Plea bargaining: Escape of the Guilty or Tyranny of Good Intentions?

Jan 27, 2024 Letters

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Dear Editor,

I note with keen interest the eagerness within CARICOM to pursue the use of plea bargaining in the criminal justice system. Based on an informed view, I venture to say that plea bargain would not truly benefit economies with small populations. It would not, for example, address the root causes of case-backlogs, such as the lack of human resources, and inefficiencies and delays in the judicial system, poor administrative processes, case-flow procedures in the registries, inadequate information technology, digital recording of trials, and an increase in incoming cases. In reality, its application in small-population developing countries may promote greater injustices.

A 2023 American Bar Association Task Force Report (Report) posits that the potential benefits of plea bargain have become the driving force of criminal adjudication at the cost of more fundamental values, where efficiency and finality tend to trump the search for truth and justice. However, while plea bargaining helps to mitigate the excessive harshness of the criminal justice system; it is also a safety valve for injustice. The primary basis for the criticism of plea bargaining was pointed out in Judge Ralph A Fine’s 1986 book, ‘Escape of the Guilty’, which states that it harms society and gives criminals an undeserved break. In essence, lawyers, judges, and criminals benefit at the expense of the innocent and justice. Plea bargaining hurts defendants as well. Based on the US Supreme Court decision in Bordenkircher v Hayes, Judge Fine pointed out that plea bargaining has great potential for coercing pleas from the innocent or punishing defendants for the exercise of their constitutional right to a trial.

While plea bargaining makes things easier for everyone, Fine argued that “innocent people are caught up in a bureaucratic web that destroys lives and livelihoods; … a justice system that values coerced pleas over the search for truth; and bullying police agencies empowered to make deals without due process.” Similarly, Paul C Roberts and Lawrence M Stratton’s principal argument in their 2000 Tyranny of Good Intentions is that the law has been transformed from a shield that protects the people from the encroachments of government power into a sword that enables the government to lord over the people.

Yet, there are many purported benefits of plea bargaining. Many jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, states can direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct. A plea also provides a clear and certain resolution to a case, which purports to bring finality for the defendants, the victims, the courts, and the community.

On the downside, according to the Report, prosecutors understand and exploit the defendants’ fear of risks at trial to induce guilty pleas in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury. A guilty plea means relinquishing the right to confront adverse witnesses. It may also entail loss of the opportunity to challenge evidence that was procured in violation of the Constitution. The reality that few pre-trial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defence lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly take a plea.

Trial by jury ensures the government proves its case beyond a reasonable doubt—the highest standard of proof available under the law. The public jury trial promotes fundamental values of transparency, accountability, justice, and legitimacy. Plea bargaining replaces the public jury trial and this is problematic for many reasons. The constitution guarantees a right to an open, public trial in criminal cases, and plea bargain provides no adequate constitutional substitute. It is true that guilty pleas are taken publicly, but the negotiation over the terms of those pleas occurs in hallways or through phone calls between attorneys. In essence, the parties themselves negotiate an outcome and present it to the judge. There is no oversight from the judge, the public, or the media, and rarely any community participation in this negotiation process. While the judge may act as a check on the process by either accepting or rejecting the plea, the negotiation of the plea takes place entirely off the record. Furthermore, appellate review of plea bargaining is limited and as a result, countless potential legal issues in the cases are never addressed or resolved by the courts on the merits.

Furthermore, a common critique is that plea bargains hide police misconduct. The primary remedy for police misconduct is the exclusionary rule, which prohibits the state from using evidence obtained by violating the defendant’s constitutional rights. Trial and pre-trial litigations are essential for holding police and other state actors accountable, and plea bargaining has eroded these systems of accountability.

The Report posits that, while efficiency is important, the goal should be ‘a criminal justice system where defendants are guaranteed due process, victims receive justice, and the rule of law can flourish.’ Several guidelines on plea bargain were proposed, the 14^thof which states that, “At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistently…, and to promote transparency, accountability, justice, and legitimacy in the criminal system.”

Further, the 2012 USAID Guidelines on Separation of Powers Project in Serbia may shed some light on alternative mechanisms which include:

• Introducing backlog reduction teams in the court;
• Labelling of old pending cases;
• Improving cooperation between the courts and key external actors;
• Introducing [or adding] procedural measures in the proceedings;
• Investing in e-justice measures; and
• Strengthening the enforcement process.

Meanwhile, according to Jamaica’s Chief Justice Sykes, the judicial system has made great strides with the parish courts free of case-backlogs. The system takes the view that the fundamental cause of the backlog problem resulted from the judiciary not managing the cases with prosecutors, defense attorneys, and other attorneys for litigants determining their availability, preparation and time for trials. The system has embarked on backlog reduction mechanisms which focus on international best practices, such as, judicial management of cases, trial readiness, settlement conferences, fixed times for certain filings by attorneys, prosecutorial or judicial review of delayed cases on the likelihood of conviction, and the elimination of preliminary inquiries, that have proven to be effective in eliminating delay and consequently reducing backlogs.

It has also applied plea bargain, but emphasize delays reduction through the provision of statistical information, improved administrative processes, and case-flow procedures in the registries, judicial education, information technology, and digital recording of trials, administrative tribunals, human resource management and court administration training.

As a concluding note, perhaps CARICOM economies should adopt the Jamaican approach. However, adopting any of these measures may require participants to adapt or modify their ethical and work-cultural behavior, something not easily achieved in developing countries. Nevertheless, plea bargaining clearly would not address the root causes of the case-backlogs that overcrowd the system. In countries with small populations, where almost everyone knows someone, plea bargaining would likely promote greater injustice through bribery and corruption, and with criminal masterminds and ringleaders jumping at the offer to negotiate minimal penalty at the expense of co-criminals, victims and society. In essence, it would subscribe to the continuance of injustice by facilitating the escape of the guilty while minimally contributing to efficiency of the justice system.

Ronald Singh, LLM, MS, International Lawyer

Lecturer, Faculty of Law, The University of the West Indies, Mona Campus

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• Faculty of Law, International Lawyer, lecturer, Mona Campus, Ronald Singh, The University of the West Indies

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