Bert Samuels, ContributorThe Concise Oxford Dictionary defines the word bargain as "an agreement on terms of give and take"; the word 'plea' in Jowitt's Dictionary of English Law, in so far as the criminal law is concerned, is said to be used colloquially to mean a plea of guilty. In practice, the defendant with or without having pleaded guilty, by way of a bargain with the prosecution, relies heavily upon that fact during sentencing hearings. He often reasons that his plea of guilt ought to inure to his benefit and significantly lighten his punishment. Consequently, plea bargain has been defined as the process by which a defendant agrees to relinquish his rights to go to trial in exchange for a reduction in charge and/or sentence.
The defendant who admits his wrong, saves the court's time, prevents the victim from enduring the often onerous task of testifying and being cross-examined or simply being put to prove the case against him, and should be justly rewarded with a substantial discount in the sentence imposed. In fact, it is
settled law that a judge is entitled to reduce a defendant's punishment he would otherwise receive, had he contested his case and suffered a finding of guilt by the court.
Rather than offering a plea to the charge for which the defendant was charged at the time of his arrest, there has developed over time, a practice whereby the defendant may waive his constitutional right to a trial, in exchange for pleading guilty to a lesser charge. The practical results of this 'deal' are that in the Resident Magistrate's Court for example, a case which may last a year of trial, is reduced to an hour or less and in the High Court, days of trial by judge and jury are avoided.
At present there is no formal system of plea bargaining operating here in Jamaica. It operates at an informal level as the practice has no statutory or common-law support. However, the reality of our overburdened trial process is that the system would grind to a halt should every defendant elect to go to trial. The weighty lists of cases before the courts indicate that the system is in desperate need of new and innovative ways of dealing with the tremendous backlog of untried matters.
alarming state of affairs
There are cases in the Resident Magistrate's Court which have been part heard, that is, the trial has been continuing, for over three years. In addition to this fact, there are, at present, cases which have marked their fourth anniversary without being heard. This alarming state of affairs is due to several factors. These include the fact that several parishes are operating with only one half their quota of magistrates at a time when crime has doubled in the past ten years. Witnesses in many cases have lost the zeal and interest to continue attending adjourning hearings. The net result is that the guilty are often set free and the innocent unfairly caught up in the massive delays before they are able to get on with their lives.
In so far as necessity is the mother
of invention, with or without the
intervention of Parliament, prosecutors and defence lawyers have had to employ methods to deal with the pressing case load. They have been forced to do so having regard to the tremendous work the courts are expected to accomplish, which cannot be achieved where
defendants feel compelled to go to trial on every charge preferred against them. This fact was recognised in 1971 by Chief Justice Burger of the United States Supreme Court when he opined "... if every criminal charged were
subject to a full-scale trial, the Government would need to multiply by many times the number of judges and court facilitators."
In fact, even in civil cases, this fact has been recognised and mechanisms have been instituted under the Civil Procedure Rules of 2000 to make inroads into the backlog of civil cases. The courts have assumed the management and control of the cases with the power to refer them to be settled by way of dispute resolution. Litigants are expected, in the spirit of give and take, "to bargain" their way to a settlement with the assistance of trained mediators. The result is that much judicial time and expense to the parties is being saved.
In its purest form, plea bargaining is hatched as a result of the prosecutor withdrawing some of the charges or agreeing to reduce a charge, in exchange for the defendant offering a plea of guilt. The prosecutor thereafter makes a
recommendation as to the sentence in light of the defendant relinquishing his right to go to trial. A prosecutor will take into consideration the strength and weaknesses of his case in determining which of the charges he is prepared to 'throw in the towel' on and which he will offer to the defence for a plea. The judge is thereafter armed with "minimal discretion" in determining sentence for a plea-bargained offence.
Because the common law frowns upon any discussion with the judge regarding the likely sentence which will follow a plea bargained, there has been much resistance to its wholesale introduction in our jurisprudence. So that, whereas on the one hand, a defendant is better able to elect to give up the right to go to trial where his fate is known prior to the passage of sentence, the judges have taken the position that it is wrong for defence counsel to approach them for an indication of the sentence to be passed. It is not anticipated that there will be this paradigm shift in Jamaica.
In the United States, the prosecutor is the main decision maker in sentence. This is a power our judges would be most reluctant to relinquish. It is to be noted that the present bill before Parliament does not venture this far. The judges will retain their powers of sentence restricted by the proposed "plea negotiations and agreements" law, to a maximum of two thirds of the upper limit the offence attracts and where the sentence is that of life, a maximum of 15 years.
Under our current system, prosecutors are not prepared to offer a lesser sentence where the evidence before them cannot justify it. Plea bargaining has a more liberal approach and a lesser charge may be negotiation even in circumstances where it has no evidential support.
compelled by public opinion
The advantages for adopting a formal system of plea bargaining are too numerous to be disregarded. The justice system is compelled by public opinion to halt the massive delays in order to retain its credibility. Some of the advantages include:
It leads to the swift determination of matters.
