The City Attorney’s office in Columbus, Ohio has developed a diversion programme, known as the “Night Prosecutor Program”, for channelling many offences, resulting from personal disputes, out of the court system. The programme, which was inaugurated in November, 1971, is currently located in the Prosecutor’s Office in the Central Police Station of Columbus. By means of hearings held in the evenings, the hearing officer helps antagonistic parties to resolve their disputes in face-to-face confrontations as soon as possible after the event which prompted the criminal complaint. I observed the hearings and had extensive discussions with a co-founder of the project, Professor John Palmer of Capital University Law School, Columbus. The other co-founder is the City Attorney, Mr. James Hughes.
The principal objectives66 of the programme are: (1) to reduce court congestion by assisting citizens to solve their personal problems by agreement; (2) to ease tensions between parties involved in a dispute by helping them find an equitable solution to their problems; (3) to prevent the person at fault acquiring a criminal record, which could result in his losing his job or being denied gainful employment at a future date; (4) to provide a forum for the working poor at times which do not interfere with their jobs; (5) to speed the dispensation of ‘ justice to citizens who become involved in minor criminal conduct; (6) to act as a clearing-house by directing the public to other agencies for aid in solving social problems - for example, Alcoholics Anonymous, Salvation Army, Volunteers of America, the Ombudsman, churches and mental health organizations; and (7) to promote faith in the American legal system by listening to all grievances and by encouraging the citizen to feel that the law and the government care what happens to him as an individual.
The office of the City Prosecutor, headed by the City Attorney, Mr. James Hughes, screens all criminal matters involving private citizens and decides which cases are appropriate for diversion into the Night Prosecutor Program. In general, these are matters in which there is a continuing relationship between the parties, such as in the case of families, neighbours, landlords and tenants, or employers and employees. Should the Night Prosecutor Program fail to resolve the dispute, criminal remedies are still available.
Instead of an affidavit being prepared, signed and filed with the Clerk of Courts, a complaint is lodged and an administrative hearing scheduled for approximately one week later. This is a significant time saving for the complainant: it would probably take months for the case to reach trial. Notice is sent to the person accused, advising him of the fact that a complaint has been made against him, and stating the basic charges and the time of the hearing. The notice does not carry the legal force of a subpoena. However, if a party does not attend, as requested, the other may file a criminal complaint in the usual way.
All hearings are scheduled in half-hour blocks between 6 p.m. and 10 p.m. Hearings are held in a private room in the Office of the City Prosecutor, in the presence of the hearing officer, the complainant, the respondent, attorneys (in rare cases) and witnesses, if there are any. The main tasks of the hearing officer are to discover and expose the issues which precipitated the original dispute and to act as mediator and conciliator. The hearing officer conducts the hearing informally, inviting each party to tell his side of the story without interruption. The hearing officer may ask questions and the parties or witnesses may talk with each other in an attempt to work out a solution to the underlying problem. Hearings are “free-flowing”, without regard to the rules of evidence, burdens of proof, or other legalities. Emotional outbursts are common and are not discouraged: without shouting, crying and other expressions of emotion, the basic truth often does not surface.
Early in the programme it became apparent that, since few of the disputes involved questions of law, hearing officers required the skills of a mediator rather than an extensive legal background. As a result the project was revised to include law students as hearing officers, with the Night Prosecutor acting as consulting supervisor. The legal background of the hearing officers generally proved to be more than adequate for the task.
In 1974 some 6,180 disputes were scheduled for hearing by the Night Prosecutor Program. In only 3,274 (52 per cent) of these did the parties appear. In most of the other cases both parties failed to appear and no further action was taken. Of all cases processed only 328 criminal complaints were authorized and cases scheduled for court hearing. The programme also handled 4,227 bad cheque cases of which 237 resulted in the authorization of criminal complaints. In gross figures, a total of 10,407 criminal complaints was processed by the Night Prosecutor Program and only 565 criminal complaints were authorized. Thus, a total of 9,842 cases was diverted from the criminal justice system.67
During 1974 a “call back” programme was initiated. About 30 days after hearing, the parties were contacted by a hearing officer to find out how matters stood. In more than 90 per cent of cases called during 1974 a satisfactory solution had been achieved. Of the remainder only 1.2 per cent had a further contact with the criminal justice system through a police run or new filing.68
In the first nine months of 1975 there was a trend similar to that which obtained in 1974. Of 10,582 cases scheduled for hearing only 5,098 cases were heard. The “call back” programme showed that 93.72 per cent of all cases heard resulted in a solution of the underlying problem and that in only 1.2 per cent were new criminal charges filed. Thus 98.8 per cent of all cases heard by the Night Prosecutor were diverted successfully from the criminal justice system.69
In New South Wales criminal proceedings are initiated in most cases by a police officer. However, any person may initiate proceedings by laying an information before a justice of the peace or a magistrate. Proceedings, once commenced, take basically the same form as those initiated by the police. In cases instituted by the police a police prosecutor generally conducts the prosecution whereas, in the case of the private information, the informant and the defendant may appear in person or through their counsel. In practice, the parties in a private prosecution are often unrepresented and the proceedings are conducted informally. The defendant, if convicted, may be fined and/or placed on recognizance, or imprisoned.
