Plea bargaining

PLEA- BARGAINING

FILMA VARGHESE ALTACIT GLOBAL

PLEA - BARGAINING

‘Plea-Bargaining’ can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

The concept of plea-bargaining is an alternative remedy to the long and tortuous process of trial in courts which has been introduced to ensure speedy disposal of cases and to reduce congestion in prisons.

It is also known as pre-trial settlement, plea discussions, plea negotiations, resolution discussion, mutually satisfactory disposition etc.

HISTORY OF PLEA-BARGAINING

o Plea-bargaining emerged and has gained acceptance in the legal community only in recent decades.

o One of the earliest indications of plea-bargaining was a 1485 English statute, which authorized prosecutions for unlawful hunting before the justice of the peace. The statute provided that if a defendant confessed his crime then he was convicted of a summary offence, but if the defendant denied his guilt, he was prosecuted as a felon. However, many of the courts disapproved of the practice of plea-bargaining because of its infringement on the defendant's rights.

o The dominance of plea-bargaining was not actually realized until the 1920s, when a number of states and cities conducted surveys of their criminal justice system. Following the 1920s, the issue of plea-bargaining did not re-emerge until the 1960s. The re-emergence of plea-bargaining was due to the 'crime wave' of the 1960s produced by the World War II and the increase in drug usage and other cases of victimless crime.

o The concept of plea-bargaining is used in the American Judiciary in the 19th century itself. 1990: Facing serious federal charges of insider trading,

Michael Milken pleads to lesser charges of securities fraud; soon after, his 10-year sentence is reduced to 2 years.

1931: Al Capone brags about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then declares that he isn't bound by the bargain, and Capone does seven and a half years in Alcatraz.

1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin Luther King Jr. and gets 99 years.

1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charge of failing to report income; he gets three years' probation and a $10,000 fine (roughly one-third of the amount at issue).

In 1970, the constitutional validity of plea-bargaining was upheld in Brady v. United States, 379 US 742 (1970) where it was stated that it was not unconstitutional to extend a benefit to an accused that in turn extends a benefit to the State.

One year later, in Santobello v. New York, 404 US 257 the United States Supreme Court formally accepted that plea-bargaining was essential for the administration of justice and when properly managed, was to be encouraged.

Plea-bargaining now dominates the day-to-day operation of the American criminal justice system; about 95 per cent of convictions are obtained by way of a guilty plea.

PLEA-BARGAINING IN

INDIA MALIMATH COMMITTEEo The Law Commission of India - 142nd, 154th and 177th reports.o 142nd Report - Abnormal delays in the disposal of criminal trials and appealso 154th Report - First recommended the introduction of ‘plea- bargaining’o 177th Report - In 2001 also sought to incorporate the concept of plea-

bargainingo These recommendations of the Law Commissions finally found a support in

Malimath Committee Report.o The NDA government formed a committee, headed by the former Chief

Justice of the Karnataka and Kerala High Courts, Justice V. S. Malimath.o The Malimath Committee recommended that a system of plea-bargaining be

introduced in the Indian Criminal Justice System.o The Criminal Law (Amendment) Bill, 2003.o However, those provisions failed to come through and were reintroduced

with slight changes through the Criminal Law (Amendment) Bill, 2005.o Finally incorporated into the Code of Criminal Procedure, 1973 as Chapter

XXI-A, Section 265 A to 265 L through the Section 4 of Criminal Law (Amendment) Act, 2005, which came into effect from July 5, 2006.

APPLICABILITY OF PLEA-BARGAINING

o Section 265A of Chapter XXIA of the Criminal Procedure Code deals with applicability of the Plea bargaining.

o Benefit of Plea-bargaining can be extended in two circumstances. One is, if a report is forwarded by a Station House Officer of a

Police Station after the completion of investigation to the Magistrate.

The other is, if the Magistrate has taken cognizance of an offence on a complaint under S. 190 (1) followed by examination of a complainant and witness under S. 200 or S. 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under S. 190 (1) of the Code.

o Plea-bargaining can take effect only when the consent of all three parties, that is, victim, prosecutor, and judge has been obtained.

MINIMUM REQUIREMENTS OF PLEA-BARGAINING

To ensure fair justice, plea-bargaining must encompass the following

minimum requirements:

1. The hearing must take place in court.2. The court must satisfy itself that the accused is pleading

guilty voluntarily and knowingly. Brady v. United States, 379 US 742 (1970).

3. The Brady court also determined that a plea must be intelligently made.

4. A court must determine that there is a factual basis for entering the guilty plea.

5. Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.

