Vermont Bar Journal, Vol. 40, No. 2 Winter 2014, Vol. 39, No. 4 | Page 24

Restorative Justice and eventually grew to dominate the system. From the government’s perspective, plea bargaining has two advantages. First, it’s less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code. Second, by cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes. From a defendant’s perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted 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 accept one year in prison rather than risk a ten‐year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, “The focus 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 agreements, “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 trial, which is what our constitution intended, with deals.”27 In “The Plea,” Stephen Schulhofer, professor of law at New York University School of Law, also explained that the system of sentence bargaining is rigged and warped because, “Even if you’re convinced you’re innocent and even if you’re convinced that the evidence will show that you’re innocent, the pressure that the system creates is so strong that it forces people 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 effective protection of the innocent.”28 Professor Langbein explained how draconian sentences allow prosecutors to have so much leverage over defendants: Part of the reason why we in this country 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 trial. 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 sentences as a threat in order to get people to waive the right to