LEGISLATIVE REMEDIES TO ENSURE THE REASONABLE TERM IN A CRIMINAL TRIAL. THE PLEA AGREEMENT: ROMANIA'S EXPERIENCE

The Sixth Amendment to the United States Constitution guarantees all criminal defendants the right to a jury trial. According to the text of the Sixth Amendment, all criminal cases must be adjudicated through a jury trial. When the framers of the U.S. Constitution drafted the Sixth Amendment, they envisioned jury trials as a simplified procedure, believing it was feasible to conduct all criminal cases through jury trials. However, as evidentiary rules were refined and the adversarial criminal procedure system was established, jury trials became proceedings that require significant material and human resources, as well as considerable time. If all criminal cases were conducted through jury trials, the criminal justice system would inevitably become paralyzed. In response to this situation, the United States processes most criminal cases through plea bargaining, and in reality, fewer than 5% of all criminal cases go to a jury trial. Plea bargaining serves to prevent the disruption of the criminal justice system that could result from requiring all criminal cases to be tried by a jury under the Sixth Amendment. In South Korea, the Korean-style jury trial system, known as the People’s Participation Trial(국민참여재판), has been in place since 2008. There have been discussions about eliminating restrictions on the scope of cases eligible for jury trials and granting binding force to jury verdicts. However, as seen in the historical development of the U.S. jury trial system, conducting all criminal cases through jury trials is nearly impossible due to limitations in human and material resources and time constraints. Therefore, it is necessary to impose reasonable restrictions on the types of cases subject to People’s Participation Trials in South Korea. Regarding the binding force of jury verdicts, it would also be reasonable to impose limitations, such as recognizing binding force only when the verdict is unanimous. The issue of introducing plea bargaining in South Korea should also be evaluated in consideration of the differences between the U.S. and South Korean legal systems. In South Korea, jury trials are not constitutionally guaranteed for all criminal cases, and there is no urgent need to limit the number of cases going to trial through mechanisms such as plea bargaining to prevent system overload. Unlike the United States, plea bargaining is not essential to the South Korean criminal justice system. Given the various issues inherent in plea bargaining, there is no necessity for South Korea to adopt the U.S.-style plea bargaining system within its legal framework.

