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Plea Agreements And Constitutional Rights

Plea Agreements And How The Constitutional Rights Of The Accused And The Society’s Interests In A Criminal Trial Are Met Or Violated: A Study Into The Provisions Of Plea Agreements In The Criminal Procedure Code


The definition of plea agreement varies depending on the jurisdiction and the context of its use. In the simplest meaning, plea agreement otherwise known as plea bargaining is the defendants agreement to plead guilty to a criminal charge with the reasonable expectation of receiving some consideration from the prosecution for doing so.

The Black’s Law dictionary provides a general definition that serves as a useful starting point to describe the characteristics of plea agreement. It defines plea bargaining as the process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to courts approval. Plea bargaining involves the defendant pleading guilty to a lesser offence or to only one of the counts of a multi-count indictment in return for a lighter sentence than that possible of the grave charge. Plea bargaining is based on three essential components; knowing of one’s rights, a voluntary waiver of such rights and a factual basis to support the charges to which the accused is pleading guilty to.

Section 137 A of the criminal procedure code defines a plea agreement as an agreement entered by the defence and prosecution in a criminal trial.

Plea bargaining in America was challenged on 1970 on the grounds that it was unconstitutional but the court acknowledged that it was not unconstitutional to extend a benefit to a defendant who would in turn extend a benefit to the state. The United States Supreme Court formally accepted plea bargaining as essential for administration of justice, and when properly managed, was to be encouraged.

This study is aimed at looking whether the existing provisions of plea bargaining violate rights of accused, the victim and society and if they should be accepted or deplored.

Chapter one will be the introductory chapter. It will contain a look into the background of the problem and the statement of the problem. It will also contain the definition of terms used in the study.

Chapter two will look at an in depth study to the use of plea bargaining and the reasons for its emergence whereof in other common law jurisdictions namely India and United States.

Chapter three will envisage a scholarly debate as regards the rights of the accused guaranteed by the constitution, how they are violated and whether such a violation can be justified. It will look at the interests of the victim of a criminal activity and that of the society and how plea bargaining violates or maintain such. Similarly it will have another scholarly debate as to the justifications of plea bargaining and whether it should be abolished or reformed.

Chapter four will include a summary and the conclusion of whether plea bargaining should be deplored or accepted and/or reformed. It will include possible recommendations for the law of plea agreements in Kenya.

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Background Of The Problem

Plea bargaining emerged and has gained acceptance in the legal community only in the recent decade. One of the earliest indictments of plea bargaining was a 1495 English statute authorizing the prosecution of unlawful hunting before a justice of the peace. It provided that if a defendant confessed his crime, then he was convicted of a summary offence but if he denied his guilt, he was prosecuted as a felon. Many courts disapproved this practice due to its infringements of the defendant’s rights.

As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenth-century common law procedure to channel the mounting caseload into non trial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing.

The dominance of plea bargaining was realized in the 1920’s and remerged in the 1960’s as a result of the World War II. In the United States a vast majority of cases are settled by plea bargaining rather than a jury trial. The courts where initially sceptical about plea bargaining, today it dominates the day to day operations of the criminal justice system with over 95 per cent of convictions attained by way of plea bargaining.

Kenya has pulled off the astonishing feat of sustaining a regime of constitutional liberty, with vigorous judicial protection of human rights, in a large, poor, and diverse society with scant material resources. The Kenyan courts have adapted the structure of colonial law to the vastly different conditions of independent democratic Kenya and to protect and extend constitutional liberty.

The constitution of Kenya at chapter five guarantees the fundamental rights and freedoms of the accused person. The rights include the right to life, liberty, security of the person and most importantly, protection of the law.

The Constitution provides that if a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be accorded a fair hearing within a reasonable time by an independent and impartial court established by law. Thus, the right to a speedy, full and fair hearing as a right under the protection of the law cannot be negated.

The Kenyan court system is saddled with a backlog of pending cases across hundreds of subordinate courts, high court and the court of appeal. This problem of delay and backlog is more critical in a criminal case because the restraint imposed by arrest and consequent incarceration continues at all stages, be it the stage of investigation, inquiry, trial, appeal or revision.

The other major cause of the back log is heightened criminal activity, few staff and lack of funds. Most pending cases are for offences carrying the capital punishment. It has always taken years for a case to be heard and be fully disposed. The accused person spends a lot of time in remand prison awaiting trial especially those faced with non-bail able offences. Remandees have to wait for a long time for their case to be fully dispensed. This back log poses a great miscarriage of justice.

