A comparative look at plea bargaining in Australia, Canada, England, New Zealand, and the United States.

• Author: Brook, Carol A.
• Position: I. The Issues G. Policy through Conclusion, with footnotes, p. 1190-1224 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier

7. Policy

   In your opinion is plea bargaining a positive system? A necessary one?

   "Is the practice of plea bargaining a good development?": what a difficult question to answer. Our participants bring a wealth of different experiences, in different nations, and come to answers that may themselves raise more questions than they answer.

   Australia, Hon. Justice Fiannaca: Plea bargaining is a necessity. Much of the public discussion about measures to reduce delays in the criminal justice system has been led by the courts, usually by the Chief Justice of a jurisdiction. Those measures almost invariably include the need for the State and the defense to confer with a view to early resolution. That is certainly a feature of a system implemented in the Supreme Court of Western Australia (which deals with most homicide cases and armed robberies in the state), which involves colocation of a Magistrates Court within the Supreme Court precincts, presided over by Supreme Court Registrars, and the availability of voluntary criminal case conferencing (VCCC) facilitated by ex-judges of the District Court. (193)

   The fact is that a substantial majority of defendants plead guilty to the charges brought against them. (194) The number of cases in which there is initially a plea of not guilty, however, is still sufficiently large that the court system would be overwhelmed if they all proceeded to trial, and significant delays would occur. (195)

   There will usually be matters that one side or the other in a case may not be aware of, and which may affect their position. There is no doubt that the resolution of a prosecution without trial can be aided by the airing of such matters in a confidential setting, with the result that areas of contention are reduced or removed after appropriate investigations and negotiations. Achieving appropriate pleas of guilty by those means is good for victims, defendants, and other stakeholders. (196) Pleas of guilty provide certainty for all parties, prevent appeals (at least against conviction), and limit the time defendants may spend in custody on remand pending trial if they are refused or cannot make bail. As one of my colleagues put it, "a sentenced prisoner has greater access to programs than a remand prisoner, and a sentenced offender who should appropriately be released into the community can commence rehabilitation at the earliest stage, rather than becoming institutionalised while awaiting trial." (197)

   Finally, it is in the interest of the community that the resources of its prosecution service are used efficiently. In terms of trial preparation, a prosecutor's time and effort are a resource that should be allocated to cases that must inevitably proceed to trial, rather than to those in which a plea of guilty may be entered late in the process, and which could have been resolved earlier.

   Canada, Hon. Justice Pomerance: Resolution discussions are certainly important in Canada, given the demands on the justice system. The system benefits from having a mechanism that reduces the number of criminal trials. The extent of that benefit will vary depending upon the jurisdiction and the crush of the justice workload. In some places, it is a necessity.

   That said, resolution discussions are also a mechanism for the attainment of justice. When a judge, as an objective party, presides over these discussions, she injects a "reality check" for the parties. The discussion of the case--its strengths and weaknesses--can assist both counsel in understanding the realities of their position. This, in turn, can lead to an informed and considered reassessment where appropriate. The goal is not just to achieve efficiency, but rather, to achieve justice in a more efficient manner.

   England and Wales, Professor McEwan: It is clearly not a necessity. Negotiations can take place without the complex array of possible charges through predictable sentences and prosecution involvement in sentences that plea bargains properly require. As I have written, if principles such as equality of arms and judicial neutrality are observed, plea bargaining is consistent with the adversarial notion of the just settlement of disputes, conferring legitimacy on the process. When legal services are unequally distributed, the bargain may be unfair, distorting accuracy of decision making and endangering the rule of law. (198) Here we are much more exercised by the legal aid cuts than anything else; it would affect freedom and equity in negotiation if defendants were unrepresented, as is likely to be the case if things carry on as they are. The effect of funding on legal advice also needs scrutiny. If counsel is paid by the State as much for a guilty plea as for a fought trial (or vice versa), that might be significant.