In India Courts are overburdened with litigations. There are so many reasons for over burdening but one of the good reason is that proportionately to the case number of courts are less, and applications of procedural law consumes lot of time and it result into delay. “Justice Delayed is Justice Denied” that is the reason people usually frustrate by litigations in India. Recently there is a good realization amounts all stockholders of law that there should be quick disposal of cases and prompt justice delivered system. Considering this aspect, to lessen the burden of court alternate dispute resolution system is encouraged and having good result in the form of mediation and arbitration. Even civil courts under section 18 resort to settle the matter through mediation. In criminal arbitration of justice now fast track courts are doing very good role and delay in criminal trials to some extent is minimize may not be fully controlled. But for that we have to give credit to Supreme Court of India by giving directions in number of Public interest Litigation started from Hussainara Khatun & Others Vs Home Secretary, State of Bihar ( 1979 AIR 1369,1979 SCR(3)532). There is also a one thought to introduce plea bargaining in India. Plea bargain usually occurs any time before verdict is passed. Good thing about Plea Bargain is that it concludes a criminal case without a trial. PLEA BARGAINING IN INDIA Prior to the Criminal law (Amendment) Act, 2005 the concept of Plea Bargain was totally unknown. In state of UP vs Chandrika( AIR 2000SC 164) and Kripalsingh Vs State of Haryana 2000(1) Crimes 53 (SC). Supreme Court of India observed that the concept of Plea Bargaining is against the Public Policy and further said that neither that trial Courts nor High Court has Jurisdiction to bypass the minimum sentence prescribed by the law. Before proceeding to plea bargaining the concept now started introducing in India, it would be good known what is pleas bargaining. There is no perfect or simple definition of Plea Bargaining. Simply we can put it and say that a plea bargaining is a contractual bargaining between the prosecution and in defendant accused concerning disposition of a criminal charge. However, unlike other contractual obligations it is not enforceable until a Judge approved it. From the point of view accused means who trends conviction and demand lesser sentence where he likely to be convicted. As researcher written about that the Plea bargaining, introduced in India from the year 2005 and not earlier. But there are certain provisions n earlier Acts also i.e. provision in chapter XXI of Crpc. The same has taken place through amendment I criminal law (Amendment) Act, 2005 and came into the effect from July 2005. Recognizing that there are significant differences in criminal procedures as well as in the role and status of various agencies in different countries, the Act does not give recognition to any existing practice akin to plea-bargaining. Instead, it lays down procedures with a distinct feature of enabling an accused to an application for plea bargaining in the court where the trial is pending. The Act further requires the court after receiving the application, must examine the accused in camera to ascertain whether the application has been filed voluntarily. Once the court is convinced that the accused is participating, in the plea-bargain voluntarily, the court must then issue notice to the Public prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the free will of the prosecution (including the victim) and the accused. 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. 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; above, then the accused may be sentences to one fourth of the punishment provided or extendable for such offences. The accused may also avail of the benefit under section 428 of the code of criminal Procedure, 1973 which allows setting of the period of detention undergone by the accused against the sentence of imprisonment in plea bargained settlement. The court must deliver the Judgement in open Court according to the terms of the mutually agreed disposition and formula prescribed for sentencing including victim Compensation. IT may be noted that this Judgement is final and no appeal lies apart from a writ petition to the State high Court under article 226 and 226 of the Constitution or a special leave petition to the Supreme Court under Article 136 of the Constitution. IN addition to above the Act also provides: • If the accused is a first time offender, the court will have the option of releasing him/her on probation. Alternatively, the court may grant half the minimum punishment for the particular offence. • The plea-bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years; it does not apply where such offence affect the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years; • The application for plea – bargaining should be filed by the accused voluntarily; • 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; This was the concept of plea bargaining, in a nutshell, as included in Indian Criminal Justice Process. It would be pertinent here to understand how different the above process is from the plea bargaining as practiced in United States. In India rate of conviction is not high, on the contrary acquittal rate is more i.e. why accused do not resort to plea-bargaining. Because in plea bargaining once you accept guilt, conviction is must. When most of the accused are told that the will be acquitted by court they usually do not come forward for plea bargaining. Therefore unless and until conviction rate is not become higher, there will not be good result of plea bargaining what actually was happened in USA same cannot be happened in India immediately. The need of the time is to revamp criminal administration of the justice.

The defense counsel in a rape case makes his way to the District Attorney's offices in order to work out a possible plea bargain. His client maintains that the sex was fully consensual, while the District Attorney claims that he has substantial evidence to the contrary. His client's position is that he is innocent of the charge and is entitled to a full acquittal, while the District Attorney is demanding that the full weight of the law be brought to bear against him, including a hefty custodial sentence. Defense counsel knows from reading the evidential material that an integral part of his client's posturing and that of the District Attorney merely amount to rhetoric for the purposes of conducting negotiations, and that it would be an uphill battle to prove either of the two extreme positions. Defense counsel is experienced enough to know that there is insufficient evidence in the case to convict his client of rape, but the chances of an acquittal are also unclear. The acceptable solution in his view is to reach a plea bargain, according to which his client will admit to a minor sex offense in return for a relatively light sentence, enabling the prosecution therefore also to feel vindicated. With this aim in mind, the accused's attorney makes his way to the District Attorney's offices. The client also needs convincing that this is the best deal for him in the circumstances, or at least it amounts to the lesser of two evils.A criminal case of such kind, far from being uncommon, is the standard practice of defense counsels in the overwhelming number of cases . In this article, it will be argued that defense counsel's function in such instances is identical to that of a mediator, seeking as he does to reconcile the positions of the accused and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the late 1970's.An analysis of plea bargains in the western world as part of the broader concept of Alternative Dispute Resolution actually shows that it is the defense counsel, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute . This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and creating an impression of force employed by the defense counsel in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense counsel in plea bargaining may be recognized, it will be argued that this has implications, rooted in applying the accumulated experience of the mediator in private litigation in relation also to plea bargains in criminal cases.

