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.

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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.

Criminal procedure
Investigating and charging crimes
Criminal investigation
Arrest warrant · Search warrant
Probable cause · Knock-and-announce
Exigent circumstance
Search and seizure · Arrest
Right to silence · Miranda warning (U.S.)
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Statute of limitations · Nolle prosequi
Bill of attainder · Ex post facto law
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Inquisitorial system · Adversarial system
Charges and pleas
Arraignment · Indictment
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Nolo contendere (U.S.) · Plea bargain
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A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty (and often allocute) or no contest and in some cases to also provide testimony against another person in exchange for some agreement from the prosecutor as to the punishment. A plea bargain can also include the prosecutor agreeing to charge a lesser crime (also called reducing the charges), and dismissing some of the charges against the defendant. In most cases, a plea bargain is used to reduce jail sentence time or fines associated to the crime being charged with.

Plea bargaining 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^[1][2]. 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.

Under federal law, as of January 27, 2007, the maximum a plea bargains can reduce jail sentences and fines are 50%.

Claims in favor of plea bargaining

One of the key arguments in favor of plea bargains is that they help courts and prosecutors manage caseloads. In the United States, defendants have a right to a speedy trial under both the Sixth Amendment to the United States Constitution as well as by statute. The meaning of "speedy" is not fixed in terms of a specified amount of time but is determined according to the circumstances. However, if the speedy trial is not held, the case is dismissed and the defendant cannot again be charged with the crime. (See: Double Jeopardy) By plea bargaining, prosecutors can reduce the number of cases set for trial so that cases do not get dismissed.

Thus it can be argued that the American criminal justice system would simply cease to function without plea bargaining, and that it forms a framework wherein the accused and his accusers can reach an agreement which settles the case once and for all, in what is hoped will be a spirit of fairness.

Another reason plea bargains are favored is that it allows criminals who accept responsibility for their actions to receive consideration for their remorse and for not causing limited resources to be expended in further investigating and litigating their case...i.e. it lets the justice-system skip the 'making them feel sorry for what they've done' and get straight to the 'accepted punishment.'

In other cases, a defendant may be culpable in one criminal matter, but have information that would help in prosecuting a broader or more significant matter. In such a case, prosecutors may agree to reduced charges or sentencing in the first matter, in exchange for the defendant's cooperation (e.g. testimony) in prosecuting the larger matter.

In still other cases, prosecutors may be certain of the guilt of the defendant in a matter, but the admissible or available evidence might not be enough to convince a jury of the defendant's guilt. This could be the result of a witness or victim dying prior to trial or certain evidence being lost or ruled inadmissible. In those situations it can be of benefit to both the prosecutor and the defendant to arrange a plea bargain; the prosecutor avoids the chance that the defendant could be found not guilty and the defendant avoids the chance that he or she could be found guilty of more serious charges or given a heavier punishment.

Plea bargaining also allows prosecutors to settle cases without forcing a victim to endure a lengthy court process or have to testify in a jury trial. This can be particularly important in cases involving fragile witnesses or victims (young children in sexual abuse cases, elderly people who have been victimized by relatives, seriously ill people and others).

Claims in opposition to plea bargaining

Critics of the system claim that the plea bargain system can put pressure on defendants to plead to crimes that they know that they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the defense lawyer, which puts persons who can afford good lawyers at an advantage.

Furthermore, critics claim that the system can encourage prosecutors to overcharge at the start of a case which leads to caseload pressures or unusually severe penalties; one claimed example is young murderer Lionel Tate who received a lengthy sentence for killing a young girl. Finally, many jurists, especially in civil law nations, find the notion of plea bargaining contrary to the purpose of the law in which a specific action should be associated with a specific penalty. The introduction of a version of plea bargaining was highly controversial in France, see below.

Lastly, the plea bargain may itself carry unintended ramifications. In some situations, notably where resident aliens are defendants in the United States, pleading guilty to a felony in a plea bargain should result in the criminal being deported. Because a state judge has no influence over immigration decisions by the federal government, a resident alien charged with a crime may take a plea bargain, plead guilty, and consequently be deported by the federal government for committing a "crime of moral turpitude." Such unintended or unforeseen effects of either a plea bargain or conviction at trial are sometimes called the collateral consequences of criminal charges.

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. How we will justify the complainant against whom crime took place and or aggrived person.

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.

Other common law jurisdictions

In some common law jurisdictions, such as England and Wales, and Victoria, Australia, 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.

Plea bargaining 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, 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 he 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.

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. [1][2][3] 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 530000 decisions by correctional courts, only 21000 were CRPC.^[3]

Estonia

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

Italy

In Italy, the procedure of pentito (litt. "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.

See also

• Michael Gorr and Sterling Harwood, Controversies in Criminal Law, Boulder, CO: Westview Press, 1992.
• Prisoner's dilemma

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. ^ Plea Bargains Findlaw.com
2. ^ Interview with Judge Michael McSpadden PBS interview, December 16, 2003
3. ^ Les chiffres-clés de la Justice, French Ministry of Justice, October 2006

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