Plea bargain

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.

A plea bargain allows criminal defendants to avoid the risk of conviction at trial on the original more serious charge. For example, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry jail time.

In cases such as an automobile collision when there is a potential for civil liability against the defendant, the defendant may agree to plead no contest or "guilty with a civil reservation", which essentially is a guilty plea without admitting civil liability.

Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor, for the sake of helping future clients.^[1]

Types

In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty pursuant to an agreement in which the prosecutor stipulates to certain facts that will affect how the defendant is punished under the sentencing guidelines.

Controversy

Plea bargaining is criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.^[2] Coercive plea bargaining has been criticized on the grounds that it infringes an individual's rights under Article 8 of the European Convention on Human Rights, incorporated in the UK's Human Rights Act 1998.^[3]

In the 1991 book Presumed Guilty: When Innocent People Are Wrongly Convicted, author Martin Yant discusses the use of coercion in plea bargaining. (p. 172)

Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.

The theoretical work based on the prisoner's dilemma is one reason that, in many countries, plea bargaining is forbidden. Often, precisely the prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty: here, the innocent one is unlikely to confess, while the guilty one is likely to confess and testify against the innocent.

Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending the defendant away to prison for 10 years, he may make a plea agreement for a sentence of one year; but if plea bargaining is unavailable, a prosecutor may drop the case completely.^[4]

Agency problems sometimes arise in plea bargaining in that although the prosecutor represents the people and the defense attorney represents the defendant, these agents' goals may be far from congruent with those of their principals. Moreover, prosecutors and defense attorneys often view each other as colleagues and generally wish to maintain good relations with one another. A defense attorney often receives a flat fee or in any event will not receive enough additional money if he goes to trial to cover the costs of doing so; this can create an incentive to plea bargain, even at the expense of the defense attorney's client's interests.

On the other hand, the prosecutor may wish to maintain a high conviction rate and avoid losing high-profile trials; thus, settling a case by plea bargain may further his interests, even if the resulting sentence would not effectively deter crime.^[5]

Plea bargaining has been defended as a voluntary exchange that leaves both parties better off, in that defendants have many procedural and substantive rights, but by pleading guilty, defendants sell these rights to the prosecutor, receiving concessions that they esteem more highly than the rights surrendered.^[6] It has been argued that plea bargaining benefits society by ensuring that the guilty are not acquitted.^[7]

Usage in common law countries

United States

Main article: Plea bargaining in the United States

Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority (roughly 90%)^[8] of criminal cases in the United States are settled by plea bargain rather than by a jury trial.^[9][10] Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. The Federal Sentencing Guidelines are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts. A two- or three-level offense level reduction is usually available for those who accept responsibility by not holding the prosecution to the burden of proving its case; this usually amounts to a complete sentence reduction.^[11]

The Federal Rules of Criminal Procedure provide for two main types of plea agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommendation is merely advisory, and the defendant cannot withdraw his plea if the court decides to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agreement, however, binds the court once the court accepts the agreement. When such an agreement is proposed, the court can reject it if it disagrees with the proposed sentence, in which case the defendant has an opportunity to withdraw his plea.^[12]

Plea bargains are so common in the Superior Courts of California that the Judicial Council of California has published an optional seven-page form (containing all mandatory advisements required by federal and state law) to help prosecutors and defense attorneys reduce such bargains into written plea agreements.^[13]

Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they have independent access to information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away.

The lack of compulsory prosecution also gives prosecutors greater discretion as well as the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements.^[14]

Canada

In Canada, the courts always have the final say with regards to sentencing. Nevertheless, plea bargaining has become an accepted part of the criminal justice system although judges and Crown attorneys are often reluctant to refer to it as such. In most Canadian criminal proceedings, the Crown has the ability to recommend a lighter sentence than it would seek following a guilty verdict in exchange for a guilty plea.

