AUDIENCE COMMENT: I am Paul Chevigny of the New York University School of Law faculty. Fifteen years ago in New York City, prior to Baldwin v. New York, I we had no jury trials for misdemeanor charges. As in Philadelphia, there were an enormous number of trials, and they were short, although not as short as the ones Professor Schulhofer described. Nevertheless, the guilty plea rate was still extremely high. I think it was over ninety percent even then, though not as high as it is now. The guilty plea rate was high, because courts placed a premium on a plea. For a great many judges, a guilty plea justified a shorter sentence. That attitude is still prevalent, and it is not unconstitutional. Accordingly, if the Philadelphia system is to work elsewhere, it will require folkways on the part of the bar and the judges which permit and encourage the use of bench trials as contrasted with pleas. In a system under as much bureaucratic and economic pressure as New York’s is, how can that happen? How do you envision pragmatically changing a system which has pressures towards pleas that the Philadelphia system apparently doesn’t have?

STEPHEN SCHULHOFER: You’ve put your finger on a very tough problem.The Philadelphia system grew up for reasons that are not fully understood. It simply happens to be part of the culture in Philadelphia that judges do not place pressure on defendants to choose bench trials rather than guilty pleas.There is systemic pressure to waive a jury, but as between a guilty plea and a bench trial, the judges do not attempt to establish a tacit sentencing differential that would create pressure.