Every year thousands of private criminal charges are processed in New South Wales. Most charges concern disputes arising within a family or between neighbours, and involve only minor injury to person or property. In many cases the disputants have consulted the police who have refused to initiate proceedings, generally because the injury or damage complained of is trivial.
It is difficult to make generalizations on the time taken in hearing private criminal charges. In a few Courts of Petty Sessions in the metropolitan area of Sydney two or three days may be required. At the other extreme, in some areas, charges like this may occupy far less than a day. On the average approximately one day of weekly court time in suburban areas is devoted to hearing private criminal charges.
Before an information is filed, the complaining party sees the chamber magistrate who canvasses the merits of the dispute and attempts to settle it by some means other than court proceedings. In most cases this is very successful; the disputes which reach court constitute only a small fraction of all complaints made at the courthouse. It is regrettable, but unavoidable, that some of these are trivial or unmeritorious.
In my submission there are a number of compelling reasons for introducing an arbitration programme, similar to the “Night Prosecutor Program”, into New South Wales.
First, I believe that many people take court proceedings because other procedures for dealing with their personal problems are not available. Many persons are easily dissuaded from pressing charges, and they are relieved that it is not necessary when they find another recourse available. An arbitration process permits the parties the satisfaction of airing their grievances without having to resort to criminal proceedings. Once the problem is out in the open the disputants often realize they can solve it without further formal assistance.
Second, in family and neighbourhood disputes, both parties are often equally culpable. The complaining party is the one who wins the race to the police station or courthouse. Here an arbitration process is particularly suitable because it encourages compromise between the parties without the need to determine guilt or innocence. The purpose of the hearing is not to determine right or wrong, nor is it to impose sanctions. Rather, the fundamental goal is to reach a mutually satisfactory settlement, whether by restitution, or by a promise to discontinue the source of grievance. The parties are able to present their own versions of the incident without interruption from others. The hearing officer, as a mediator, merely moves the discussion towards reconciliation. The criminal justice process is not suited by nature to working out compromises and solutions to personal problems. The courts consider only whether a crime has been committed and, if so, who is guilty of committing it.
Third, an arbitration programme conducted in the evening is likely to be convenient to the parties in conflict. In Columbus, evening hearings are conducted on weekdays and Saturdays to enable working persons to participate without loss of wages or fear of loss of employment. In the suburban Courts of Petty Sessions in Sydney a hearing on one night a week would probably meet present needs. The importance of not compelling the parties to miss work cannot be over-emphasized. Whilst observing a similar, but day time, diversion programme in Philadelphia, I heard a respondent husband complain about losing time from work because it was the fifth time his wife had “dragged’ him into court. An arbitration programme held in the evening thus acknowledges the problems of the less privileged.
Finally, arbitration hearings are responsible for considerable savings in time and expense. I have already discussed the considerable savings in court time effected by the “Night Prosecutor Program”; from January, 1974, to September, 1975, only 1.2 per cent of those cases where an arbitration hearing was conducted resulted in the filing of a new criminal charge. One cost study70 undertaken in Columbus indicates that the cost per case heard in the “Night Prosecutor Program” is US$27.10. If the computation is based on cases successfully resolved the cost per case is US$30.30. However, if the computation includes those disputes which were presumably settled without direct intervention - that is, where cases were scheduled but charges were withdrawn prior to the hearing - the cost per case is only US$20.12. By comparison, a rough estimate of the cost of processing a criminal misdemeanour through the Columbus court system, from the filing of an affidavit to the end of trial, is US$100; and this estimate could go as high as US$250 a case, depending on the ultimate disposition.
My recommendation is that an arbitration hearing be conducted in those cases where the complaining party has discussed the dispute with the chamber magistrate and, after receiving his advice, decides to proceed with the charge. The purpose of the hearing is to settle the dispute, if at all possible, and the opposing party must therefore be encouraged, but not compelled, to attend. If the attempt at settlement fails, the aggrieved party may still seek redress in court by taking proceedings in the usual way. It may be that a chamber magistrate could preside at the arbitration hearing, and in fact some chamber magistrates are already available at night in certain parts of New South Wales. Consideration could perhaps be given to the appointment of additional chamber magistrates from the Petty Sessions Branch to preside at these hearings. Certainly the presiding officer must have some legal knowledge as he must be able to advise the parties of their legal position and of the penalties prescribed by law. For the convenience of the parties some hearings should be conducted in the evening; in most suburban courts this would mean that hearings were held on only one night of the week. I suggest an experiment in a few courts to determine whether it makes a contribution to improving the criminal judicial process. The results of the Columbus programme suggest that the experiment could well be successful.
Footnotes
66. Manual, Citizen Dispute Settlement, U.S. Dept. of Justice, (1974) pp. 3-6.
67. Palmer, “The Night Prosecutor”, 59 Judicature (1975) pp. 26-27.
68. Ibid.
69. Statistics for 1975 provided for me by Professor John Palmer.
70. Op. cit. note 66, p. 34.
