What Is Plea Bargaining?

They are certain key decisions that people who are being prosecuted have to make. One of the most important is how you plead. A plea is formal statement made on behalf of an accused person or made by the accused in court in response to the charge made against him (Martin, 2003). A plea can be vertical and horizontal. A vertical plea deal is based on whether the charges are reduced in their seriousness and a horizontal deal plea is their number. In each case where a plea agreement is obtained, there must be a stipulation of factual underpinning for the guilty plea (Palermo et al, 1998).

“ Plea bargaining is an agreement between the prosecution and defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally let it be known that he will minimize the sentence if accused pleads guilty” (Martin, 2003).

Plea bargaining creates a gap between practice and theory in the criminal justice system. With a guilty plea the process shifts the focus from the jury and judge to the prosecutor and defence counsel. It expected by the public for the truth to be discovered through the fact finding trial process. In practice plea bargaining may prevent a public finding of the facts and substitute a behind the scenes cut short plea bargaining process that fashions an offence that may or may not be supported by the evidence and this also determines the variety of penalties available to the court and limits the discussion of the evidence (Palermo et al, 1998).

Plea bargaining is a notion which is well known and generally used and accepted in the United States. This usually consists of a deal being made between the prosecutor and the defence an example of plea bargaining is when the prosecution offers to drop a more serious charge against the accused in exchange for guilty plea of a lesser charge and the prosecutor and defence come to an agreement to resolve the case. This is usually done at various points up until the trial date. However the best bargain can be obtained earlier in the process (Hall Williams, 1982).

In colonial America the idea of trial by jury was accepted willingly as a hallmark of new found liberties. However in the 19th century although people preferred the trial by jury system it was found that this method was losing ground fast. It was discovered in the early century that, the guilty plea was replacing trial by jury more often although guilty plea was being introduced slowly for example in the county of New York in the early 1900 it was found that more than three times as many criminal convictions had resulted from guilty pleas and not by jury trial or judge. A sample of criminal cases which resulted in convictions between 1870 and 1910 reveal the popularity of guilty pleas, a third of all defendants in the Californian county of Alameda we convicted by guilty pleas and a majority of them pled guilty to fewer charges (Friedman, 1993).

Supporters of plea bargain claim that the practise has some necessary advantages for both the prosecution and the defence. The prosecution for example use plea bargaining to speed up trials and to reduce the length of sentence time or sometimes in cases where the evidence is felt to not be strong enough plea bargain is used to induce a guilty plea (Ashworth et al, 2005).

According to Palermo (1998) he states that if all plea bargaining cases where brought to trial then the amount of time, work and expenses for the prosecution would increase greatly. He states also that the defence also benefit from plea bargaining in many ways for example they save a lot of money on defence costs, they benefit from a lighter sentence due to pleading guilty and they also avoid the emotional, stressful and social disruption caused due to the frequent attending of court. It has been argued that plea bargain plea bargaining when used properly can benefit all parties concerned even the public. The use of plea bargaining avoids the risk of the defendant being cleared in court due to the evidence being weak or not enough and due to the rate cases are dealt with when plea bargaining is involved and practised it speeds up cases and saves the money on time consuming trials, freeing and making available criminal justice workers to attend to other cases. Therefore supporters of plea bargaining argue that at times it is in the interest of the public to at list compromise on the possibility of maximum sentences to at list ensure a conviction (Ashworth, 1998).

It is evident that plea bargaining is a widespread practise in most countries. They are many countries who practise plea bargaining as part of their criminal justice system. One of those countries is The Netherlands where their criminal court system is divided in to 19 district courts. According to Gertz (1990) he states that each of these districts there are what they call police courts, where one judge hears the least serious cases and is allowed to impose a maximum sentence of six months. However they are also courts where there is more than one judge and it is in these courts where they try all serious cases, although about 90 percent of cases are heard in the police courts. The criminal justice system of the Netherlands supports a philosophy known as the “opportunity principle”. This principle is a form of plea bargaining in the Netherlands. Under this policy, prosecutors and the police have more discretion when it comes to the processing of cases to achieve the best outcome to best suit the desires of the public, the needs of the defendant and also whilst meeting the ends of justice.

According to Gertz (1990) this practise some how mirrors the American practices, he states in his research that both in theory and practise the opportunity principle was supported by all the people he contacted and it was presumed that this method was a civilized way of conducting the business of the courts.

In the United States plea bargaining is an important element of the criminal justice system. The prosecutors use plea bargaining to negotiate sentencing discounts for those defendants who may wish to avoid a lengthy trial and save the state a large sum of money and also spare their victims or witnesses the stress of giving evidence. They can do this by admitting the crime which they are being charged or agreeing to plead guilty to a lesser one. Plea bargaining has become the norm in the American criminal justice system however in England and Wales it is claimed to be unacceptable and largely non existent. (Gertz, 1990)

In contrast to the American system where plea bargaining is largely recognised and regulated by the courts. In England and Wales there is no institutionalised structure in which plea bargain occurs and to some point the official response is both tricky and inconsistent (Sabor, 1985)

However according to Berlins (2008) the issue of plea bargaining being introduced in England and Wales has been from time to time debated until recently when the attorney general Lady Scotland announced a provisional step into that direction. She was keen to introduce a scheme which she desperately wanted call “plea negotiation” so as to differentiate it from the American version plea bargaining, where there is more discounts on offer. According to Berlins (2008) Lady Scotland proposed that fraudsters would have the opportunity to negotiate lesser sentences if they admit their guilt. Prosecutors would have permission to negotiate with defence lawyers an agreement on the fraudster’s level of responsibility and also discuss the range of sentences in return for a guilty plea. The difference is that the agreement would then be presented to a judge for approval. However the judge is not bound to accept the agreement he could either insist on going to trial or propose they negotiate an even tough sentence if he or she feels that the sentence negotiated is not adequate enough to fit the crime.

