...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
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.
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. Coercive plea bargaining has been criticized on the grounds that it infringes an individual's rights under Article 8 of the UK's Human Rights Act 1998.
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.
Usage in common law countries
United StatesPlea 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. 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.
IndiaPlea 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.
Other common law jurisdictionsIn 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 countriesPlea 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.
FranceThe 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.
EstoniaEstonia 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 fourth reduction of penalty is given.
ItalyIn 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.
PolandPoland also adopted a limited form of plea bargaining, which is applicable only to minor felonies (punishable no more than 3 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, what 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 defendant accepts this suggestions and changes his 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.
- 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)
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