The Developing Concept of Plea Bargaining Around the World
Plea bargaining is a practice of negotiating an agreement between the prosecution and the defendant in a criminal case wherein the agreement deals with the defendant pleading guilty to a lesser offense in lieu of lenient sentencing, or in case of multiple offenses, pleading guilty to one in exchange of dismissal of other charges. As per the Fair Trials report, 2016, worldwide, there has been a 300% rise in plea bargains since the year 1990 as it is seen to be a form efficient form to meet the ends of justice.1
This method is now often used in criminal courts in order to avoid protracted and complicated trials.2 The supporters of this practice believe that through this approach, the speed of delivering justice increases as the conviction rate increases. Further, they opine that this is also beneficial for the accused as the accused gets lesser punishment and is also enabled with the opportunity to avoid the legal contest which shall save lots of time and resources. However, the critics are of the opinion that plea bargaining is a direct intrusion to the right of a free and fair trial. Moreover, it also hinders justice from being served as the main focus is a shift from following proper process to increasing efficiency by having a higher conviction rate. Majorly there are three types of plea bargaining which are:
- Sentence Bargaining- In this, the defendant bargains for lighter or alternative punishment compared to which may be awarded if got convicted.
- Charge Bargaining- In this, the defendant bargains to reduce charges than he is going to be charged with if not take this recourse.
- Fact Bargaining- In this, the defendant admits to certain facts in return for an agreement not to introduce certain other facts 3
With the rising number of criminal cases pending all over the world, a sudden demand for this practice has been seen within the courtrooms and judicial approaches. Several countries have plea bargaining which constitutes a high and rewarding way of ensuring a good criminal conviction rate. Nonetheless, still many countries don’t have a proper framework to deal with this method and are relying on informal and precedential value.
Plea bargaining in the USA
In the United States, although there is no sanctity of plea bargaining given by the US Constitution, however, the Supreme Court of USA in the case of Brady v. United States has formally acknowledged plea bargaining as one of the procedures to resolve a criminal case. In this case, the court held that offering large sentencing discounts is not per se illegal when it is established that a plea of being guilty is given voluntarily. Followed by this, in another case i.e. Santobello v. New York,4 the Supreme Court held that plea bargaining is an important step in the criminal process and ought not to be dismissed. Therefore when there is an agreement of plea bargaining, the defendant and prosecutor both need to honour the same and in the interest of justice, it is the duty of the prosecution to ensure that the promise of plea bargaining given to the defendant must stand fulfilled.
In the USA, as per Rule 11 of the Federal Rules of Criminal Procedure, there are possibly three options of pleas given to the accused i.e. pleasing either guilty, non-guilty, or Nolo Contendere (No contest)5 The third plea majorly relates to the concept of plea bargaining. Nolo Contendere means that the defendant does not contest the case and thus agrees or disagrees with the charges framed against them and the pleading is made in the same regard to close the case in one shut. Thus Nolo Contendere’s plea is not an admission of guilt but rather a willingness to accept a declaration of guilt in order to prevent going from a trial6 Moreover, judges are not bound to accept such a plea and rather have their discretion to accept or reject the same. The same Rule i.e. Rule 11 also deals with the plea agreement procedure and its declaration. It also provides for the method of withdrawing the plea.
Statistics have shown that more than 97% of federal and 94% of state criminal convictions are obtained through the mode of plea bargaining.7 96.8% of criminal convictions before the District Courts are all by way of pleading guilty. Although the ratio differs from the type of offence nonetheless, it is above 60% for all offence categories. Therefore, plea bargaining is a common method of deciding criminal cases in the USA and hence, a very prevalent mode.
Plea Bargaining in UK-
In the laws of the UK, plea bargaining has not been incorporated in a legislative manner however its informal use is widespread.8 As the same is not formally permitted, there is no legal framework to decide a plea bargain agreement but defense lawyers and prosecutors on their own can informally permit a bargain. However recently on 5th May 2009, the guidelines have been framed to allow plea bargaining in the cases of serious or complex frauds. These guidelines set out a process by which a prosecutor can enter into plea bargaining with the person they are prosecuting for cases of serious fraud. Statistics show that plea bargaining cases, in general, are limited to 65% in Britain where defendants plead guilty.9 One reason which is cited for lower judicial acceptance of plea bargaining is the flexibility offered to a judge using discretion in awarding sentences. So, when judges enjoy such discretion to punish according to mitigating and aggravating circumstances, they can weigh the harshness of the offence, and therefore, plea bargaining does not tend to be a useful alternative.10 Hence, although plea bargaining is evident in the UK, it is not yet pre-dominant like the USA.
Plea bargaining in other countries-
In India, although chapter XXI-A (Sections 265A to 265L) of the Code of Criminal Procedure provides for the framework of plea bargaining, nevertheless, it is not yet used commonly by the judges or by defendants. The concept of plea bargaining was introduced in the year 2006 on the recommendations of the 142nd Law Commission and Justice Malimath Committee who backed up this idea of concessional treatment. Unlike in the USA, where the autonomy of plea bargaining is given to the prosecutor, the same is missing in India and only the accused can apply before the court for invoking such benefit. Moreover, as per the provisions, not every accused is entitled to seek plea bargaining and a certain category of people based on the quantum of punishment or nature of offences committed falls within the scope of plea bargaining. The framework is self-explanatory within these provisions for the satisfactory disposition of the case through plea bargaining. Statistics show that usage of plea bargaining as a mode of dealing with a criminal conviction is significantly low. In the year 2016, only 0.043% of cases were resolved by such a mode. In the year 2017, this number rose to 31,857 making it to 0.27%. It was followed by a decrease in the year 2018 settling at 0.16% . Thus, in any year, bargaining is less than 1% every year.11 On contrary to this, the cases of plea bargaining have seen an unprecedented rise in some of the countries. Canada resolves 90% of its criminal cases through guilty pleas by recognizing three types of plea bargaining i.e. Charge bargaining, sentence bargaining, and fact bargaining.12 Georgia where plea bargaining as a mode of settling cases was meagre 12.7% in the year 2005 had seen its 87% cases being resolved through this method in the year 2012. Similarly, Russia has also seen growth from 37% in 2008 to 64% in 2014. Countries like China and South Africa have also observed more than 20% year-on-year growth in disposing of cases through plea bargaining.13
Certainly, the reliance on plea bargaining is increasing with time, it is necessary to ensure that this method does not result in a factory of convicting people. Two things have to be taken care of that are firstly, that during the negotiations and drawing an agreement, the accused is not coerced or threatened anyway to sign the same as it would directly lead to violation of his fundamental rights. Any plea bargaining agreement entered due to coercion should be held void ab initio and judicial bodies must see if the defendant pleading guilty is doing the same voluntarily. Secondly, it is necessary to also hear the say of victims as victims cannot be side-lined in a criminal trial as they are the ones who have directly suffered. Victim participation should be promoted and they should have proper opportunity to accept, modify or refuse the agreement. Thus, it is required to see that whenever a defendant is pleading guilty for an offence in terms of any bargain, such practice does not violate the rights of any person who is directly or indirectly related to the case as it would lead to failure of the justice system.