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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 knowing in advance what sentence will be given. 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 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.

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 1-year sentence; but if plea bargaining is unavailable, he 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 another 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 his 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, they sell these rights to the prosecutor, receiving concessions 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

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 about a 35% 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 does bind 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. And the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements also tends to encourage plea bargaining.[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 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 of 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 were to routinely disregard joint submissions then (s)he would compromise the ability of the Crown to offer meaningful incentive 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, thus resulting in otherwise avoidable trials.

For these reasons, Canadian judges will normally impose a sentence within the range of any joint submission. [15]

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 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, 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]

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.[16]

Estonia

In Estonia plea bargaining was introduced in the 1990s, allowing to reduce penalty 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 one fourth reduction of 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) 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.[17]

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 US and other common law jurisdictions. There is an additional requirement in Georgia that the defendant accepting a plea bargain pay a fee, determined by the prosecutor when crafting the plea agreement. The destination of this fee appears to be the general state budget, though it is unclear. If the defendant is unable to afford the fee, then the case will go to trial, where the defendant will have a roughly 0.6% chance of being acquitted or having her trial abandoned by the prosecutor. The statistics of the Supreme Court of Georgia suggest that roughly 56% of criminal cases are solved through plea agreement.[18]

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), he may plea-bargain with the prosecutor. The defendant is rewarded with a reduction on the sentence and has other advantages (he does not pay the fees o 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 they are. It could happen that the prosecutor agrees to reduce a charge, 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 (More about italian criminal trial from www.canestrinilex.it).

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.

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, http://www.jstor.org/stable/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, http://www.jstor.org/pss/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, http://www.jstor.org/stable/20454559
  15. http://www.encyclopediecanadienne.ca/index.cfm?PgNm=TCE&Params=A1ARTA0006344#SUBLinks
  16. Graeme Wood (June 2010), Hex Appeal, The Atlantic, http://www.theatlantic.com/magazine/archive/2010/06/hex-appeal/8103/
  17. Les chiffres-clés de la Justice, French Ministry of Justice, October 2006
  18. Transparency International Georgia (February 2010), Plea Bargaining in Georgia, http://www.transparency.ge/en/post/report/plea-bargaining-georgia
  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=

External links

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