as jail time, as well as restitution to a victim and community service.’?” Ever? Or can these criminal justice officials just not both- er doing so at all—even if a defendant lets the court and the district attorney know he would do so voluntarily? Senator Illuzzi has acknowledged that the policy by itself al- lows the criminal justice system to use re- storative practices for any criminal offense and for sentencing purposes.21 A defendant
properly disposed to-
wards—and who sought— a restorative justice process could make a colorable post-conviction appeal as to the authority of his conviction, in my opinion, if no judge or state’s attorney actually did anything in the way of attempting to have his case re- solved in such a manner. The statute has been law of the land for over twelve years. One would think some effective shaping of the criminal justice system to meet the stat- ute’s policy goal of “a community response to a person’s wrongdoing at its earliest on- set” should have happened by now. But the statute is vague. According to the Ver- mont Supreme Court’s stated tools of stat- utory interpretation, “the primary rule is to give [statutory] language its plain, ordinary meaning” and “when ambiguity renders the plain meaning rule unavailing, … other aids of statutory construction [are used].”22 An aid of statutory construction that applies here is the rule of enacted provisions. “The rule of reenacted provisions reflects the presumption that all language in a statute or regulation is inserted for a purpose.”23 Thus, I reason, if a court and state’s attor- ney’s office ignored a defendant’s notice to them of his willingness to participate in a restorative justice resolution to his charg- es, I would think they would be acting as if the language of 28 V.S.A. § 2a was inserted purposelessly and meaninglessly. I would think the statute must be interpreted to re- quire at least some sort of inquiry as to the viability of a restorative justice resolution and written findings available to the defen- dant and the public.
I believe it makes practical sense to in-
terpret the statute in this manner, especial- ly in light of the expansion by the U.S. Su- preme Court in 2012 of state criminal de- fendants’ Sixth Amendment right to coun- sel in the realm of plea bargaining nego- tiations. Should Vermont courts and state’s attorneys determine whether defendants may participate voluntarily and effectively in restorative justice processes to resolve their charges? “Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.”24 Knowing how popular it is among inmates to file post-conviction relief petitions, I ex- pect in the future that many inmates fac- ing long sentences will begin to file them claiming ineffective assistance of counsel with their pleas. I am afraid a whole new
www.vtbar.org
realm of litigation over criminal plea bar- gaining will further clog our criminal justice system25
—unless some means of resolving
criminal charges in a different manner is developed. Restorative justice processes, perhaps? Surely, within the huge number of convictions that are arrived at through plea bargaining, many could be processed in a restorative manner. Doing so would al- low defense and prosecutors more time to take cases to trial—and insure that consti- tutional rights are not waived by innocent defendants who feel coerced into pleas.
Plea Bargaining or Restorative Justice?
But plea bargaining has become the mo- dus operandi of our criminal justice sys- tem. And our criminal justice system na- tionwide is a warped semblance of what it was meant to be. Here’s an overview by one commentator, Tim Lynch, the director of the Cato Institute’s Project on Criminal Justice, on plea bargaining and what im- pact it has had nationwide on our criminal justice systems:
THE VERMONT BAR JOURNAL • WINTER 2014
In a plea bargain, the prosecutor usu- ally offers a reduced prison sentence if the defendant agrees to waive his right to a jury trial and admit guilt in a sum- mary proceeding before a judge. This standard operating procedure was not contemplated by the Fram- ers. The inability to enter into plea ar- rangements was not among the griev- ances set forth in the Declaration of In- dependence. Plea bargaining was not discussed at the Constitutional Con- vention or during ratification debates. In fact, the Constitution says “the Tri- al of all Crimes, except in Cases of Im- peachment; shall be by Jury.” It is evi- dent that jury trials were supposed to play a central role in the administration of American criminal justice … No one ever proposed a radical re- structuring of the criminal justice sys- tem, one that would replace jury trials with a supposedly superior system of charge-and-sentence bargaining. Like the growth of government in gener- al, plea bargaining slowly crept into
23
Restorative Justice
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