The word justice is defined as “A moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs” (Martins, 2003). English law closely identifies with justice and also the word justice frequently used in the legal system an example is the Youth justice system and the Justice of the peace and many more. In order to achieve justice they are so many factors that contribute to crime that need to be considered, these are educational, social moral and psychological and this can be difficult to get to (Palermo et al, 1998).

Berlins (2008) in his article stated that plea bargaining has many flaws and these flaws bring into light a number of justice problems. Berlins highlights that an innocent person maybe forced into pleading guilty and agreeing to a less harsh sentence. He points out that at times this is happens because the accused is fearful that he/she may be convicted by a jury and end up facing an even worse off punishment than offered. However in other cases it maybe because the accused just wants to avoid having the cloud of the up coming trial hanging over them and so they decide to negotiate and plead to a lesser charge even if they are innocent (Berlins, 2008).

The general public gets angry because criminals who are a danger to society are getting away with crime due the fact that they have struck a plea bargain deal with the prosecutor which is unfair especially with serious crimes such as murder where the prosecution would for example agree to a plea of guilty to accidental killing when in fact the accused will have committed murder. The prosecutor would offer such a deal rather run the risk of a jury acquitting the accused altogether (Berlins, 2008).

Generally plea bargaining involves processes of informal negotiation between the prosecutor and the defence lawyer with the main aim of reaching a settlement out of court. Research shows that plea bargaining has become a widely spread practise (Herzog, 2004). Nasheri (1998) indicated in his research that a majority of criminal convictions are usually due to the fact that both parties involved have agreed to a negotiated plea agreement rather than going through a trial. However they are many justice problems which have been discovered in light of research done in many countries such as for example Canada, America and many others. Herzog (2004) stated that it was found that a majority of the public in many of these countries held the notion of plea bargaining in very low esteem.

According to Cohen et al (1989) in his Canadian study on the views of public attitudes towards a number of plea bargaining arrangements which where used and applied to determine a robbery case. It was found that 80% of the sample used expressed that they lacked support of these plea bargaining processes. Many reasons where given as to why the general public had a negative attitude to wards the use of plea bargaining. Two explanations where given first it was because the public favoured a more punitive policy when it came handling criminals and the second was that it was explained that the public viewed that the use of plea bargain as being too lenient on crime. It is further explained that due to the public viewing plea bargaining as being “soft on crime” they believe that this practise is allowing offenders to receive a more lenient punishment than they would have received had the case gone to trial and the prosecution had proved the accused guilt (Cullen et al, 2000).

Cohen (1989) state that the public’s suspicion is increased by the way plea bargaining is conducted in such a secretive and covert manner hence why the public have reduced confidence in plea bargaining. Reservations regarding plea bargaining are not only restricted to the public, it is perceived by supporters of plea bargaining that this practise is far from being ideal in terms of administrating justice ( Emmelman, 1996). However it has been identified that it is difficult to function without it have consistently been ineffective (McCoy, 1993).

According to McCoy (1993) it was stated that arguments such as these have been used to sometimes explain why plea bargain appears to be unpopular. He goes on to explain that because plea bargain is not very visible in the sense that most of the negotiations are done behind closed doors usually in the absence of the judge and even the defendant at times. Plea bargain may be misinterpreted by the public, which usually tend to believe that benefits of the parties involved are usually at the expense of larger considerations of public justice. Herzog (2004) suggests that if some concerns on prosecutorial where put forward during plea bargaining negotiations this could represent clear advantages for the public, then it can be theorized that public disclosure and publicity of such concerns will also increase public support of plea bargaining to some extent.

The main justice problems with plea bargaining in the UK is the question which every one concerned (the public) would like to have answered and this is if this practise is fully introduced will plea bargain be offered to offenders of other serious crimes such as terrorism and we know that terrorism offences tend to have many complications and the trials usually cost a lot of money and take long causing many delays to other cases. It is noted that if plea bargain where to be introduced to all crimes it would ease the work load and save costs (Berlins, 2008).

In conclusion Plea bargaining is seen by the general public as promoting injustice, because punishment is not considered due to the seriousness of crime but due to the capacity of the offender to be able to negotiate and secure a lesser charge with the prosecution (Herzog, 2004). Society perceives plea bargain as sacrificing quality for quantity and justice for administrative effectiveness. Society is not able to accept that the individuals who are connected with serious crimes such as terrorism getting away with a lighter sentences jus because they have pled guilty to the charges put forward.