Plea bargaining

Introducing a System of Plea Bargaining

For plea bargaining to be effective, it is absolutely imperative that the judicial system and its players operate with integrity. A judicial system plagued with corrupt practices cannot support such a scheme without introducing the consequential disadvantages that would inevitably transcend any of the potential benefits. Accordingly, any state considering the introduction of a plea-bargaining system must conduct a self-analysis and determine whether it could sustain such an initiative. The following chart provides some considerations as a starting point in this process.

Advantages

  • contributes to the efficiency of the criminal justice system
  • reduces the cost of the operation of the criminal justice system
  • reduces prosecutors' workload
  • provides an element of certainty for the parties
  • guilty plea is a mitigating factor on sentence
  • may dispense a traumatised witness from testifying
  • may avoid disrupting the professional and personal life of a witness

Criticisms

  • leads to manipulation of the judicial system and compromises legal and constitutional principles
  • encourages abuses of power by prosecutors and judges
  • creates a situation in which defence counsel may be tempted to give precedence to his own interests rather than to the best interests of the accused
  • results in offenders receiving lenient sentences
  • increases the risk of wrongful conviction

Safeguards/Principles

  • complete and timely disclosure of prosecution's case
  • competent and ethical defence counsel
  • prosecutor to initiate plea discussions and communicate best offer to accused early in the process
  • comprehensive knowledge of principles of sentencing and appropriate ranges of sentences by court, prosecutor and defence
  • prosecutor to maintain complete and accurate record of discussions to promote consistency and transparency
  • openness : prosecutor to solicit views of victim and investigative agency and ensure their understanding of the agreement ; prosecutor to formally advise the court of the agreement reached
  • fairness : agreements to be honoured by the prosecutor
  • judicial independence and impartiality

March 2004

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