Plea bargain
A plea bargain, also known as a plea agreement or plea deal, is a legal arrangement in criminal law where the defendant agrees to plead guilty or no contest to a charge in exchange for concessions from the prosecutor. These concessions can include a reduction in the severity of the charges, the dismissal of some charges, or a more lenient sentencing recommendation. Plea bargaining serves as a mechanism to expedite the resolution of criminal cases, allowing both the prosecution and the defense to avoid the time, expense, and uncertainty of a trial. It is a prevalent practice in the United States, where it resolves the vast majority of criminal cases, and has been adopted in various forms in other legal systems worldwide.
Plea bargains can take different forms, such as charge bargaining, where a defendant pleads guilty to a lesser offense, or sentence bargaining, where the expected sentence is agreed upon before a guilty plea. In addition, count bargaining involves pleading guilty to a subset of multiple charges. While plea bargaining can reduce the burden on courts and offer defendants a chance for lighter sentences, it has been subject to criticism. Detractors argue that it may encourage defendants, including the innocent, to plead guilty out of fear of harsher penalties if convicted at trial. Proponents, however, emphasize its role in conserving judicial resources and providing a degree of certainty for all parties involved.
The practice of plea bargaining has spread globally across common law jurisdictions, like the US and UK, but varies significantly based on local legal traditions and regulations. In civil law jurisdictions, plea bargaining is generally not permitted or is highly regulated.
In some jurisdictions where plea bargaining is allowed, the judiciary retains the final authority to approve or reject plea agreements, ensuring that any proposed sentence aligns with public interest and justice standards. The use of plea bargains remains controversial.
Advantages
Plea bargaining has been defended as a voluntary exchange that leaves both parties better off, in that defendants have many procedural and substantive rights, including a right to trial and to appeal a guilty verdict. By pleading guilty, defendants waive those rights in exchange for a commitment from the prosecutor, such as a reduced charge or more favorable sentence. For a defendant who believes that conviction is almost certain, a discount to the sentence is more useful than an unlikely chance of acquittal. The prosecutor secures a conviction while avoiding the need to commit time and resources to trial preparation and a possible trial. Plea bargaining similarly helps preserve money and resources for the court in which the prosecution occurs. It also means that victims and witnesses do not have to testify at the trial, which in some cases may be traumatic.Disadvantages and issues
Scope for coercive manipulation
Plea bargaining is criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endanger the correct legal outcome.Author Martin Yant discusses the use of coercion in plea bargaining:
This tactic is prohibited in some other countries—for example in the United Kingdom the prosecutor's code states:
although it adds that in some kinds of complex cases such as major fraud trials:
John H. Langbein argues that the modern American system of plea bargaining is comparable to the medieval European system of judicial torture:
Consequences for innocent accused
Theoretical work based on the prisoner's dilemma is one reason that, in many countries, plea bargaining is forbidden. Often, precisely the prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty: here, the innocent one has no incentive to confess, while the guilty one has a strong incentive to confess and give testimony against the innocent.A 2009 study by the European Association of Law and Economics observed that innocent defendants are consistently more likely than guilty defendants to reject otherwise-favorable pleas proposals, even when theoretically disadvantageous to do so, because of perceived unfairness, and would do so even if the expected sanction would be worse if they proceeded to trial. The study concluded that "his somewhat counterintuitive 'cost of innocence', where the preferences of innocents lead them collectively to fare worse than their guilty counterparts, is further increased by the practice of imposing much harsher sentences at trial on defendants who contest the charges. This 'trial penalty' seeks to facilitate guilty pleas by guilty defendants disproportionately, collectively, penalizes innocents, who reject on fairness grounds some offers their guilty counterparts accept."