Like other common law jurisdictions, the Crown can also agree to withdraw some charges against the defendant in exchange for a guilty plea. This has become standard procedure for certain offences such as impaired driving. Note that in the case of hybrid offences, the Crown must make a binding decision as to whether to proceed summarily or by indictment prior to the defendant making his or her plea. If the Crown elects to proceed summarily and the defendant then pleads not guilty, the Crown cannot change its election. Therefore, the Crown is not in a position to offer to proceed summarily in exchange for a guilty plea.

Canadian judges are not bound by the Crown's sentencing recommendations and could impose harsher penalties. Therefore, the Crown and the defence will often make a joint submission where they will both recommend the same sentence, or (much more commonly) a relatively narrow range (with the Crown arguing for a sentence at the upper end of the range and the defence arguing for a sentence at the lower end) so as to maintain the visibility of the judge's ability to exercise discretion.

Judges are not bound to impose a sentence within the range of a joint submission, and a judge's disregard for a joint submission is not in itself grounds for the sentence to be altered on appeal. However, if a judge routinely disregards joint submissions, that judge would compromise the ability of the Crown to offer meaningful incentives for defendants to plead guilty. Defence lawyers would become reluctant to enter into joint submissions if they were thought to be of little value with a particular judge, which would thus result in otherwise avoidable trials.^[15]

For these reasons, Canadian judges will normally impose a sentence within the range of any joint submission. ^[16]

India

Plea bargaining was introduced in India by Criminal Law (Amendment) Act, 2005, which amended the Code of Criminal Procedure and introduced a new chapter VXXIII (A) in the code, enforceable from January 11, 2006, which affects cases in which the maximum punishment is imprisonment for 7 years; however, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below 14 are excluded.

Pakistan

Plea bargain as a formal legal provision was introduced in Pakistan by the National Accountability Ordinance 1999, an anti-corruption law. A special feature of this plea bargain is that the accused applies for it, accepting guilt, and offers to return the proceeds of corruption as determined by investigators/prosecutors. After an endorsement by the Chairman National Accountability Bureau, the request is presented before the court, which decides whether it should be accepted or not. If the request for plea bargain is accepted by the court, the accused stands convicted but neither is sentenced if in trial nor undergoes any sentence previously pronounced by a lower court if in appeal. The accused is disqualified to take part in elections, hold any public office, or obtain a loan from any bank; the accused is also dismissed from service if a government official.

In other cases, formal plea bargains in Pakistan are limited, but the prosecutor has the authority to drop a case or a charge in a case and, in practice, often does so, in return for a defendant pleading guilty on some lesser charge. No bargaining takes place over the penalty, which is the court's sole privilege.

Other common law jurisdictions

In some common law jurisdictions, such as England and Wales and the Australian state of Victoria, plea bargaining is permitted only to the extent that the prosecutors and the defense can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder. The courts in these jurisdictions have made it plain that they will always decide what the appropriate penalty is to be. No bargaining takes place over the penalty.

In the case of hybrid offences in England and Wales, the decision whether to deal with a case in Magistrates Court or Crown Court is not made by magistrates until after a plea has been entered. A defendant is thus unable to plead guilty in exchange for having a case dealt with in Magistrates' Court (which has lesser sentencing powers).

Use in civil law countries

Plea bargaining is extremely difficult in jurisdictions based on civil law. This is because unlike common law systems, civil law systems have no concept of plea—if the defendant confesses; a confession is entered into evidence, but the prosecution is not absolved of the duty to present a full case. A court may decide that a defendant is innocent even though they presented a full confession. Also, unlike common law systems, prosecutors in civil law countries may have limited or no power to drop or reduce charges after a case has been filed, and in some countries their power to drop or reduce charges before a case has been filed is limited, making plea bargaining impossible. Furthermore, many civil law jurists consider the concept of plea bargaining to be abhorrent, seeing it as reducing justice to barter.^{[citation needed]}

Central African Republic

In the Central African Republic, witchcraft carries heavy penalties but those accused of it typically confess in exchange for a modest sentence.^[17]