The country also faces a rising concern over human rights violations attributed to extra judicial, summary and arbitrary prosecutions linked to the police. The significant delay of cases in our courts coupled by the insufficiency of the prosecution has made it difficult to have a case be properly investigated and prosecuted.

This has led to the view that the introduction of plea agreement in the criminal jurisprudence would subsequently lead to a reduction of such delay and backlog. The criminal procedure code was amended in 2008. Sections 207 and 281 were amended and new sections, that is, 137A to 137 O were added to section 137. This brought plea agreement to law in Kenya.

What led to the introduction of plea bargaining in the United States was congestion in their courts. Today, guilty pleas are bread and butter of the criminal courts. Between 80-90 percent of felony convictions are the result of voluntary guilty pleas. A considerable proportion of these guilty pleas are a result of plea bargaining. Through plea bargaining, the prosecution, defence and the judge are able to reach an accommodation on the dispensation of cases.

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A right to a speedy trial is guaranteed to every U.S citizen by the constitution. It ranks high in the list of civil rights of the American citizen. A normal case would take about three to seven months to conclude. A period of three to twelve months would elapse between arraignment and beginning of trial. Thus the defence and prosecution find plea bargaining the better alternative for a quick disposal of the case. The United States Supreme Court ruled that plea bargaining is constitutional and that it is an important aspect of the criminal procedure. Former chief justice Warren Burger said that “it is an elementary fact, historically and statistically, that the system of courts-the number of judges, prosecutors and of court rooms- has been based on the premise that approximately 90 percent of all defendants will plead guilty, leaving only 10 percent to be tried.

The practice of plea bargaining which originates from the English jurisprudence has received mixed reaction and wide debate. The debate is mainly centred on the legality of the practice because of its potential ability for Human rights violations and being misused.

Plea bargaining is said to have disregarded other aspects of the criminal justice system such as due process of the law which envisages a right to a full trial. This may be termed as due process considerations. If one agrees to plea bargaining, he forfeits some of his constitutional rights especially the right to a full trial. Other rights that are undercut as listed in the criminal procedure code, chapter seventy five, laws of Kenya at section 137 F are the presumption of innocence, examination of witnesses and right to remain silent. This does not provide procedural fairness to the accused.

The other issue is that the society’s interests may not be taken into consideration while sentencing. It is worth noting that neither the prosecution nor the defence have any right to determine the sentence. Such a sentence may have little relationship either to the seriousness of the offence or the deterrence or rehabilitation of the offender.

Sentencing is an issue of major concern in any legal system. This requires looking at the circumstances of the case and that of the accused in order to make an appropriate sentencing. Kenya is one of the many countries that have the adversarial system of law. The other example is the United States of America. Criminal proceedings in the adversarial system are designed to resolve a conflict over guilt or innocence. Plea bargaining focuses on what to do with the accused, that is, what sentence is best suit for him/her. Leniency is taken into account and most aspects of the criminal procedure such as calling of witnesses are not relevant. The morality of such leniency has greatly been criticized especially in capital offences which require the mandatory death sentence.

The judge has little information about the offence or the defendant and can therefore not evaluate the prosecutor’s appraisal of each. The effect of this may be the giving of sentences that do not reflect neither the seriousness of the offence or the objectives of punishment. This makes the work of the judge easier at the expense of the accused and general public. This is said to be a tactical consideration and inherent bias in the legal system.

Plea bargaining is also said to subject the defence attorneys to the temptations of disregarding their clients’ interests. Professor Albert Alschular stated that plea bargaining system is inherently irrational method of administering justice. He says that today’s guilty plea system leads, even able, conscientious attorneys to make decisions that are not really their clients’ interests.

Finally, there is the question of who benefits from plea bargaining. The United States National Advisory Committee on criminal justice, standards and goals was of the view that plea bargaining leads to undue leniency. It also expressed that most plea agreements are due to overcharging of an accused person.

From the foregoing it would be important to study the law and procedure of plea agreements in the country before coming to a conclusion whether it should be maintained or deplored.

Statement Of The Problem

The existing provisions of plea agreement in the criminal procedure code do not guarantee constitutional rights of the accused, societies interests in criminal trials and are only designed to ease the backlog of cases in the courts and work of the judiciary.