Plea bargaining is an out of court process whichallows the accused to plea for reduction of a charge or sentence for an offencethat he had committed. It is a common practice among the accused and theprosecutor to expedite the disposal of criminal case. It benefits the prosecutorto secure the punishment of the accused without proceeding to a full trial,which needs a certain procedure and a higher standard of proof to prove theaccused guilty of an offence. Through plea bargaining, the accused will not besubjected to severe charge or punishment, and the prosecutor and the accusedcannot appeal the case to the higher court if plea bargaining is successful.Nevertheless, the process of negotiation without the assistance of a thirdparty could lead to the unsuccessful of plea bargaining which may result to afull trial. This happens if the prosecutor or the accused disagree with thesentence or a new charge offered by any one of them. This will causeinconvenience to the accused if he initially agrees to plea bargaining forreduction of the charge or sentence, however, due to the dissatisfaction of thesuggestion of a new charge or sentence offered by the accused, the prosecutor tendsto proceed the case to a full trial. This can be avoided if a neutral thirdparty assists the accused and the offender to reach a deal. For instance, inSingapore a judge acts as a mediator to facilitate the process of pleabargaining to resolve criminal cases out of court. Thus, this research examineshow plea bargaining is conducted under the Criminal Procedure Code of Malaysia.It also analyses how mediation helps plea bargaining process under the law ofSingapore. It is suggested that the Criminal Procedure Code of Malaysia beamended to allow a third party to facilitate the process of plea bargaining.

As the death grip of adversary procedure has tightened around the common law criminal trial, trial has ceased to be workable as a routine dispositive proceeding. Our criminal justice system has become ever more dependent on processing cases of serious crime through the nontrial procedure of plea bargaining. Unable to adjudicate, we now engage in condemnation without adjudication. Because our constitutions guarantee adjudication, we threaten the criminal defendant with a markedly greater sanction if he insists on adjudication and is convicted. This sentencing differential, directed towards inducing the defendant to waive his right to trial, makes plea bargaining work. It also makes plea bargaining intrinsically coercive. I have elsewhere had occasion to point to the host of irremediable deficiencies moral, juridical, practical that inhere in the plea bargaining system.' Plea bargaining is such a recent2 and transparent evasion of our cherished common law tradition of criminal trial that its well-meaning practitioners and proponents feel a deep need for reassurance that what they are doing is not so bad as it looks. Rather lately, apologists for American plea bargaining have been sounding a theme purportedly derived from comparative law. As a corollary to the proposition that plea bargaining is not really so bad, the claim is advanced that everybody else does it too. Plea bargaining is said to be universal, at least in the legal systems of advanced industrial countries. 3

Plea bargain has been globally accepted as a useful criminal prosecutorial tool in accelerating the prosecution of minor criminal cases. However, it has been observed that the introduction of a plea bargain into the Nigerian criminal justice system tends to aid the ruling class in looting from the public treasury and escaping justice. Given these legal anomalies, the study used online survey questionnaires sent to four hundred and five respondents (randomly selected) residing in Nigeria in ascertaining the Nigerian citizens view on the legal effect of using a plea bargain in resolving high profile financial crime cases. Descriptive and analytical statistics were used to analyse the respondents’ responses. The study, therefore, found that though plea bargain is a useful criminal prosecutorial tool in resolving minor criminal cases, it is unsuitable in resolving high profile criminal financial cases as it tends to involve a hide and seek game which makes a mockery of the Nigeria Legal System. It is, therefore, concluded and recommended that the concept of a plea bargain in Nigeria legal system should not be used in resolving high-profile criminal financial cases, as it tends to give leverage to those looting public funds.

