plea-bargain

To make an agreement in which a defendant pleads guilty to a lesser charge and the prosecutor in return drops more serious charges.

Is a process whereby a person accused of a crime pleads guilty to a specified charge in return for an agreed‐upon sentence, a sentence recommendation to the judge, or the dismissal or reduction of other charges. Typically, defense counsel and the prosecutor negotiate the charges to be brought. If the bargain pertains to the sentence to be meted out, a judge may also participate unless barred from doing so.

Specific aspects of the process vary greatly from one jurisdiction to another: from a highly adversarial setting to one in which the participants cooperatively seek “substantive justice” and from a court where only charges may be bargained because of mandatory sentencing policies to one that focuses on sentences because they are authorized to be indeterminate for most, if not all, offenses. In other courts, the emphasis is on the contestability of cases. If the facts are undisputed, a guilty plea becomes a foregone conclusion, and only a disposition needs to be negotiated. Within a given court or jurisdiction, the process may vary from case to case depending on the proclivities and the degree of involvement by the major actors: prosecutor, defense attorney, judge, and defendant.

The origins of plea bargaining are obscure. There is evidence that it existed by the middle of the nineteenth century. Although heavy case‐loads and overly crowded prisons are often cited as causes, a more likely explanation is the bureaucratization of the criminal justice system. It conveniently settles cases where guilt is obvious as well as those where proof of all elements of the charge is problematic, thereby lessening risk to both defendant and prosecution. Because nineteenth‐century trials were fast‐paced affairs that disproportionately ended in a guilty verdict, plea bargains were an attractive alternative especially to guilty defendants. By “copping a plea,” they could determine their own fate, rather than leaving it to the not so tender mercies of judge and jury.

Although the frequency of plea bargains in rural areas belies its origin in backlogged courtrooms, today's criminal justice system would certainly collapse without the rapid disposition of most cases. Trials are slow, cumbersome, and long. Prosecutors and defense counsel would require much more time to prepare their cases. Scheduling witnesses would become guesswork. The time between arrest and trial would lengthen greatly. Conviction rates would fall. Court‐appointed attorneys would refuse to serve because fee schedules would be inadequate to compensate them for their time.

Because defendants who plead guilty waive three important constitutional rights—self‐incrimination, jury trial, and the right to confront and cross‐examine one's accusers—the Supreme Court has been called upon to determine the constitutionality of plea bargaining. In Boykin v. Alabama (1969), the Court held that the record must disclose that the defendant voluntarily and understandingly pled guilty. In Brady v. United States (1970), it ruled that the voluntariness of a guilty plea was not vitiated by fear of a heavier sentence following trial, even though that fear was death under a statute that the Court declared unconstitutional subsequent to Brady's guilty plea. And in Santobello v. New York (1971), the Court described plea bargaining as “an essential component of the administration of justice. Properly administered, it is to be encouraged” (p. 260). The Supreme Court has defined the Sixth Amendment's guarantee of “Assistance of Counsel” to mean effective assistance, which seems to entail a modicum of bargaining and negotiation, as suggested in Strickland v. Washington (1984) and Nix v. Whiteside (1986).

The Supreme Court's stamp of approval has overcome some concerns about due process violations. But others remain: coercion, false pleas, and injustice, on the one hand; excessive leniency, reduction of deterrence, and the value of the rule of law as a symbol, on the other. Although plea bargaining prevents the criminal courts from becoming submerged in a sea of cases, it does produce effects that deviate markedly from those of a formal adversarial system in which trial by jury is the norm rather than the infrequent exception. Tasks that theoretically are the responsibility of judges and jurors—the determination of innocence and guilt, and the imposition of sentences—are performed instead by prosecutors and defense attorneys. Because the latter's' primary role is that of advocate rather than decision maker, extraneous considerations may affect the process. Thus, a prosecutor may offer the accused an especially attractive plea in order to avoid disclosure of an undercover witness or where the evidence is weak or tainted, perhaps as the result of an illegal search or an involuntarily induced confession.

On the other side, experienced defendants and attorneys who have learned how to drive sharp bargains will fare better than those with lesser negotiating ability. Unskilled defendants may become chagrined or embittered to learn that their sentences are markedly more severe than those of similarly situated convicts.

