mize work.”
• “Third, like other people, attorneys like to be liked and to enjoy good rela- tionships with co-workers.”
• “Defense attorneys, like other peo- ple, do not want to be proven wrong. A decision to plead guilty, unlike a de- cision to stand trial, cannot be proven wrong.”40
Finally, I think it is worth noting that the
United States with its massive reliance on plea bargaining, far outpaces the rest of the nations in the world in putting peo- ple in prison. Though it has less than 5% of the world’s population, it has almost 25% of the world’s prison population.41
Are we
so much more criminal than the rest of the world? Or is there something awry with our criminal justice system? What percent of the 99% of criminal con- victions that were a result of plea bargains from 2000 to 2012 in Vermont could have been resolved through a restorative pro- cess if Vermont judges, prosecutors, and defense attorneys had been seriously try- ing to implement the policy goals of 28 VSA § 2a? I hope a few Vermont legislators would like to know. I hope a few Vermont legislators are concerned enough about the quality of justice in our state to take a hard look at plea bargaining and the po- tential we have to expand restorative jus- tice processes with those among us who commit serious misdemeanors and felo- nies.42
It Is Time to Take Restorative Justice Seriously
In light of Vermont’s unhealthy reliance on plea bargaining justice, it is time to take restorative justice
seriously. The legisla-
ture could approach restorative justice as if there never were a statute passed with- out debate. It could research and debate the merits of restorative justice processes and their results and compare them to the effects of plea bargaining. Restorative jus- tice does not threaten in any way the jus- tice ordained as a constitutional right for all U.S. citizens. It cannot replace the trial for the defendant who maintains his inno- cence. It can be implemented, however, to free us gradually from the scourge of plea- bargaining. Again, how many felony defen- dants on average in Vermont could be via- ble participants for a restorative justice res- olution?
Nothing prevents restorative justice
agreements from being even more oner- ous for defendants than plea bargain sen- tences. Certainly many victims of crimes will want to see the perpetrators of harm they have suffered isolated and safeguard- ed in confinement. Restorative justice in theory prohibits no form of restoration that the participants mutually agree upon. And
www.vtbar.org
judges can review and approve or disap- prove of restorative agreements—making sure none are cruel or capricious or lacking in deterrent effect. Current or retired law- yers could be trained to be restorative jus- tice facilitators. Perhaps, Governor Shumlin could gather a summit of judicial, legisla- tive, and agency leaders and ask them to brainstorm ways to implement the policy goals of 28 § V.S.A. 2a. Such a sort of con- ference convened in Nova Scotia in 1997, and it led to a commitment and a plan for institutionalizing comprehensive restor- ative justice throughout the province. To- day, much of the world looks to and learns from Nova Scotia’s successes and failures with restorative justice.43
Vermont could do
so as well—and become such a leader for the rest of the United States.
It is exciting to think of the potential if
judges, prosecutors, and defense attorneys in our criminal justice system were to begin to really invest themselves in restorative justice practices and our nascent commu- nity justice system—at least as a means of freeing our criminal justice from the shack- les of plea bargaining. With the expansion of the Sixth Amendment and the right to effective assistance of counsel during plea bargaining, criminal justice may have no option but to try to disentangle itself from plea bargaining to unclog itself. Perhaps Vermont’s attorney general could create an assistant attorney general position whose officeholder would promulgate and pro- mote restorative practices that can be im- plemented on a daily basis by the courts that would help achieve the policy goals of the statute. Perhaps, the defender general can require all public defenders to inform
THE VERMONT BAR JOURNAL • WINTER 2014
their clients about restorative justice and its processes and what would be required of them if they wanted to participate (e.g., “decline to deny the offense”). Perhaps each court could have an experienced facil- itator on hand during arraignments to ex- plain to defendants who expressed interest in restorative justice processes just what they involve. When I have explained restor- ative justice processes to inmates, I have heard back that it would be a lot more dif- ficult to face those they have harmed than to deal with defense attorneys and prose- cutors. One inmate told me, “With them, you can just turn them off like background noise—yada, yada, yada. With your family, you can’t do that.” There are certainly lots of “perhaps” one can think of when contemplating a system of criminal justice that vets and directs suit- able defendants and those they have im- pacted into appropriate restorative justice processes. In light of the innumerable pit- falls of plea bargaining and the flood of back room sentencing of our fellow citi- zens, I think it would be a great shame if our legislators and court officials did not, at least, seriously explore in the near fu- ture means of expanding restorative justice comprehensively into our criminal justice system. Attention should be paid to how effectively one restorative justice process, CoSA (Circles of Support and Accountabil- ity) has proven to be in Vermont in help- ing high risk offenders’ reenter into com- munities. The recent qualitative evaluation of twenty-one CoSAs by Professor Kathyrn J. Fox of the University of Vermont begs the question as to whether CoSAs should be used in earlier stages of an offender’s
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Restorative Justice
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