In plea bargaining, who really gets the bargain?

Plea bargaining in our criminal justice system receives far more negative than positive attention. AAP/Dave Hunt

Plea bargaining consistently attracts more attention than almost any other aspect of the criminal justice system. Recently, it has received more attention than usual after US District Court judge Jed Rakoff joined the chorus of concerns about the dangers of “secret” plea bargaining.

However, Rakoff was not warning about abuse of the process by defendants: he was warning about the abuse of defendants through the process.

Rakoff argued that prosecutors could use plea bargaining to exert pressure on defendants by inflating charges, lying about or exaggerating evidence, and overstating possible sentences. With no media or judicial oversight, and in some cases no legal representation, prosecutors could coerce or induce pleas from defendants to lesser charges that were still in excess of what could be proved against them in court.

Explaining plea bargaining

Plea bargaining is negotiations between the prosecution and the defence that result in a criminal defendant pleading guilty to fewer or lesser offences than they originally faced, in exchange for the dropping of the original charges.

It looks like a “win-win” situation. The prosecution secures a conviction, avoids the enormous public expense of trial, and saves victims of crime the trauma of appearing in court. Defendants take responsibility for their actions and receive the reduced sentence that goes with a guilty plea.

However, plea bargaining receives far more negative than positive attention. Since “tough on crime” politics took root in the US in 1960s, and in Australia in the following decades, there has been political and public opposition to criminals and prosecutors doing behind-the-scenes deals instead of going to trial.

Plea bargains don’t happen in court, are not subject to appeal or review by judges, are not guided by legislation, and are not reported. The lack of transparency about the process has created the fear that criminals use the system to get away with serious crimes and end up with light penalties for minor offences.

Why plea bargaining leads to outrage

Plea bargaining typically arouses public outrage where murder charges result in convictions for manslaughter, or attempted murder charges result in cause serious harm offences.

The assumption behind the outrage is that in every case the original, higher charge was correct, so the defendant has scored a “bargain” by pleading guilty to a lesser charge. This reasoning is faulty in two ways.

First, it is impossible that the original charge was correct in every case of a plea bargain. The original charge is made by the police, who are not legally trained. They might “overcharge” by choosing an offence that is not the right fit for the facts of the case.

Alternatively, police might choose the offence that is correct on the facts at the time of the offending, but later investigations might produce less or different evidence than expected. Witnesses might also turn out to be unreliable, or evidence was obtained in a manner that means it is unlikely to be admitted in court.

It is a core function of the Office of the Director of Public Prosecutions to review charges laid by police and amend them as appropriate. The plea may not be a bargain at all, but rather be absolutely appropriate given the facts, the evidence and the requirement to prove offences beyond reasonable doubt if they go to trial.

Also, the idea that every criminal defendant who reaches a plea agreement is extracting a bargain from the prosecutors is curious. The avoidance of trial is desirable for prosecutors but, equally, they have the resources of the state behind them specifically to bring criminal prosecutions and have no motivation to make inappropriate compromises.

In making plea deals, prosecutors are negotiating with an individual, often in custody, often facing a prison sentence and sometimes without a lawyer. To suggest that defendants are in control in this situation does not reflect the reality of most criminal defendants before and during trial.

Long history of controversy

The irony of the controversy over Rakoff’s comments is that his views are not new. They are simply counter to current thinking. Two hundred years ago, Thomas Jefferson famously referred to the criminal trial as:

… the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.

Jefferson’s commitment that public ventilation of criminal matters through trial in open court was necessary for the protection of the defendant rights resonated through later centuries. However, under the influence of tough on crime rhetoric, this view morphed into the strange fear that defendants are going to exploit the power of the state from their prison cells.

Rakoff’s perspective offers a timely reminder about where the power has always and continues to lie in criminal prosecution.

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