The result is a system in which bargaining replaces evidence as the paramount determinant of guilt or innocence. Although plea agreements generally appear on the record, ambiguity clouds the extent to which judges require a factual basis to support them. Administrative pressure on the prosecutor and the economic orientation of the defense attorney drive the system. Guilt is presumed rather than innocence. Features of an assembly line characterize the process rather than those that typify a model of due process.

.

See also Due Process, Procedural

Bibliography

• William F. McDonald and James Cramer, eds. Plea Bargaining (1980).
• William M. Rhodes, Plea Bargaining: Who Gains? Who Loses? (1978)

— Harold J. Spaeth

Plea bargaining is the process by which a person accused of a crime may bargain with the prosecutor to receive a lesser punishment. Typically, the accused person will plead guilty, sometimes to a lesser charge than the original one (to manslaughter rather than murder, for example). This process saves the government the time and cost of a jury trial in exchange for a reduced sentence.

Defendants who plead guilty as part of a plea bargain give up three constitutional rights: the right of trial by jury, the right to confront and question one's accusers, and the right to refuse to incriminate oneself. In Boykin v. Alabama (1969) the Court ruled that plea bargaining is constitutional as long as the defendant gives up his constitutional rights voluntarily and with full comprehension of the trade-offs of the deal.

Plea bargaining is the process of negotiation between the parties in a criminal case involving the defendant's agreement to plead guilty in return for the prosecutor's concession reducing either the sentence or the seriousness of the charge. Typically, more than 75 percent of criminal cases end in guilty pleas, almost all resulting from plea bargaining. In federal courts, virtually all defendants who plead guilty qualify for a 20 percent reduction in the length of their sentence.

Prosecutors benefit from plea bargaining by eliminating the risk of an acquittal and saving on the costs associated with the time and elaborate procedures a trial entails. Some plea bargains also obligate the defendant to provide information or other cooperation to law enforcement. Defendants benefit by reducing the uncertainty associated with trial and avoiding harsher punishment. In some plea bargains, the defendant must bear a degree of risk because the judge, who typically is not a part of the negotiation, still decides what sentence the defendant receives. In these cases, the benefit to the defendant is the likelihood that the judge will accept the prosecutor's recommendation that a charge be dismissed or that the defendant receive a lighter sentence.

The U.S. Supreme Court has recognized that plea bargaining is an important component of our judicial system and that it is legitimate for prosecutors to use their power to persuade defendants to plead guilty. Plea bargaining is constitutional so long as prosecutors perform all the terms of the agreement and do not threaten defendants with charges unsupported by probable cause.

Bibliography

Supreme Court Cases Blackledge v. Allison, 431 U.S. 63 (1977).

Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Brady v. United States, 397 U.S. 742 (1970).

Santobello v. New York, 404 U.S. 257 (1971).

Federal Laws

United States Sentencing Guidelines, 18 United States Code Appendix, §3E1.1.

Rossman, David. Criminal Law Advocacy, Vol. 2. Guilty Pleas. New York: Matthew Bender, 1999.

The process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to court approval.

Plea bargaining can conclude a criminal case without a trial. When it is successful, plea bargaining results in a plea agreement between the prosecutor and defendant. In this agreement the defendant agrees to plead guilty without a trial, and in return the prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the court. Plea bargaining is expressly authorized in statutes and in court rules.

In federal court, for example, plea bargaining is authorized by subsection (e) of rule 11 of the Federal Rules of Criminal Procedure. Under rule 11(e), a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend to the court a particular sentence or agree not to oppose the defendant's request for a particular sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. Under rule 11(e), plea bargaining must take place before trial unless the parties show good cause for the delay.

Generally a judge will authorize a plea bargain if the defendant makes a knowing and voluntary waiver of his or her right to a trial, the defendant understands the charges, the defendant understands the maximum sentence he or she could receive after pleading guilty, and the defendant makes a voluntary confession, in court, to the alleged crime. Even if a defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea agreement if the charge or charges have no factual basis.

The judge does not participate in plea bargain discussions. Prosecutors have discretion whether to offer a plea bargain. However, a prosecutor may not base the determination of whether to negotiate on the basis of an unjustifiable standard such as race, religion, or some other arbitrary classification.