LIMITATIONS ATTACHED IN INDIA

o Offences, which is punishable to death, life imprisonment or of imprisonment more than 7 years.

o Offences which affects the socio- economic conditions (like offences under Food Adulteration Act etc) of the country .

o Section 265L Cr.P.C, bars the provisions of plea-bargaining to any Juvenile or Child as defined under Juvenile Justice (Care and Protection of Children) Act, 2000.

o Crimes committed against a woman or a child below the age of 14 years.

o Habitual offenders.

TYPES OF PLEA-BARGAINING

1. Charge Bargaining: This can be further classified into multiple charge and unique charge. Multiple charges - Some charges are dropped in return for a plea

guilty to one of them. Unique charge - A serious charge is dropped in exchange for a plea of

guilty to a less serious charge. 2. Fact Bargaining: In fact bargaining, a prosecutor agrees not to contest

an accused version of the facts or agrees not to reveal aggravating factual circumstances to the court. There is an agreement for a selective presentation of facts in return for a plea of guilty.

3. Specific Fact Bargaining: In this type of bargaining there is an acceptance of sanction without pleading guilty which is known as the nolo contendere pleas. Another category of pleas in this category is known as the Alford pleas where there is acceptance of sanction but the defendant asserts innocence.

4. Sentence Bargaining: It happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty.

Sentence bargaining — is applicable to the judicial system in India.

PROCEDURE AND APPEAL

o File an application any time before the commencement of the trial.o Filed by the accused in the court where the trial is pending.o Accompanied by an affidavit stating that the accused has "voluntarily" opted

for plea-bargaining and that he had not previously been convicted on the same charge.

o The court, examines the accused in camera to ascertain whether the application has been filed voluntarily.

o Issuance of notice to the Public Prosecutor or the complainant.o The negotiation of such a mutually acceptable settlement is left to the free

will of the prosecution (including the victim) and the accused.o If a settlement is reached, the court can award compensation based on it to

the victim and then hear the parties on the issue of punishment.o The court may release the accused on probation if the law allows for it; if a

minimum sentence is provided for the offence committed, the accused may be sentenced to half of such minimum punishment; if the offence committed does not fall within the scope of the above, then the accused may be sentenced to one-fourth of the punishment provided or extendable for such offence.

o The accused may also avail of the benefit under Section 428 of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in plea-bargained settlements.

o The court must deliver the judgment in open court according to the terms of the mutually agreed disposition and the formula prescribed for sentencing including victim compensation.

o If the court rejects the plea-agreement, it must notify the defendant that it is doing so and allow the defendant to withdraw his plea.

o The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea-bargaining.

o This judgment is final and no appeal lies apart from a writ petition to the State High Court under Articles 226 and 227 of the Constitution or a special leave petition to the Supreme Court under Article 136 of the Constitution.

ADVANTAGES OF PLEA-BARGAINING

o Back logging in courts will be reduced and justice can be delivered quickly and efficiently.

o Bargaining helps the defendant by deciding the case earlier avoids uncertainties in trial.

o The Judge exerts supervisory control. o The Act ensures that such an opportunity will not be available to habitual

offenders.o The Act does not provide for an ordinary appeal from the judgment in

such a case is a step towards expediting the disposal of cases.o Plea-bargaining has surged because there are more crimes and there are

more petty offences which now are criminalized (offenses such as failing to pay a bus fare, being an unlicensed vendor, petty burglary, shoplifting, etc.). Since going to trial is more costly and time consuming, plea-bargains are a practical solution for the criminal justice system.

o Avoids costly trials, eliminates appeals, saves victims from the trauma of trial and relieves the prosecutor of burden of proof beyond reasonable doubt.

DRAWBACKS OF PLEA-BARGAINING

Some of the major drawbacks of the concept of plea-bargaining as are recognized in India:

o Against the basic principles of criminal justice systems o Plea-bargaining violates not only the procedure prescribed by law, but also the

constitutional rights.o Detrimental to the innocent defendant. o Involving the police in plea-bargaining process would invite coercion.o Involving the victim in plea-bargaining process would invite corruption.o The accused may go escape with less punishment.o There is an apprehension that the wrong doer may agree to wrong compromise to

escape the prolonged and expensive trial.o Plea-bargain may depend strongly on the negotiating skills.o They encourage guilty pleas in weak cases, but discourage the same in stronger

cases.o If the plead guilty application of the accused is rejected then the accused would

face great hardship to prove himself innocent.o It takes away the right to appeal.o The remedy under Articles 226 and 227 of the Constitution can be made use of; it

is unclear whether the victim of the offence can utilize this remedy.