   New Zealand, Hon. Judge Harvey: Practice seems to have validated the effectiveness of sentence indications as a means of dealing with cases efficiently when there is little doubt as to the guilt of the accused.

   I am unsure whether experience in the United States demonstrates a reluctance on the part of accused people to "bite the bullet" and take responsibility for their actions. Often cases that are "hotly contested" at the beginning result in a plea of guilty at or just before the hearing, when accused persons finally face up to the reality of the situation and the strength of evidence against them. Sentence indications can give the hesitant accused an opportunity to look ahead and ascertain a likely outcome.

   The efficiencies can be summarized as follows:

   (1) Sentence indications can often result in a meritless case avoiding trial.

   (2) Sentence indications give an accused person an opportunity to consider a guilty plea well before trial.

   (3) Without sentence indications, the time allocated for trial often would collapse. From my own experience, I can recall days when an entire defended case list before a judge would collapse as a result of accused persons finally recognizing the strength of the prosecution's case against them.

   (4) Therefore, sentence indications provide a winnowing effect with the result that more contested cases are reaching trial.

   Are they a necessity? I think practice is making them so. If we were to return to an environment when sentence indications were not given, it would result in inefficiencies in court procedure, last-minute guilty pleas, judicial and court down time, and further delays in the court process. Our court systems are quite overburdened as it is, and sentence indications do have the effect of reducing that burden to a certain degree. For those reasons, I think that, as the result of practice, they have become a necessity.

   United States, Ms. Brook: That is kind of a trick question. In these times, it may be a positive system because it is the only way to eliminate some of the more draconian enhancements that can be brought to bear by prosecutors when defendants choose to go to trial. Many of these enhancements are described in a recent study conducted by Human Rights Watch. (199)

   Does plea bargaining conserve scarce resources, saving time and money? Absolutely. Would the system crash if every case went to trial? Again, absolutely. Is it in every defendant's best interest to go to trial? Under the current system, absolutely not.

   All of these are important considerations. But, as one judge wrote: "These gains in efficiency are not ... without consequence.... The glut of plea bargaining and the pandemic waiver of [trial] rights have rendered trial by jury an inconvenient artifact." (200) And as another noted more recently: "Because there is no judicial check on the enhanced mandatory minimums prosecutors can inject into a case, they can put enormous pressure on defendants to plead guilty. In many cases, only a daring risk-taker can withstand that pressure. Most people buckle under it." (201)

   Is plea bargaining a necessity? Again, that is a difficult question to answer because of the chicken and egg phenomenon. Congress has created thousands of federal crimes--so many that no one is able to count them, and many do not even require proof of criminal intent. (202) As we discuss elsewhere, Congress and many states have also given prosecutors unprecedented leverage in plea bargaining by enacting so many crimes that carry mandatory minimum sentences. (203) It is the prosecution's choice of charges today that determines the sentence, not the discretion of the court. Under these circumstances, plea bargaining does become a necessity.

8. Reforms

   If you could change your process, what would you do?

   In dealing with a recent comprehensive statutory overhaul of the system, as one finds in New Zealand, the interest in major changes is--not surprisingly--limited. With other systems, however, in which no such overhaul has taken place, at least not in recent years, some strong concerns are expressed here.

   Australia, Hon. Justice Fiannaca: I would explore measures to ensure that proper consideration of the materials by both parties, and the taking of instructions by defense counsel, take place prior to committal to a superior court, (204) so that discussions could be undertaken properly at an early stage. Sometimes, that capability is impeded by delays in the disclosure of materials by the investigating agency (including the obtaining of forensic reports), but there are other practical factors at play that can result in matters being listed for trial before meaningful discussions occur. In cases of legal aid defendants, for instance, the remuneration arrangements of legal aid offices tend to be a disincentive for private practitioners to do substantial work on a case early for the purpose of negotiations if there is a prospect that agreement will not be reached and the matter will proceed to trial in any event. (205) Such arrangements tend to limit the amount of "getting up" for which the practitioner will be paid. (206) Any change in the process would need to address issues of that kind.

   Otherwise...