Plea bargaining can be advantageous for both prosecutors and defendants. Prosecutors may seek a plea bargain in certain cases to save valuable court time for high-priority cases. Prosecutors often are amenable to plea bargaining with a defendant who admits guilt and accepts responsibility for a crime: plea bargaining in this context is considered the defendant's reward for confessing. Prosecutors also accept plea bargains because they are evaluated in large part according to their conviction rates and all plea bargains result in a conviction because the defendant must plead guilty as part of the plea agreement.

Criminal defendants may also benefit from plea bargaining. Plea agreements provide quick relief from the anxiety of criminal prosecution because they shorten the prosecution process. Furthermore, plea agreements usually give defendants less punishment than they would receive if they were found guilty of all charges after a full trial. For example, assume that a defendant has been charged with one count of driving under the influence and one count of possession of a controlled substance with intent to sell. If the defendant goes to trial and is found guilty on both counts, he could receive a prison sentence of several years. However, if he agrees to plead guilty to the charge of possession with intent to sell, the prosecutor may drop the driving-under-the-influence charge. The net result would be a slightly shorter prison sentence than would result with inclusion of the other count. As part of the same deal, the prosecutor also may agree to reduce the remaining charge in exchange for something from the defendant. For example, the prosecutor may ask the defendant to testify against the supplier of the drugs or to build a case against the supplier by acting as an agent for the police. A reduced charge, for example down to simple possession from possession with intent to sell, would further decrease any possible prison sentence. Finally, the prosecutor may agree to recommend to the court that the defendant serve a shorter prison sentence than the maximum term allowable under the simple possession statute.

Defendants are not required to enter into plea negotiations or accept a plea agreement offer. Some defendants choose to decline a plea bargain if they believe that the risk of conviction is outweighed by the possibility of acquittal. Other defendants may disregard the risks and make a principled choice to proceed to trial. Some of these defendants seek to use trial proceedings as a forum for expressing dissent, and others merely wish to exercise their constitutional right to a trial, or to publicly declare their version of events.

Prosecutors likewise are not obliged to plea bargain. Where the alleged crime is particularly heinous or the case is highly publicized or politically charged, a prosecutor may be reluctant to offer any deals to the defendant in deference to victims or public sentiment. For example, a prosecutor may not offer a bargain to a person accused of a brutal rape and murder because such acts are widely considered to deserve the maximum allowable punishment.

The political influence on plea bargaining is more nebulous. Because prosecutors are hired by federal, state, and local governments, they often have political ties. If a case involves a prominent member of a political party, a prosecutor may refuse to offer a plea bargain to avoid the appearance of favoritism.

When a court accepts a plea agreement, the guilty plea operates as a conviction, and the defendant cannot be retried on the same offense. If the defendant breaches a plea agreement, the prosecution may reprosecute the defendant. For example, assume that Defendant A, as part of the plea agreement, must testify against Defendant B. If Defendant A pleads guilty pursuant to this agreement but later refuses to testify against Defendant B, the prosecutor may seek a revocation of the plea agreement and guilty plea.

If the government breaches a plea agreement, the defendant may seek to withdraw the guilty plea, ask the court to enforce the agreement, or ask the court for a favorable modification in the sentence. The government breaches a plea agreement when it fails to deliver its part of the plea agreement. For example, if a prosecutor agrees to dismiss a certain charge but later reneges on this promise, the defendant may withdraw her guilty plea. An unenthusiastic sentence recommendation by a prosecutor is not a breach of a plea agreement (U.S. v. Benchimol, 471 U.S. 453, 105 S. Ct. 2013, 85 L. Ed. 2d 462 [1985]).

When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: a defendant's statements to government agents are admissible. Furthermore, a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant's credibility after the defendant testifies.

Many jurisdictions maintain statutes that require victim notification of plea bargaining. In Indiana, for example, a prosecutor must notify the victim of a felony of negotiations with the defendant or the defendant's attorney concerning a recommendation the prosecutor may make to the court. If an agreement is reached, the prosecutor must show the agreement to the victim, and the victim may give a statement to the court at the sentencing hearing (Ind. Code § 35-35-3-2 [1996]).

