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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