Practice Of Plea Bargaining Research Articles

An Analysis on the Efficiency of Alternative Dispute Resolution in Criminal Justice System with Emphasis on Plea Bargaining

Courts have long been severely overburdened with cases. It has been established that there are gaps in our current processes, and it is necessary to provide new ADR mechanisms so that conflicts can be resolved without the involvement of the court directly. ADR in criminal cases has failed to pick up speed, even though it is steadily becoming the norm for resolving civil issues. Plea bargaining is one of the ADR techniques used in the criminal judicial system. In the USA, plea bargaining is highly popular and accounts for over 90% of case resolutions. Plea bargaining has a solid track record in the United States of America for ensuring swift justice and access for all socioeconomic classes. Despite the fact that the idea of plea bargaining was first introduced to our criminal justice system back in 2005, India has not had much success with it. The many ADR techniques used in the criminal justice system are listed in this essay, along with an evaluation of their efficacy. It also compares plea bargaining practices across several nations, including Germany, the United Kingdom, France, India, and the United States, and examines whether India's current plea-bargaining system is effective enough to address the issue of the backlog of cases in our courts. The paper also makes recommendations to the legislative body to improve the effectiveness and efficiency of plea negotiations.

Plea Bargaining in Nigeria Under the Administration of Criminal Justice Act

Abstract In the past decade or so, the subject of plea bargaining has assumed a, hitherto lacking, currency and has become more topical in Nigeria. This owes to the activities of the anti-corruption agencies which have, of recent, tended to use it in the resolution of cases. This increased use has resulted in outrage and condemnation of the practice. In order to ameliorate the perceived abuse of the practice of plea bargaining, the new criminal procedure statute, the Administration of Criminal Justice Act 2015 (ACJA), attempts to make comprehensive provisions to guard against its abuse. This article critically assesses the provisions of the ACJA on plea bargaining. It finds that the provisions are unduly broad, verbose and clumsy. Many are superfluous and overlap with others. It suggests an amendment of the statute in order to streamline such provisions.

Reconsideration of the Role of Prosecutors in the Chinese Plea Bargaining System: A Comparative Perspective

A plea bargaining system was introduced into Chinese Criminal Procedure Law in 2018 and became a basic principle of Chinese Criminal Procedure. This plea bargaining system embodies characteristics of both adversary and inquisitorial models. Chinese prosecutors are granted with a leading role in this plea bargaining system, as in the U.S., and can decide which cases are suitable for plea bargaining, which type of process can be applied, and give recommendations as to the sentencing, which judges shall in principle follow. To transplant such an arrangement from the U.S. model into an inquisitorial system, however, causes various problems. Fairness and justice cannot be entirely guaranteed under the wide-ranging practice of plea bargaining; the function of trials is derogated and undermined; and the decision-making process on core issues is moved forwards to the pre-trial period. Moreover, the procedural rights of defendants are more at risk when prosecutors dominate plea bargaining without any supervision from outside. With a brief introduction of an inquisitorial model based on the German plea bargaining system, the role of Chinese prosecutors in plea bargaining is urged to be reconsidered and their authority should be restricted in order to ensure that judges are guaranteed the judicial power to make final decisions.

The European Court of Human Rights on Negotiated Justice and Coercion

The present study analyses the approach the European Court of Human Rights’ to negotiated criminal justice and plea agreements in its landmark case, Natsvlishvili v Georgia. At the sight of the US Supreme Court case law and the practice of plea bargaining in the United States, I will argue why the institutional context and other external elements should be taken into account to determine if the guilty plea system has become coercive. I will further question if the approach of the ECtHR, applying strictly the criteria set out by the US Supreme Court should be followed when defining European standards on plea agreements.

The procedural entrapment of mass incarceration

More than 95 per cent of criminal convictions in the USA never go to trial, as the vast majority of defendants forfeit their constitutional rights to due process in the pervasive practice of plea bargaining. This article analyses the relationship between American mass incarceration and this mass forfeiture of procedural justice by situating the practice of plea bargaining in the normative framework drawn by recent Supreme Court rulings and the proliferation of criminal statutes, including mandatory minimum sentencing legislation. Looking at systemic racial disparities in sentence severity and incarceration rates for otherwise similarly situated defendants, I argue that, rather than a voluntary waiver of constitutional rights, this mass forfeiture of due process rights ought to be conceptualized as the product of an entrenched system of procedural entrapment. Such entrapment, I argue, ought to be abolished not only on grounds of procedural injustice, but because the practice refashions rather than redresses forms of racial domination derived from prior eras. The article concludes by exploring the tactic of mass conscientious plea refusal through the collectively organized assertion of constitutional due process rights as a strategy of resisting mass incarceration.