Plea bargaining was not favored in colonial America. In fact, courts actively discouraged defendants from pleading guilty. Courts gradually accepted guilty pleas in the nineteenth century. As populations increased and court procedural safeguards increased, courts became overcrowded, and trials became more lengthy. This made trial in every case an impossibility. By the twentieth century, the vast majority of criminal cases were resolved with guilty pleas. Plea bargaining is now conducted in almost every criminal case, and roughly nine out of ten plea discussions yield plea agreements.

See: Beyond a Reasonable Doubt; Criminal Law; Criminal Procedure; District and Prosecuting Attorneys; Due Process of Law; Probable Cause.

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A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case where by 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 gives criminal defendants the opportunity to avoid sitting through a trial risking conviction 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 a car accident 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.

Contents 1 Controversy 2 Types 3 Usage in common law countries 3.1 United States 3.2 India 3.3 Pakistan 3.4 Other common law jurisdictions 4 Usage in civil law countries 4.1 France 4.2 Estonia 4.3 Italy 4.4 Poland 5 External links 6 References

Controversy

The United States Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. (Santobello v. New York, 404 U.S. 257, 261 [1971]). The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value." (People V. Glendenning, 127 Misc.2d 880,882 (1985)) Notably, in 1975 the Attorney-General of Alaska, Avrum Gross, ordered an end to all plea-bargaining;^[1] subsequent attorneys-general continued the practice. Similar consequences are observed in New Orleans, Ventura County, California, and in Oakland County, Michigan, where plea bargaining has been terminated. Bidinotto found:^[2]

“

...ending plea bargaining has put responsibility back into every level of our system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served – and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system.

”

Some legal scholars argue that plea bargaining is unconstitutional because it takes away a person's right to a trial by jury. In fact, Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.^[3]

Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.^[4] 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.^[5]

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 why, 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.

Types

There are three types of plea bargaining, two of which are most commonly used. Charge bargaining is used when a defendant pleads guilty to a less serious crime than one originally imposed. Count bargaining is used when the defendant pleads guilty to a fewer number of the charges. Sentence bargaining is used when the defendant pleads guilty knowing what sentence will be given.

Usage in common law countries

United States

See also: Federal Sentencing Guidelines

Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial^[6][7]. 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.

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 XXI (A) in the code which is enforceable from January 11, 2006. This affects cases in which the maximum punishment is imprisonment for seven years; however, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below the age of fourteen are excluded.

Pakistan

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

Outside, this formal plea bargain in Pakistan is limited, however 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 courts 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.

Usage in civil law countries

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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, that 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]}

France

The introduction of a limited form of plea bargaining (comparution sur reconnaissance préalable de culpabilité or CRPC, often summarized as plaider coupable) 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, most specifically attorneys and left-wing parties, argued that plea bargaining would gravely 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 incite defendants to accept a sentence simply to avoid the risk of a bigger sentence in a trial, even if they did not really deserve it. Only a small minority of criminal cases are settled by CRPC: in 2005, out of 530 000 decisions by correctional courts, only 21 000 were CRPC.^[8]

Estonia

In Estonia plea bargaining has been introduced in the 90s, allowing to reduce penalty in exchange for confession and avoiding most of the court proceedings. In Estonia plea bargaining is permitted for the crimes punishable by no more than 4 years of imprisonment. Normally one fourth reduction of penalty is given.^{[citation needed]}

Italy

In Italy, the procedure of pentito (lit. "he who has repented") was first introduced during the "years of lead" for counter-terrorism purposes, and generalized during the Maxi Trial against the Mafia in 1986-1987. The procedure has been contested, as since pentiti received lighter sentences as long as they supplied information to the magistrates, they have been accused, in some cases, of deliberately misleading the Italian justice.

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, then 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 right to appeal.

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)

References

1. ^ http://www.jstor.org/pss/3053259
2. ^ Bidinotto, Robert J. (1994), "Subverting Justice", Criminal Justice? The Legal System vs. Individual Responsibility, Foundation for Economic Education, pp. 76 
3. ^ http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf, Regulation Magazine, Fall 2003
4. ^ Times Online, November 28, 2007
5. ^ Out-law News, February 16, 2007
6. ^ Plea Bargains Findlaw.com
7. ^ Interview with Judge Michael McSpadden PBS interview, December 16, 2003
8. ^ Les chiffres-clés de la Justice, French Ministry of Justice, October 2006

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