Chapter 3 - The Structure of Federal and State Courts

Plea bargaining is a ubiquitous phenomenon in certain contemporary criminal justice systems. Most estimates of its frequency in the United States, for instance, suggest that upwards of ninety per cent of criminal cases are resolved through some form of it. (1) Plea bargaining consists of both sentence bargaining, where charged defendants agree to plead guilty in exchange for sentence reductions, and charge bargaining, where charged defendants plead guilty to a subset of charges (sometimes for reduced sentences) against them in exchange for prosecutors dropping other charges (or not adding additional ones). There has been some philosophical discussion of the practice of plea bargaining, much of it focused on whether prosecutors' offers are in some way coercive. (2) Considerably more attention has been paid to it by legal scholars. (3) But none of the extant literature addresses very fully or carefully the ways and extent to which the practice comports with a retributive approach to the justification of legal punishment. (4) Intuitively, plea bargaining seems at odds with an approach to the justification of legal punishment that focuses on sanctioning offenders in accordance with the severity of their crimes. The relation between plea bargaining and just punishment seems too contingent to satisfy retributivists, especially since the existing literature on plea bargaining makes apparent that its outcomes depend on factors that often have little to do with the gravity of the offenses with which defendants are charged or to which they plead guilty, (5) Indeed, there seems little reason to believe that plea bargaining yields penalties for sanctions that consistently or systematically give offenders what they deserve. Moreover, plea bargaining may sometimes induce factually innocent defendants to plead guilty, while permitting individuals who are guilty of crimes to avoid punishment for them. Add to this the evidence that those who accept guilty pleas receive sentences that are lighter by some twenty-five to seventy-five per cent than those who, after trials, are convicted of the same offenses, and it is clear why retributivists might view the practice with considerable unease. (6) Some will respond to the preceding points by noting that they say more about the dubious character of retributivism than the suspect credentials of plea bargaining. But one need not be a pure retributivist to be troubled by the apparently tenuous relationship that exists between plea bargaining and ensuring that citizens receive the sentences that those among them who have committed crimes deserve. Even those who regard desert as only a limiting principle in a comprehensive justification of legal punishment, one that also gives a prominent role to crime reduction, might worry about the extent to which plea bargaining seems at odds with that principle. I shall not, in what follows, attempt to determine the precise weight that a desert principle should be given in a fully developed account of legal punishment, though I will assume it should be accorded significant weight. I shall instead elaborate the tensions between it and the practice of plea bargaining, recognizing that how troublesome those tensions will turn out to be depends on how seriously we take the notion that punishment should be responsive to citizens' criminal deserts. In the first section, I discuss the guiding principles and presuppositions of retributive justice. The latter concern the broader social conditions that must be satisfied if legal punishment is to function meaningfully as a mechanism for censuring citizens for their blameworthy conduct. The former concern the more specific features a criminal justice system must incorporate if it is to perform the tasks retributivists expect of it. In the second section, l refer to these presuppositions and guiding principles in elaborating the tensions that exist between retributive justice and plea bargaining. …

Both scholarly literature and public debate about plea bargaining embody a false dichotomy. Commentators err in assuming that criminal trials are the only alternative to plea bargains, and that fewer plea bargains lead inexorably to more trials. This paper offers a different choice, and points to prosecutorial screening as the principal alternative to plea bargains. Prosecutorial screening is a viable and significant alternative to living with the dishonesty of plea bargaining or mandating trials. The empirical heart of our paper studies charging data from New Orleans, where over the last three decades the New Orleans District Attorney emphasized early screening of cases and actively discouraged any changes of criminal charges as a result of negotiations after the charges are filed. This analysis confirms that a big city prosecutor can invest serious resources in early evaluation of cases and maintain this practice over the long run. All prosecutors screen cases. By prosecutorial screening we mean a structured charge selection process with four interrelated features: early assessment, reasoned selection, barriers to bargains, and enforcement. First, the prosecutor's office must make an early and careful assessment of each case, before the initial charge is filed. Second, the prosecutor's office should file charges only in provable cases that the office would generally want to result in a criminal conviction and sanction. Third, the office must severely restrict plea bargaining, and most especially charge bargains. Fourth, the office must create sufficient oversight and internal enforcement mechanisms to ensure reasonable uniformity in charging and relatively few changes to charges after they have been filed. A prosecutor who makes a realistic and early evaluation of the case will decrease in the number of negotiated guilty pleas, especially (and critically) charge bargains. Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of open pleas made without prior bargaining between the defendant and the prosecutor. A screening system that produces mostly open pleas avoids the dishonesty of plea bargaining when the offense of conviction does not match either the charges the state filed or the reality of the offender's behavior. Principled screening produces convictions that align as closely as possible with both the actual criminal behavior and the charges the prosecutor initially files. The prosecutor sends a single, consistent signal about the wisdom and worth of the case. Our study calls on every prosecutor to rethink how the office screens cases and how it explains its practices to the public. The screening/bargaining tradeoff should also become part of the political dialogue about the justice system, especially at election time. The public question should not be the conviction rate, but rather the ratio of as charged convictions to convictions.