Estonia

In Estonia, plea bargaining was introduced in the 1990s: the penalty is reduced in exchange for confession and avoiding most of the court proceedings. Plea bargaining is permitted for the crimes punishable by no more than four years of imprisonment. Normally, a 25% reduction of the penalty is given.^{[citation needed]}

France

The introduction of a limited form of plea bargaining (comparution sur reconnaissance préalable de culpabilité or CRPC, often summarized as plaider coupable) in 2004 was highly controversial in France. In this system, the public prosecutor could propose to suspects of relatively minor crimes a penalty not exceeding one year in prison; the deal, if accepted, had to be accepted by a judge. Opponents, usually lawyers and leftist political parties, argued that plea bargaining would greatly infringe on the rights of defense, the long-standing constitutional right of presumption of innocence, the rights of suspects in police custody, and the right to a fair trial.

For instance, Robert Badinter argued that plea bargaining would give too much power to the public prosecutor and would encourage defendants to accept a sentence only to avoid the risk of a bigger sentence in a trial, even if they did not really deserve it. Only a minority of criminal cases are settled by that method: in 2009, 77,500 out of the 673,700 or 11,5% of the decisions by the correctional courts.^[18]

Georgia

Plea bargaining (Georgian: საპროცესო შეთანხმება, literally "plea agreement") was introduced in Georgia in 2004. The substance of the Georgian plea bargaining is similar to the United States and other common law jurisdictions.

A plea bargaining, also called as plea agreement or negotiated plea is an alternative and consensual way of criminal case settlement. A plea agreement means settlement of case without main hearing when the defendant agrees to plead guilty in exchange for a lesser charge or for a more lenient sentence and/or for dismissal of certain related charges. (Article 209 of the Criminal Procedure Code of Georgia)

Are the Rights of the Defendant Protected During the Plea Bargaining?

The main principle of the plea bargaining is that it must be based on the free will of the defendant, equality of the parties and advanced protection of the rights of the defendant: a)In order to avoid fraud of the defendant or insufficient consideration of his/her interests, legislation foresees obligatory participation of the defense council; (Article 210 of the Criminal Procedure Code of Georgia) b)The defendant has the right to reject the plea agreement on any stage of the criminal proceedings before the court renders the judgment. (Article 213 of the Criminal Procedure Code of Georgia) c)In case of refusal, that it is prohibited to use information provided by the defendant under the plea agreement against him in the future. (Article 214 of the Criminal Procedure Code of Georgia) d)The defendant has the right appeal the judgment rendered consequent to the plea agreement if the plea agreement was concluded by deception, coercion, violence, threat or violence. (Article 215 of the Criminal Procedure Code of Georgia)

What are the Obligations of the Prosecutor while Concluding the Plea Agreement?

While concluding the plea agreement the prosecutor is obliged to take into consideration public interest, severity of the penalty, personal characteristics of the defendant. (Article 210 of the Criminal Procedure Code of Georgia) To avoid abuse of powers, legislation foresees written consent of the supervisory prosecutor as necessary precondition to conclude plea agreement and to amend its provisions. (Article 210 of the Criminal Procedure Code of Georgia)

Is the Oversight over the Plea Agreement Insured?]

Plea agreement without the approval of the court doesn’t have the legal affect. The court must satisfy itself that the plea agreement is concluded on the basis of the free will of the defendant, that the defendant fully acknowledges the essence of the plea agreement and its consequences. (Article 212 of the Criminal Procedure Code of Georgia)

