and eventually grew to dominate the system. From the government’s per- spective, plea bargaining has two ad- vantages. First, it’s less expensive and time-consuming than jury trials, which means prosecutors can haul more peo- ple into court and legislators can add more offenses to the criminal code. Second, by cutting the jury out of the picture, prosecutors and judges ac- quire more influence over case out- comes. From a defendant’s perspective,
plea bargaining extorts guilty pleas. People who have never been prose- cuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to ac- cept one year in prison rather than risk a ten‐year sentence, the decision be- comes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an un- usually blunt 2004 opinion, “The fo- cus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”26
John Langbein, a professor of law and legal history at Yale Law School, in a PBS Frontline documentary on plea agree- ments, “The Plea,” characterized the plea bargaining system of justice as follows: “Plea bargaining is a system that is best described as one of condemnation without adjudication. It is a system that replaces tri- al, which is what our constitution intended, with deals.”27
In “The Plea,” Stephen Schul-
hofer, professor of law at New York Univer- sity School of Law, also explained that the system of sentence bargaining is rigged and warped because, “Even if you’re con- vinced you’re innocent and even if you’re convinced that the evidence will show that you’re innocent, the pressure that the sys- tem creates is so strong that it forces peo- ple to say that they’re guilty and to accept a record of conviction.” And he pointed out, “So that’s just a disaster is terms of ef- fective protection of the innocent.”28
Pro-
fessor Langbein explained how draconi- an sentences allow prosecutors to have so much leverage over defendants:
Part of the reason why we in this coun- try have criminal sentences that are so much more severe than in the rest of the civilized world, is the need that prosecutors have to threaten people with these huge sentences in order to get them to waive the right to jury tri- al. So there is a linkage between the notorious severity of our criminal law
24
and the plea bargaining system. We have to have these perverse sentenc- es as a threat in order to get people to waive the right to jury trial and take something less.29
Stephen Bright, a defense attorney, pro- fessor of law at Yale and Harvard, and di- rector of the Southern Center for Human Rights, expressed a perspective on our plea bargaining system in “The Plea” in line with the way inmates whom I teach view it: “The criminal courts of this land are like stockyards in which people are just pro- cessed through like cattle on their way to slaughter. That’s not equal justice. It’s not individualized justice. It’s not really justice at all.”30
In line with these scholars, Albert Alschul-
er, a law professor at the University of Chi- cago, in “The Plea” expressed his view of plea bargaining as a mockery of justice and mercenary at its roots: “Plea bargaining has nothing to do with justice. It has to do with convenience, expediency—making the life of prosecutors and defense attorneys eas- ier and more profitable. It is designed to avoid finding out the truth. It is designed to avoid hearing the defendant’s story.”31 Justice Scalia, while a dissenter to the majority opinion in Lafler v. Cooper, gives an overview of plea-bargaining in our cur- rent justice system that affirms the inherent and corrosive dangers of plea bargaining:
In the United States, we have plea bar- gaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid mas- sive risk by pleading guilty to a less- er offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law pre- scribes for the actual crime.32
Justice Scalia, in his dissent to the Lafler v. Cooper companion case, Missouri v. Frye, also candidly declares, “The plea-bargain- ing process is a subject worthy of regula- tion, since it is the means by which most criminal convictions are obtained.”33 Ac- cording to sources cited in Missouri v. Frye, “ninety-four percent of state convictions are the result of guilty pleas.”34 In Vermont, despite our broad-reaching
restorative justice criminal policy, our crimi- nal courts rely even more heavily on plea- bargaining to obtain convictions than oth- er states. According to the Vermont Center for Justice Research, less than one percent of guilty charges were the result of a trial in the years 2000-2012.35
Less than one per-
cent! This is how far Vermont has drifted into a whirlpool of coerced justice. What are the consequences of all this plea bar-
THE VERMONT BAR JOURNAL • WINTER 2014
gaining? A lack of respect for the criminal processes that give legitimacy to the de- rived sentences? A lack of respect for crim- inal justice officials? A lack of respect for the laws they seek to enforce? More and more citizens streaming into and through the criminal courts? Less and less trials? Banquo’s question to Macbeth after they have seen and heard the witches’ prophe- cies comes aptly to mind, “[H]ave we eat- en on the insane root / That takes the rea- son prisoner?”36
Is what is foul now fair and
what is fair now foul?37 “Plea bargaining”—the very phrase sug- gests a skewed, marketplace kind of jus- tice. Professor Langbein points out another undesirable aspect of plea-bargaining that reveals it as the antithesis of what happens in trials and restorative processes:
Moreover, when plea bargaining actu- ally happens, it’s always out of sight. And as a result, not only does plea bar- gaining replace the constitutional re- quirement of trial with a deal, but plea bargaining attacks another feature of the constitutional design. What the Bill of Rights, the Sixth Amendment calls for is public jury trial, and plea bargain- ing is not public. It’s secret. The evi- dence does not come out in public.38
And Professor Alschuler notes how the se- crecy of plea bargaining can totally shift the scales of justice for a defendant who can afford to pay a defense attorney to represent him and an indigent defendant who must rely on a public defender who may have little time and financial incentive to investigate and fight through the discov- ery process (let alone a trial):
[O]ne of the problems with plea bar- gaining is it depends so much on the quality of the lawyer you have. We have a justice system that makes jus- tice more dependent on the quality of a defense lawyer and on how much money he has than any other legal sys- tem in the world. We have no way of reviewing a lawyer’s performance in the back rooms, where plea bargain- ing occurs, and in conferences with his client.39
Professor Alschuler also argues that the very existence of plea-bargaining as an op- tion tends to impair the quality of defense attorneys’ representation of their clients on account of human nature: • “First, like other people, defense attor- neys like money. A plea bargaining sys- tem subjects these attorneys to pow- erful financial temptations to disregard their clients’ interests.”
• “Second, apart from the desire to make money, attorneys like to mini-
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Restorative Justice
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