ObjectivesWe examine whether, on average, plea bargaining encourages guilty pleas among defendants who are factually innocent.MethodsWe develop a formal theory of plea bargaining in which defendants take into account the possibility of false convictions or acquittals when making plea-bargain decisions. We use an incidentally truncated bivariate probit model to test the theory, which predicts that if innocent defendants plead guilty, the correlation (ρ) between the unobserved heterogeneity regarding selection into trial and regarding conviction at trial should be sufficiently positive. The method does not require knowledge of whether individual defendants are factually guilty or innocent. Since ρ is also predicted to vary directly with the unobserved toughness of prosecutors, we develop a decomposition theorem to distinguish between the effects of defendants and prosecutors in plea bargain decisions.ResultsUsing data on 2012 criminal cases decided in Israeli courts from 2010 to 2011, we find that ρ is large and positive. Hence, defendants who did not plea bargain were positively selected in terms of conviction. This means that defendants who accepted plea bargains had smaller counterfactual conviction probabilities than observationally similar defendants who went to trial.ConclusionsThe results indicate that, on average, factually innocent defendants in Israel during this period took plea bargains instead of going to trial. This contradicts “innocence effect” theory, which predicts that factually innocent defendants, on average, reject plea bargains. Our findings are important for research on shadow trial theory, since they show that selection into plea bargains cannot be ignored when inferring counterfactual trial outcomes for plea bargainers.

We consider a model of the criminal court process, focusing on plea bargaining. A plea bargain provides unequal incentives to go to trial because innocent defendants are more willing to plead not guilty. We show that the court process implements the preferences of the person or group who is most concerned about wrongful conviction. If a prosecutor is more concerned about wrongful conviction than the jury, the prosecutor can shape the defendant pool at trial so that jurors act according to prosecutor’s preferences against judicial mistakes. Our model also connects insights from strategic jury models that usually omit plea bargaining with the actual criminal court process where most cases are resolved through plea bargaining. As an example, we show that the inferiority of the unanimity rule established in Feddersen and Pesendorfer (Am Polit Sci Rev 92(1):23–35, 1998) persists in spite of the addition of plea bargaining.

▪ Abstract The right to criminal jury trial is protected by the U.S. Constitution and the constitutions of all 50 states. In practice, however, roughly 95% of persons convicted of felonies in America waive their right to trial by jury by entering guilty pleas. Most such pleas derive from plea bargaining, whereby defendants plead guilty in exchange for prosecutorial and judicial concessions. Although plea bargaining has generated an extensive scholarly literature, its history, until recently, has remained obscure. This review examines existing legal-historical scholarship on the origins and expansion of plea bargaining in the nineteenth century and explores the range of factors cited by legal historians for plea bargaining's rise. It reveals that plea bargaining was one of several methods employed by Anglo-American criminal justice administrators to dispose of criminal cases without juries. When compared with these other modes of bypassing trial by jury, plea bargaining appears less distinctive—and less distinctively American—than often considered.