It will allow for swift justice which is itself a deterrent.
It is certain to prevent the all too common state of affairs where a defendant is kept in custody for too long a period of time in some instances, a time which outlives the time he would have served, were he sentenced within a reasonable time after arrest.
Witnesses and victims will be spared what has now become 'the risk' of attending and testifying at court.
Victims are less likely to become frustrated and thus make themselves 'unavailable' for trial.
The cost saving to the Government is tremendous as there would be a reduction in the number of judges, jurors, prosecutors, and court staff in general. In fact, there would be less pressure on the police who must monitor and follow up cases from arrest to completion.
In other jurisdictions which have incorporated the system into law, over 80 per cent of defendants offer pleas so that only one in every five persons charged elect to go to trial. At present, my experience is that the reverse obtains here. Four out of every five defendants plead guilty and only in rare cases, offer a plea for serious offences. The result is that we simply cannot try all of our contested cases. The Pratt and Morgan 1999 Privy Counsel rulings which have put in place a five-year timeline for the carrying out of the death penalty, have given more justification for new and innovative means to be found to deal with the chronic delays we now face. These cases serve as a timely reminder that delay on its own can result in fundamental constitutional relief to the convicted, a fortiori the person awaiting trial.
The plea bargain system is not without its fervent critics. To them it is seen as putting undue pressure on a defendant who is presumed innocent to offer a plea. In fact, a number of defendants to whom I have spoken, who have served time in the U.S., have confided in me that they gave a plea only because they were threatened with the possibility of a lengthy sentence, rather than because they were in fact guilty of any offence.
INHERENT DANGERS
One of the most important factors driving the need for the plea bargaining system to be introduced in Jamaica is the call from law enforcement officers. An accused will be encouraged to give information/testimony with respect to other offenders in exchange for a reduction in the number of or a reduction in the charge(s) to be preferred. In layman's terms, the suspect will agree to testify in many instances against his partner in crime in exchange for leniency. This is a very sensitive matter. It comes at a time when any person deemed to be an 'informer' is open for serious reprisals from the criminal underworld. The implications here in Jamaica will have to be seriously considered. These are both legal and social considerations.
trade in testimony
The law has always required a judge and jury to view with suspicion, the evidence of a witness whose testimony is deemed to be tainted with an 'interest to serve'. In the case of a defendant prepared to trade in his testimony in exchange for leniency by implicating another, a greater interest to serve you may not easily find. You may have a scenario where John Brown committed a crime by himself. He realises that his punishment will be seriously reduced should he implicate an innocent suspect, Tom Strokes. The result is that a stranger to the crime becomes the sacrificial lamb. The matter does not end here, however, as upon Tom's release, he is bound to seek revenge.
Also in a case where Tom Strokes implicates his true partner in crime and testifies against him, what programme
is in place to protect him after he has cooperated and secured a conviction against that defendant? We are not a sufficiently huge country for a person to 'disappear' and elude the hands of those whom he 'gave away' in his deal with the prosecution There are, therefore, serious security issues which must be addressed prior to this Act coming into force.
To safeguard the strong likelihood that persons will seek to implicate others wrongly as part of the 'deal' with prosecutors, there ought to be a mandatory requirement that the evidence of such a person be in law corroborated. Simply put, there must be evidence independent of that testimony, in support of it, before a conviction can be entered.
To list a few some of the disadvantages are:
The innocent defendant is exposed to being coerced into giving a plea where he feels overwhelmed by the threat of being sentenced on a greater offence.
It is believed that the system will cause persons to escape being punished proportionately to their wrongdoing.
It can avoid the need for the prosecution to be put to its proof in circumstances where a defendant may, from ignorance, be unaware of his innocence particularly in offences of a technical nature.
An unscrupulous prosecutor may 'overcharge' a defendant with the hope that he will, under pressure, opt for the lesser charge which was at all material times, the only charge possible on the evidence.
SAFEGUARDS NEEDED
The introduction of plea bargaining in Jamaica is long overdue. The system would be a mere recognition of that which is already in use. It will allow all parties in a system too stifled by its adversarial nature, to have the judge, prosecutor and defendant's lawyer
acting together to ease the system which is currently bursting at the seam. The safeguards suggested, though not exhaustive, must, however, be put in place to protect those who will be affected by the testimony of defendants who agree to enter the bargain as well as for the defendants themselves. Properly administered, it should result in a reduction in our overcrowded jails, fewer overworked judges and make less applicable in Jamaica, the notion that justice delayed is justice denied.
Bert Samuels is a Kingston-based attorney-at-law.
