Victim Participation in the Plea Negotiation Process in canada

4. Federal Rule 11: A Viable Legal Framework For The Regulation Of Plea Bargaining?

4.1 The Legitimization of Plea Bargaining in the United States

In the case of Santobello v. New York (1971), the Supreme Court of the United States affirmed the constitutionality of plea bargaining and actually encouraged prosecutors and defence counsel to participate in the practice because of the significant benefits that may be derived from it. In Blackledge v. Allison (1977), the Supreme Court identified these benefits as including the following:

The defendant avoids extended pretrial incarceration and anxieties and uncertainties of trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks imposed by those charged with criminal offenses who are at large on bail while awaiting criminal proceedings.

Although the empirical evidence is somewhat scant, it is frequently asserted that at least 90% of all criminal cases in the United States are decided on the basis of guilty pleas, many of which are the result of a plea bargain (Herman, 1997, p. 1; Taha, 2001, p. 252)). For instance, in 1999, 94.6% of all criminal cases in the federal courts were decided on the basis of guilty pleas (U.S. Sentencing Commission, 1999 Datafile, OPAFY99, Table 3):

Table 3 - Guilty Plea and Trial Rates Fiscal Years 1995-1999

Guilty Plea and Trial Rates Fiscal Years 1995-1999

Table 3 description

Table 3 presents the proportion of criminal cases in the federal court that were decided on basis of guilty pleas and trial for the period of 1995 to 1999. The rates are stable, guilty pleas representing more than 90% of criminal cases each year and trial around 10%. In 1999, the rate of guilty pleas was slightly higher than the years before (around 95%) while the rate of trial slightly decreased over the year (representing around 5% in 1999).

However, judicial approbation of plea bargaining in the United States is predicated upon the assumption that it must be properly regulated by the courts (Sigman, 1999, p. 1320–1). Judicial regulation necessarily implies that judges retain the discretion whether or not to accept – or reject – a plea bargain (Welling, 1987, p. 329). Furthermore, judicial scrutiny of plea bargaining ensures that, if the court approves a negotiated plea, then the government is placed under a duty to fulfill the promises that were made by the prosecutor in order to induce the accused to plead guilty (Pan & Kaiser, 2001, p. 1399).

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