Guilty plea of the defendant is not enough to render guilty judgment. (Article 212 of the Criminal Procedure Code of Georgia) Consequently, court is obliged to discuss 2 important issues: a) Whether irrefutable evidence is presented which proves the defendant’s guilt beyond reasonable doubt. b) Whether sentence provided for in the plea agreement is legitimate. (Article 212 of the Criminal Procedure Code of Georgia) After both criteria are satisfied the court additionally checks whether formalities related to the legislative requirements are followed and only then makes decision. If the court finds that presented evidence is not sufficient to support the charges or that a motion to render a judgment without substantial consideration of a case is submitted in violation of the requirements stipulated by the Criminal Procedure Code of Georgia, it shall return the case to the prosecution. The court before returning the case to the prosecutor offers the parties to change the terms of the agreement. If the changed terms do not satisfy the court, then it shall return the case to the prosecution. (Article 213 of the Criminal Procedure Code of Georgia)

If the court satisfies itself that the defendant fully acknowledges the consequences of the plea agreement, and he/she was represented by the defense council, his/her will is expressed in full compliance with the legislative requirements without deception and coercion, also if there is enough body of doubtless evidence for the conviction and the agreement is reached on legitimate sentence - the court approves the plea agreement and renders guilty judgment. If any of the abovementioned requirements are not satisfied, the court rejects to approve the plea agreement and returns the case to the prosecutor. (Article 213 of the Criminal Procedure Code of Georgia)

What is the Role of the Victim in Plea Agreement Negotiations?

The plea agreement is concluded between the parties - the prosecutor and the defendant. Notwithstanding the fact that the victim is not party to the criminal case and prosecutor is not a tool in hands of victim to revenge offender, the attitude of the victim in relation to the plea agreement is still important. Under Article 217 of the Criminal procedure Code of Georgia, the prosecutor is obliged, to consult with the victim prior concluding the plea agreement and inform him/her about this. In addition, under the Guidelines of the Prosecution Service of Georgia, prosecutor is obliged to take into consideration the interests of the victim and as a rule conclude the plea agreement after the damage is compensated.

2010 Statistical Data

According to the statistical data of the Prosecution Service of Georgia, in 2010 prosecution was initiated against 20,450 people, while prosecution was terminated against 1,556 people (7.6%). According to the Court Statistics, the Court of First Instance heard cases against 20,280 people, while judgments were rendered against 19,956 people, from which plea agreement approved- with 15,867 people (79.5%), and through main hearing against 4,089 people (20.5%). In 2010 19940 people (98.3%) were convicted, including plea agreements. Court proceedings against 240 persons (1.2%) were terminated. Court heard cases by the main hearing against 4,089 people, from which 8 persons (0.2%) were acquitted and 54 people (1.3%) were partially acquitted. Deprivation of liberty was imposed upon 9,134 people (45.8%), conditional sentence - upon 9,485 people (47.6%) and fine - upon 1296 people (6.5%). The amount transferred to the state budget as the result of the fine imposed as punishment through the main hearing of the court, as well as through the use of plea bargaining agreements equals to GEL 112,795,907.1.

Germany

Plea agreements have made a limited appearance in Germany.^[19] However, there is no exact equivalent of a guilty plea in German criminal procedure.^[20]

Italy

Plea bargaining (patteggiamento) The bargaining is not about the charges, but about the sentence, reduced of one third. When the defendant deems that the punishment that would, concretely, be handed down is less than five-year imprisonment (or that it would just be a fine), the defendant may plea bargain with the prosecutor. The defendant is rewarded with a reduction on the sentence and has other advantages (such as that the defendant does not pay the fees on the proceeeding). The defendant must accept to plead guilty to the charges (even if the plea-bargained sentence has some particular matters in further compensation proceedings), no matter how serious the charges are. Sometimes, the prosecutor agrees to reduce a charge or to drop some of multiple charges in exchange for the defendant's guilty plea, often to a lesser offense.

When both the prosecutor and the defendant have come to an agreement, the proposal is submitted to the judge, who can refuse or accept the plea bargaining. ^[21]

Poland

Poland also adopted a limited form of plea bargaining, which is applicable only to minor felonies (punishable by no more than 10 years of imprisonment). The procedure is called “voluntary submission to a penalty” and allows the court to pass an agreed sentence without reviewing the evidence, which significantly shortens the trial. There are some specific conditions that have to be simultaneously met:

• the defendant pleads guilty and proposes a penalty,
• the prosecutor agrees,
• the victim agrees,
• the court agrees.