In its most conventional and general sense, plea bargaining refers to pre-trial negotiations between the prosecution and the defence during which the accused agrees to plead guilty in return for certain concessions promised by the prosecutor: usually to drop or reduce some charges, or to recommend a specific sentence or to refrain from making any sentence recommendation. Since ultimately both affect the dispositional phase of the criminal proceedings by affecting the sentence, plea bargaining in this project will be taken to imply the waiver of the right to a trial in exchange for reduction in sentence.Plea bargaining is widely resorted to in the United States of America, so much so that ninety to ninety five percent of the criminal cases end with negotiated agreements rather than courtroom trials. By virtue of the Criminal Law (Amendment) Act, 2005, plea bargaining has been introduced in India by way of insertion of Chapter XXIA into the Criminal Procedure Code of 1973 [hereinafter Cr. P.C.], which has come into effect from July 5, 2006.The introduction of plea bargaining in the Indian criminal justice system is largely a response to the deplorable status quo, reflected in the delay in disposal of criminal cases and appeals, the huge arrears of cases and the appalling plight of under trial prisoners in jails. Critics of the plea bargaining system, however, allege that the system leads to excessive and undeserved leniency in the sentencing of admitted criminals, dilutes the deterrent effect of law and is coercive insofar as it induces the accused either to plead guilty in return for a lighter sentence or to waive the right to a trial in return for some other advantage. Others simply contend that the outcome of a criminal case should not be affected by lack of resources and that haggling over the price of a guilty plea is in principle wrong.No doubt efficiency and speedy disposal of cases are important and desirable goals. The question that is considered in this note is whether they are worth the perceived costs of plea bargaining. To this end, an attempt is made to examine whether there is any inherent impropriety in the system of plea negotiation, as also to understand the Indian avatar of plea bargaining and appraise it in view of the traditional objections to any system of plea bargaining.

Prosecutors are the key decision‐makers when it comes to plea bargaining, which is responsible for the resolution of about 90% of criminal cases. We distributed a mixed‐method survey to a national sample of 180 prosecutors to ask about their key considerations when initiating and prosecuting a criminal case. Additionally, the survey asked prosecutors to provide any information they wanted to share regarding plea bargaining. We then conducted a qualitative content analysis to comprehensively identify the factors the prosecutors discussed. We found several factors that prosecutors take into consideration when starting to evaluate a criminal case: attributes of the criminal defendant (e.g., criminal history), victim input (e.g., victim wishes), and factors specific to the case (e.g., evidence strength). Further, when asked if they would like to share anything regarding plea bargaining, some prosecutors stressed the necessity of the plea system, some shared their punishment orientations, and others discussed how they determine punishment on a case‐by‐case basis. Overall, prosecutors tended to stress criminal history as largely influential in their plea decision‐making. This study provides insight into prosecutorial plea bargain decision‐making while providing opportunity for future research.

Abstract--- Criminal Justice System in Indonesia has not been able to overcome criminal case backlog in courts. Besides the report from the Supreme Court about the large backlog of criminal cases in judicial institution, there was also a research which showed that judges in Indonesia tend to arrive at guilty verdicts on criminal acts with minor criminal charges (sanction under 5 years). The concept of Plea Bargaining which has been known and applied in several countries will also be included in Article 198 paragraph (5) and 199 of the Draft of Criminal Procedure Code (RKUHAP) in Indonesia which will be made as law. Although non explicit verbis named as Plea Bargaining, the spirit of these articles are similar to the plea bargaining system which has been practiced in many countries and is considered successful in overcoming the criminal case backlog in courts, therefore the study uses comparative study of plea bargaining system in several countries and also uses normative research method and carried out by using the statutory approach through a review of laws and regulations as well as regulations relating to the issue discussed. Legal materials are obtained from the Criminal Procedure Code (KUHAP) and the Draft of Criminal Procedure Code (RKUHAP) which has been in the final discussion at the House of Representatives and Government, and in addition, the secondary legal materials are obtained from books, journals and other literature. Meanwhile, the data collection technique used is a library research by examining legal materials relevant to the research discussion. Keywords--- plea bargaining, criminal case backlog, court