This commentary is by Gage Johnson, a third-year law student at Vermont Law and Graduate School in South Royalton.
In 2019, more than 97% of Vermont misdemeanor convictions came via a guilty plea. Many Vermonters might be shocked to learn that our legal system is not one focused on jury trials but rather on convictions. The liberty of the accused is no longer in the hands of a jury, as our system intended at the founding with the Sixth Amendment, but rather in the hands of a single state’s attorney or one of their deputies. Such power is too great to be concentrated in the hands of primarily one person and must be returned to the public, where it rightly belongs.
Under Rule 3.8(a) of the Vermont Rules of Professional Conduct, a state’s attorney needs only probable cause to bring a charge. “Probable cause” is a legal term that is complex to define, but what’s important is that it is much less than the “proof beyond a reasonable doubt” burden that the state carries at trial. This raises the question: Why would any Vermonter charged with a crime not hold the state to its burden at trial? Some people may think the accused are simply taking responsibility for the state’s allegations, but the answer in reality is more nuanced.
First, state prosecutors in Vermont can individually be responsible for upward of 700 active cases. Such a caseload makes it impossible for them to put the necessary time and effort into taking every case to trial. Thus, prosecutors are heavily incentivized to aggressively pursue a plea bargain in nearly every case assigned to them. This leads to overcharging defendants to get them to plead down to lesser charges, arguing for stricter conditions of release at arraignments, and so on.
Second, with felony charges, a defendant could face the possibility of years in prison if convicted at trial. Vermont prisons are well documented as unsanitary and overcrowded. This is yet another tool the prosecutor may use to pressure Vermonters into forfeiting their constitutional right to a jury trial.
Third, Vermonters relying on a public defender lack the same bargaining power as the prosecutor. Their public defender is likely handling a similar caseload to the prosecutor and cannot give the appropriate time needed to mount the best defense for every case. Further, the defendant has everything to lose in the plea negotiations, while it is simply another day at the office for the prosecutor. All the pressure is on the accused, which can leave innocent people in real legal limbo.
Two things must occur to return our justice system to its rightful place of prioritizing the constitutional and procedural rights of defendants over getting convictions. First, Vermont should require prosecutors to have more than probable cause to bring a charge. Second, Vermont needs to make a more conscious effort to divert more people out of the court system to lower caseloads.
Prosecutors should believe they can prove each and every charge they bring before a jury beyond a reasonable doubt. This eliminates prosecutors’ being incentivized to overcharge people in order to pressure the accused into taking a lesser deal to avoid trial. We must return the power to decide a person’s liberty back to the hands of 12 jurors rather than one prosecutor. Our criminal justice system works best when it centers around the community rather than one person’s personal goals and ambitions.
More manageable caseloads are needed to prioritize jury trials. Prosecutors here, too, hold all the power on when to bring criminal charges. According to the Vermont Association of Court Diversion and Pretrial Services, currently only around 20% of misdemeanors are being resolved through diversion. The Vermont criminal bar should strive to get this number much higher. Doing so ensures that our local prosecutors are actually spending their time and resources on the cases that most seriously concern public safety.