However, the court may object to the terms of proposed plea agreement (even if already agreed between the defendant, victim and prosecutor) and suggest changes (not specific but rather general). If the defendant accepts these suggestions and changes their penalty proposition, the court approves it and passes the verdict according to the plea agreement. In spite of the agreement, the parties of the trial (prosecution and defendant) have the right to appeal.

References

1. ^ Vanover, Joseph W. (1998), Utilitarian Analysis of the Objectives of Criminal Plea Negotiation and Negotiation Strategy Choice, 1998, J. Disp. Resol., pp. 183, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ucinlr49&section=46 
2. ^ Times Online, November 28, 2007
3. ^ Out-law News, February 16, 2007
4. ^ Kipnis, Kenneth (1978-1979), Plea Bargaining: A Critic's Rejoinder, 13, Law & Soc'y Rev., pp. 555, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/lwsocrw13&section=35 
5. ^ Stephen J. Schulhofer (Jun., 1992), "Plea Bargaining as Disaster", The Yale Law Journal (The Yale Law Journal) 101 (8): 1979–2009, doi:10.2307/796954, JSTOR 796954 
6. ^ E Luna (2007), Marq. L. Rev., https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=91+Marq.+L.+Rev.+263&key=1bf8db962d7aca42980a76cf29469832 
7. ^ GM Grossman, ML Katz (1983), "Plea bargaining and social welfare", The American Economic Review (The American Economic Review) 73 (4): 749–757, JSTOR 1816572 
8. ^ AW Alschuler (1979), Plea bargaining and its history, Colum L. Rev., http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/clr79&section=11 
9. ^ Plea Bargains Findlaw.com
10. ^ Interview with Judge Michael McSpadden PBS interview, December 16, 2003
11. ^ Bibas, Stephanos (2001-2002), Apprendi and the Dynamics of Guilty Pleas, 54, Stan. L. Rev., pp. 311, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/stflr54&section=17 
12. ^ Rule 11, Federal Rules of Criminal Procedure, http://www.law.cornell.edu/rules/frcrmp/Rule11.htm 
13. ^ See Form CR-101, Plea Form With Explanations and Waiver of Rights-Felony, Judicial Council of California.
14. ^ JE Ross (2006), "The Entrenched Position of Plea Bargaining in United States Legal Practice", The American Journal of Comparative Law (The American Journal of Comparative Law) 54: 717–732, JSTOR 20454559 
15. ^ Hewson, Richard (June 10, 2011). "Joint Submissions: How Much Deference Should a Sentencing Judge Give?". http://www.fundamentaljustice.ca/blog/2011/6/10/joint-submissions-how-much-deference-should-a-sentencing-jud.html. Retrieved November 20, 2011. 
16. ^ http://www.encyclopediecanadienne.ca/index.cfm?PgNm=TCE&Params=A1ARTA0006344#SUBLinks
17. ^ Graeme Wood (June 2010), Hex Appeal, The Atlantic, http://www.theatlantic.com/magazine/archive/2010/06/hex-appeal/8103/ 
18. ^ Les chiffres-clés de la Justice, French Ministry of Justice, October 2006
19. ^ Goldstein, Abraham S. (1997), Converging Criminal Justice Systems: Guilty Pleas and the Public Interest, 31, Isr. L. Rev., pp. 169, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/israel31&section=12 
20. ^ Herrmann, Joachim (1991-1992), Bargaining Justice - A Bargain for German Criminal Justice, 53, U. Pitt. L. Rev., pp. 755, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/upitt53&div=26&id=&page= 
21. ^ http://www.canestrinilex.it/eng/risorse/trial.html

External links

• Plea bargaining comes into effect—India Law: A new chapter — Chapter XXI A — on ‘plea bargaining’ has been inserted in the Criminal Procedure Code (1973)