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