Victim Participation in the Plea Negotiation Process in canada

4. Federal Rule 11: A Viable Legal Framework For The Regulation Of Plea Bargaining? (cont'd)

4.5 Federal Rule 11: Tentative Conclusions

There is little doubt that Federal Rule 11 has created a legal mechanism that permits judicial regulation of plea bargaining, while simultaneously permitting the practice to flourish. Under Rule 11, judges are not permitted to engage in the actual process of plea negotiations: instead, they have the ultimate discretionary power to accept or reject a plea agreement fashioned by the government and defence lawyers. If applied conscientiously, the provisions of Rule 11 ought to ensure that guilty pleas are entered voluntarily and with full knowledge of the consequences. Furthermore, the use of independent pre–sentence reports limits the extent to which the prosecution and defence may distort or withhold information that is necessary for the trial court's full understanding of the considerations that are relevant to the making of the decision whether or not to accept a plea agreement.

However, it is manifest that Federal Rule 11 may only be evaluated in conjunction with the administration by the federal courts of the United States Sentencing Guidelines. The Guidelines unquestionably limit the scope of judicial sentencing discretion and have significantly reduced some of the incentives that may be offered to an accused person in order to induce them to plead guilty. Although there is still sentencing disparity between individual judges and between different judicial districts, it appears that – overall – there has been a reduction in sentencing disparity in the federal courts since the advent of the Sentencing Guidelines. Although considerably more empirical research needs to be undertaken in this area, it appears that the Sentencing Guidelines have not caused any great variation in the rates of plea bargaining in the federal court system. However, there is some initial empirical evidence that the nature of plea bargaining may – to some extent – be changing and that prosecutors and defence lawyers have started to develop strategies for avoiding the full impact of the Sentencing Guidelines on accused persons who plead guilty. The evolution of the practice of precharging plea bargaining raises many concerns since it is exceptionally difficult to detect and, therefore, profoundly resistant to judicial regulation.

Federal Rule 11 makes no provision for the victim to participate in the formal hearing that is conducted by the trial judge when receiving a plea of guilty by the accused. In the federal court system, victims' voices may be heard directly through the reading of a victim impact statement or indirectly through the vehicle of the pre–sentence report: however, their voices remain silent at the Rule 11 hearing. Arguably, permitting victims to participate in such a hearing would render it more difficult for prosecutors and defence lawyers to undermine the United States Sentencing Guidelines by engaging in the secret practice of precharging plea bargaining.

In short, Federal Rule 11 has created an effective, and well–tried, model for the independent judicial regulation of plea bargaining in the federal courts. However, it does not make any provision for the inclusion of victims in the judicial decision–making process that determines whether or not a particular plea agreement should be accepted or rejected. In this sense, the judicial regulation of the process of plea bargaining in the federal court system lags behind the equivalent legislation in many of the individual states.