Few scholars have also addressed this issue. However, they have only emphasized on the necessity of plea bargaining in the country as opposed to its implications to the accused and the interests of the general public.

Review Of Related Literature

Many scholars across the globe have widely addressed the issue of plea agreements. They have supported it and also criticised it. It will be important to look at their written work in order to come up with a clear reason as to why plea agreement should be accepted or opposed.

Black’s law dictionary defines plea bargaining as ‘the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offence or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.’

George F. Cole defines plea bargaining as the process in which the defendant pleads guilty with an expectation of receiving some consideration from the state. He also addresses the reasons as to why the defence and prosecution would agree to enter into a plea agreement.

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He further states that the certainty and finality of the defendant’s pleading guilty contrasts sharply with the potential risks at trial. During a trial a number of unexpected things can happen which are detrimental to the prosecutor. This is avoided once he enters into the agreement.

One interesting fact that he brings out is that, to improve their bargaining position, some prosecutors overcharge deliberately. This deliberate overcharging puts the defence at a situation where they have no other option than to agree to the offer.

The Criminal Procedure Code also defines a plea agreement and gives the procedure for making plea agreements. It also states the rights of the accused person that are waived upon entering a plea agreement. The effect of the plea agreement is either to reduce the charge to a lesser included offence or to withdraw a charge or stay other charges or a promise not to proceed with other possible charges.

Finally it states that plea agreements can have agreed terms’ relating to compensation and restitution though the Act is silent as to how the courts will enforce compensation and restitution provision in the event of default.

Katz, Lawrence and Bamberger, all scholars of the American legal system have addressed plea bargaining in their book. They state that defence attorneys prepare cases only if trial cannot be avoided. If the professional duty of defence attorneys is limited to representing the best interests of their clients, then it cannot be said that the tactic of waiting out the prosecution is a violation of this duty, because a few defendants are willing to leave the determination of their fate to a trial.

Richard Edward, Joel Kofi and Jeffery Davis state that even if court process is efficient in allocation of punishment, litigation might have little to offer society in ensuring compliance and using courts to achieve outcomes. Litigation might be inefficient to the behaviour of the defendant. They also try to balance fairness and efficiency.

Significance Of The Study

It is aimed at reconciling the need to ease the backlog of cases in the judicial system at the same time guarantee the rights of the accused. The efficiency of the criminal justice system cannot be ignored, so is the protection of the accused person under the law. The research will also address several issues that will need to be reformed in the criminal procedure code regarding plea agreements.

Objective Of The Research

The purpose of the study is to address the possibility of the violation of the rights of the accused person in the criminal procedure code. It will also look at how the criminal procedure code disregards the society’s interests in dealing with an offender.

Research Questions To Be Answered

  1. What are the rights of the accused that are under cut by a plea agreement?

  2. What are the interests of the community and the victim and how are they violated?

  3. What, if any, are the limitations of a plea agreement?

  4. What is the role of the judge in a plea agreement?

  5. Is plea bargaining fair trial or summary justice?

  6. Can plea agreements be justified?

Projected Time Scale

The research project is set to take a period of six months. This is based on that period of time the university’s academic calendar covers.

Research Methodology

The research will be based on secondary material. It will greatly involve library search and internet searches. The internet will provide direct access to electronic journals that will be unavailable in the library as print material.


  1. Alschular, Albert W. Plea bargaining and its history, 13 law and society review 211-221(winter, 1979)

  2. Cole, George F. (1985) The American system of criminal justice4th Ed. Brooks/Cole California

  3. Guidorizi, Douglas D. Should we really ban plea bargaining? The core concerns of plea bargaining critics, 47 E Mory Lj (1998)

  4. Katz et al, Justice is the crime; pre trial delay in felony cases, the press of Case Western University (1972) Cleveland and London

  5. Langbein, John H. Understanding the short history of plea bargaining. Law and society review Vol. 13, no. 2 special issue on plea bargaining pp 261- 272(winter, 1979)

  6. Neubauer D, Americas courts and the criminal justice system 2nd ed (Brooks/Cole 1983) California

  7. O’Hear, Michael (2008) Plea bargain and procedural justice, 42 Ga. L. Rev. 407

  8. Palmer, Jeff. Abolish plea bargaining: An end to same old song and dance, Am. J. Crim. L. 505 (1999)

  9. Schullofer, Stephen J. Is plea bargaining inevitable? 97 Harvard Law review 1037, 1107(1984)

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