PLEA-BARGAINING IN OTHER JURISDICTIONS

IN UNITED STATESo Plea-bargaining is a significant part of the criminal justice system in US.o Different states and jurisdictions have different rules.o The Federal Sentencing Guidelines are followed in federal cases and have

been created to ensure a standard of uniformity in all cases decided in the federal courts.

o The role of the judge under plea-bargaining in the U.S. is relatively insignificant and is limited to the observance of constitutional procedures.

o The charge and the sentence are open to bargain well before the commencement of the trial.

IN COMMON LAW JURISDICTIONSo In England and Wales, Victoria, Australia, plea-bargaining is permitted only to

the extent that the prosecutors and the defenses can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder.

o No bargaining occurs on the penalty and the courts take a decision independently.

IN PAKISTAN

o Plea-bargaining in Pakistan was introduced by the National Accountability Ordinance, 1999, an anti-corruption law.

o The accused applies for it accepting his guilt and offers to return the proceeds of corruption as determined by the investigators/prosecutors.

o After endorsement by the chairman of the National Accountability Bureau, the request is presented before a court.

o In case the court accepts the request for plea-bargain, the accused stands convicted but is not sentenced if in trial, nor does he undergo a sentence previously pronounced by a lower court if in appeal.

o The accused is disqualified from taking part in elections, holding public office and obtaining a bank loan, besides being dismissed from service if he is a government officer.

JUDICIAL PRONOUNCEMENTS ON PLEA-BARGAINING

The Supreme Court of India has examined the concept of plea-bargaining in the case

of Kasambhai v. State of Gujarat and Murlidhar Meghraj Loyat v. Stateof Maharashtra (AIR 1976 SC 19291976 Cri LJ 1527).

o In Kasambhai’s case, the Supreme Court resisted a plea of guilt based on plea-bargaining, as it would be opposed to public policy, if an accused were to be convicted by inducing him to plead guilty.

o In the case of Murlidhar Meghraj Loyat v. State of Maharashtra, the Supreme Court observed as under: “In civil cases we find compromises actually encouraged as a more satisfactory method of settling disputes between individuals than an actual trial. However, if the dispute finds itself in the field of criminal law, "Law Enforcement" repudiates the idea of compromise as immoral. The "State" can never compromise. It must enforce the law. "Therefore open methods of compromise are impossible.”

Sakharam Bandekar’s case - For the first time in Mumbai, an application for plea-bargaining was made before a sessions court when a former Reserve Bank of India clerk—accused in a cheating case—sought a lesser punishment in return for confessing to his crime.

The court directed the prosecution to file its reply. The CBI, while opposing the application, said, "The accused is facing serious charges and plea-bargaining should not be allowed in such cases." It continued, "Corruption is a serious disease like cancer. It is so severe that it maligns the quality of the country, leading to disastrous consequences. Plea-bargaining may please everyone except the distant victims and the silent society." Based on these submissions, the court rejected Bandekar's application. Although Bandekar's plea was not accepted, the case is an indicator to an emerging legal trend.

The Supreme Court has also time and again blasted the concept of plea-bargaining saying that negotiation in criminal cases is not permissible. More recently in State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that it is settled law that on the basis of plea-bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented. The court further held in the same case that, mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.

In a significant case of copyright infringement under the concept of plea- bargaining, the Indian Music Industry (IMI) won a compensation amount of Rs 12 lakhs.

IMI asked a compensation of Rs 100 per CD, but the accused moved another application admitting his guilt and settling for negotiation. So IMI agreed to settle the case at Rs 60 per CD seized. When the applications were presented at the specialized intellectual property court in Delhi for hearing, the matter was negotiated with the company's owner and it was settled at Rs 12 lakhs (Two lakh on behalf of the company - Siddartha Optical and 10 lakhs on the owner's behalf). Besides, the court ordered the company to pay Rs 2 lakhs to the state for violating the copyright act. This is India's biggest plea-bargaining case as no other victim has ever been paid Rs 12 lakhs."

CONCLUSION

Plea-bargaining has been introduced as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. The nature and extent of plea-bargaining in India indicates that plea-bargaining cannot simply be transplanted from the United States. There is thus, no reason to believe that the practice will achieve the same scale and magnitude of success as in the United States. Further, the scheme incorporated by the Criminal Law (Amendment) Act, 2005, is grossly inadequate because many factors crucial to the functioning of such a system in India have not been taken into consideration.

Plea bargaining

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