The extent to which innocent people will accept a plea bargain and plead guilty is contentious and has been subjected to considerable research. Much research has focused on the relatively few actual cases where innocence was subsequently proven, such as successful appeals for murder and rape based upon DNA evidence, which tend to be atypical of trials as a whole. Other studies have focused on presenting hypothetical situations to subjects and asking what choice they would make. More recently some studies have attempted to examine actual reactions of innocent persons generally, when faced with actual plea bargain decisions. A study by Dervan and Edkins attempted to recreate a real-life controlled plea bargain situation, rather than merely asking theoretical responses to a theoretical situation—a common approach in previous research. It placed subjects in a situation where an accusation of academic fraud could be made, of which some subjects were in fact by design actually guilty, and some were innocent but faced seemingly strong evidence of guilt and no verifiable proof of innocence. Each subject was presented with the evidence of guilt and offered a choice between facing an academic ethics board and potentially a heavy penalty in terms of extra courses and other forfeits, or admitting guilt and accepting a lighter "sentence". The study found that as expected from court statistics, around 90% of accused subjects who were actually guilty chose to take the plea-bargain and plead guilty. It also found that around 56% of subjects who were actually innocent also take up the plea-bargain and plead guilty, for reasons including avoiding formal quasi-legal processes, uncertainty, possibility of greater harm to personal future plans, or deprivation of home environment due to remedial courses. The authors stated:
More pressure to plea bargain may be applied in weak cases than strong cases. Prosecutors tend to be strongly motivated by conviction rates, and "there are many indications that prosecutors are willing to go a long way to avoid losing cases, when prosecutors decide to proceed with such weak cases they are often willing to go a long way to assure that a plea bargain is struck". Prosecutors often have great power to procure a desired level of incentive, as they select the charges to be presented. For this reason,
Another situation in which an innocent defendant may plead guilty is in the case of a defendant who cannot raise money for a bail bond, and who is being held in custody in a jail or detention facility. Because it may take months, or even years, for criminal cases to come to trial or even indictment in some jurisdictions, an innocent defendant who is offered a plea bargain that includes a sentence of less time than they would otherwise spend in jail awaiting an indictment or a trial may choose to accept the plea arrangement and plead guilty.
Misalignment of goals and incentives
s may arise in plea bargaining as, although the prosecutor represents the people and the defense attorney represents the defendant, these agents' goals may not be congruent with those of their principles. For example, prosecutors and defense attorneys may seek to maintain good relations with one another, creating a potential conflict with the parties they represent. A defense attorney may receive a flat fee for representing a client, or may not receive additional money for taking a case to trial, creating an incentive for the defense attorney to settle a case to increase profits or to avoid a financial loss.A prosecutor may want to maintain a high conviction rate or avoid a losing high-profile trials, creating the potential that they will enter into a plea bargain that furthers their interests but reduces the potential of the prosecution and sentence to deter crime. Prosecutors may also make charging decisions that significantly affect a defendant's sentence, and may file charges or offer plea deals that cause even an innocent defendant to consider or accept a plea bargain.
Issues related to cost of justice
Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning a case and sending a defendant away to prison for 10 years, they may make a plea agreement for a sentence of one year; but if plea bargaining is unavailable, a prosecutor may drop the case completely.Usage in common law countries
Canada
In Canada, the courts always have the final say with regard to sentencing. Nevertheless, plea bargaining has become an accepted part of the criminal justice system although judges and Crown attorneys are often reluctant to refer to it as such. In most Canadian criminal proceedings, the Crown has the ability to recommend a lighter sentence than it would seek following a guilty verdict in exchange for a guilty plea.Like other common law jurisdictions, the Crown can also agree to withdraw some charges against the defendant in exchange for a guilty plea. This has become standard procedure for certain offences such as impaired driving. In the case of hybrid offences, the Crown must make a binding decision as to whether to proceed summarily or by indictment prior to the defendant making their plea. If the Crown elects to proceed summarily and the defendant then pleads not guilty, the Crown cannot change its election. Therefore, the Crown is not in a position to offer to proceed summarily in exchange for a guilty plea.
Canadian judges are not bound by the Crown's sentencing recommendations and could impose harsher penalties. Therefore, the Crown and the defence will often make a joint submission with respect to sentencing. While a joint submission can entail both the Crown and defence recommending exactly the same disposition of a case, this is not common except in cases that are sufficiently minor that the Crown is willing to recommend a discharge. In more serious cases, a joint submission normally call for a sentence within relatively narrow range, with the Crown arguing for a sentence at the upper end of the range and the defence arguing for a sentence at the lower end, so as to maintain the visibility of the judge's ability to exercise discretion.
Judges are not bound to impose a sentence within the range of a joint submission, and a judge's disregard for a joint submission is not in itself grounds for the sentence to be altered on appeal. However, if a judge routinely disregards joint submissions, that judge would compromise the ability of the Crown to offer meaningful incentives for defendants to plead guilty. Defence lawyers would become reluctant to enter into joint submissions if they were thought to be of little value with a particular judge, which would thus result in otherwise avoidable trials. For these reasons, Canadian judges will normally impose a sentence within the range of any joint submission.
Following a Supreme Court of Canada ruling that imposes strict time limits on the resolution of criminal cases, several provinces have initiated and intensified measures intended to maximize the number of minor criminal cases resolved by a plea bargain.
Largely particular to the Canadian justice system is that further negotiations concerning the final disposition of a criminal case may also arise even after a sentence has been passed. This is because in Canada the Crown has a very broad right to appeal acquittals, and also a right to appeal for harsher sentences except in cases where the sentence imposed was maximum allowed. Therefore, in Canada, after sentencing the defence sometimes has an incentive to try to persuade the Crown to not appeal a case, in exchange for the defence also declining to appeal. While, strictly speaking, this is not plea bargaining, it is done for largely the same reasons.