formulate plans for reparation, and directly receive penitent communications or commitment to obligations from offenders.118 But for crimes creating significant harm to the general community, policymakers may appropriately consider applying traditional prosecution.
2. The Normative Role of Criminal Law. — The concern that communities implementing primary dispute resolution will lose the benefits of a norm-producing process119 is related to the state’s interest in general deterrence, but the flexibility of a primary dispute resolution framework assuages both issues. The state has both an interest in creating norms so that community members do not consider committing crimes and an interest in offering threats so that community members who do consider crimes decide not to commit them. Both fall under the umbrella of general deterrence.120 Although many crimes do not result in readily tangible community harm, some argue that any violation of the interest of general deterrence is a harm to which prosecution justifiably responds on behalf of the public.121 This Note questions the occurrence of such broadly defined harm,122 but, even so, scholars debate the efficacy of punishment in achieving general deterrence.123 Still, one cannot absolutely deny the state’s interest in deterrence.
Policymakers may indeed assess specific crimes according to their need for general deterrence. Communicating societal norms and threats is very important for some crimes. But for others, society’s norms are already self-evident, and preventing future crime depends on adjusting the offender’s perspective on those norms.124 Frequency of crime, gravity of harm, and general expectations of a community may cause policymakers to select traditional prosecution because of its goal of general deterrence. But policymakers should consider whether individuals engaging in criminal activity — rather than society at large — should be the primary targets of norm inducement. Such norm inducement for offenders is already a usual consideration: rehabilitation remains a goal of traditional criminal adjudication.125 But rehabilitation has become a secondary goal at best.126 In primary dispute resolution processes, it cannot similarly take a back seat. Whereas the primary vehicles of rehabilitation in prosecution are expulsion and punishment,127 primary dispute resolution may better serve offenders’ interests with tools like education and communication.128 Such tools have significant potential for reducing recidivism of offenders.129
Where relevant community members would benefit from norm inducement, policymakers can select processes that involve community participation.130 Indeed, there are some crimes that may arguably require general norm inducement or general threats that dispute resolution does not effectively provide. Where necessary, policymakers may select displacement, but they should also peruse available primary dispute resolution processes to select one that effectively deters those for whom deterrence is most necessary.
3. Uniformity. — Although some may have concern with the lack of uniformity in dispute resolution processes, prosecution undermines other measures of fairness. Prosecution displaces original disputes and replaces similar instances of criminalized behaviors with a process believed to be uniform. This uniformity appeals to a general desire for fairness.131 Regardless of the success of prosecution’s intended uniformity,132 it fails to meet measures of fairness and satisfaction that can only be found in processes tailored to the situations of the victim, offender, and community. Primary dispute resolution can take the form of various processes including restorative justice, mediation, and negotiation. This variety attends to the myriad of circumstantial factors that influence disputes.133 Remedies offered can be as disparate as substance use treatment programs, restitution, community service, and mental health services. Here again, participants can consider situational factors to increase fairness and satisfaction for disputants and their communities. These levels of variety allow primary dispute resolution to achieve the aforementioned benefits of direct community participation, community response, restoration for disputants, and realization of unique offender obligations. While primary dispute resolution may vary in form, participants may find it to be fairer than prosecution.
C. Repositioning or Replacing Prosecution
Policymakers can achieve primary dispute resolution by implementing processes before the prosecutorial process begins. Unlike the case with a diversion program, a prosecutor would not have discretion to select candidates. Rather, the primary dispute resolution process would precede a prosecutor’s introduction to the case. If the process reaches successful resolution, the victim might no longer wish to bring a criminal complaint. If the process fails, then a prosecutor may find that it is in the best interest of the community and the disputants to begin displacement by bringing charges.134 Ideally, policymakers could also design the program so that, upon failure, there would be no effect on the offender’s defense in later prosecution. A local prosecutor should not direct the process, impose his will upon it, suspend it, or communicate with the offender before it is completed or abandoned. And after a failure, the prosecutor should not use the process to gather evidence against the offender.135 Without prosecutorial interference, the original dispute could more easily reach resolution through whatever process policymakers mandate.
Policymakers should also consider whether disputants and their communities would entirely replace prosecution for selected crimes. Today, disputants engaging in or subject to criminalized behavior are frequently left with only limited options: refusing to report the crime,136 reporting and submitting their dispute to displacement by prosecution,137 or experiencing forced cooption of their dispute through a report from another community member or an arrest by a police officer. Potential disputants and communities dissatisfied with these limited options may lobby their representatives to implement programs to supplant prosecution for all qualifying disputes involving the criminal behavior. While nonprosecution or decriminalization are already available to many communities, implementation of formal resolution processes may be a more palatable middle ground.138
Conclusion
Many agree that criminal actors need to be held accountable for their violations. But in the traditional criminal legal process, “holding each other accountable” does not resemble any “holding of each other.” Instead, we discard the original dispute, and along with it, the opportunity to hold and heal each other. We discard the interests of the disputants, and we overwhelm them with an artificial dispute that is designed for neither healing nor resolution. In the end, we discard a criminal. This artificial dispute has long-lasting consequences for those directly or indirectly involved. And those consequences amount to a multiplication of harm when communities would prefer that harm be diminished.139
When policymakers view criminal law through the lens of the original dispute, they can address the most present harms. And they can recognize prior harms that cause criminal behavior to arise. A participating community can discover factors such as economic inequity, social accessibility, racial oppression, and other destabilizing circumstances.140 And it can immediately respond to those circumstances on behalf of the disputants and include those circumstances in any assessment of further response. Attending to the original dispute creates opportunities that are closed by the dispute’s displacement by prosecution. Behind that open door, primary dispute resolution empowers and restores victims and offenders, communities control resolution processes and learn from them, and traditional criminal legal processes begin to lose their necessity.