Gideon's Problematic Promises

The landmark case of “Gideon v. Wainwright” (1963) ensured the right of criminal defendants across the country to the effective assistance of counsel, but the overwhelming consensus is that the promise of “Gideon” has not been kept. Although there are significant differences in the delivery of indigent defense services across the country, there are four general reasons for the failure of “Gideon” that obtain across every jurisdiction and collectively cover much of the explanatory terrain: 1) its mandate is inadequately and precariously funded; 2) institutional impediments have impinged on the independence, training and oversight, and advocacy culture of indigent defense counsel; 3) legal remedies for ineffective assistance of counsel are often inadequate, inaccessible, or both; and 4) the ubiquitous practice of plea bargaining shields inadequate representation from view or remedy. Vindicating the right of poor people to effective representation in criminal cases remains a daunting but enormously important task.

Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective

The act of encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Sarcevic 2000:1). The role of a linguist and theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Sarcevic 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity. In the field of comparative law, these translation errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.

Procuring Guilty Pleas for International Crimes: The Limited Influence of Sentencing Discounts

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of impediments unknown to domestic prosecutors. Most important of these is that some groups of international defendants do not significantly value the sentencing concessions that form the heart of plea bargaining in national criminal justice systems. This Article explores the role of sentencing discounts in the guilty-plea decisions of international defendants, and it reveals that while sentencing discounts play the primary role in influencing Western defendants charged with domestic crimes to plead guilty, those same discounts often have relatively little effect on the guilty-plea decisions of various groups of international defendants. Indeed, whether the prospect of sentence leniency will motivate an international defendant to plead guilty depends on a number of eclectic and sometimes unexpected factors, including the nature of the crime, the nature of the prosecutorial selection process, the background of defense counsel, the status and education of the defendants, and the defendants' cultural views about crime and its appropriate punishment. The study in its entirety reveals that the wholesale transplantation of plea bargaining practices that successfully procure guilty pleas in the context of domestic prosecutions is likely to prove inefficient and ineffective in the context of many international prosecutions.

Subgame Perfect Plea Bargaining in Biform Judicial Contests

The judicial process is modeled as a biform contest with riskaverse contestants. I provide a sufficient condition for a nonempty core and show that the effect of the severity of the charges on the core is ambiguous. I also show that the practice of plea bargaining actually applies Moulin's (1984) mechanism which non-cooperatively implements the Kalai-Smorodinsky (1975) bargain solution in subgame perfect equilibrium. The charge reduction rate is inversely related to the defendant's and positively related to the prosecutor's fear of ruin index, but increases with the defendant's stake, implying that the defendant's gain (and social cost) from the guilty plea deal increases with the severity of the crime.

“Plea bargaining” em processos envolvendo grandes corporações alemãs – estudo empírico. Julgamentos negociados

In August 2009, the German Parliament passed a law that allows for plea bargaining, a fundamental change in the German Code of Criminal Procedure. Whilst the German practice of plea bargaining is harshly criticized by academic discourse, there is little empirical knowledge on the concrete course of plea bargaining negotiations. This study seeks to provide an insight into the precise course of plea bargaining negotiations in an effort to reveal the normative order that underlies plea bargaining proceedings in corporate criminal trials. Interviews with the participants of major German corporate criminal proceedings show that trust and diplomacy characterize the beginning of plea bargaining negotiations. These negotiations mostly take place secretly, but in major corporate criminal proceedings, the general public is informed about the plea bargaining, because the legal practitioners want to maintain the public‘s trust in the justice system. Plea bargaining can be seen as an effort to maintain basic tenets of criminal procedure and to enforce principles of criminal law even in complex corporate criminal cases.

The Global Practice of Plea Bargaining and the Nigerian Legal System

Plea bargaining is now a global feature in the administration of Criminal Justice the world over. The trend is of such a tsunamic force that nations whose Legal Systems hitherto does not recognize the concept of a plea in criminal prosecutions are now developing, evolving and coining various concepts to accommodate a form of lea bargaining in their legal system.Plea bargaining is a practice in a criminal proceeding whereby the accused is induced to plead guilty to a charge in return for a lesser sentence or dropping of some charges or both.The concept seems nouveau in the scope of principal Nigerian criminal legislations and case law. The practice is really gaining ground in the Nigerian criminal justice process in Lagos state and more especially, in the prosecution of financial crimes undertaken by the Economic and Financial Crime Commission (EFCC). This notwithstanding, the question however, how does the concept intend to socialize withe the Nigerian Legal System and the populace as a whole?The paper is an attempt to find a rendezvous between the concept of plea bargain and the Nigerian Legal System. This paper set forth the substance of the global concept and practice of plea bargaining from a perspective that is holistic and with an unbiased jurisprudential basis. It is hope to show that it is illuminating against the background of the Nigerian jurisprudential dynamics and hybrid legal system.

The Practice of Plea Bargaining and its Effect on the Anti-Corruption Crusade in Nigeria

The world we live in is just one of the worlds. The world of the animals has never been faced with the shortage of means of sustenance. Hence, our present conundrum is a product of our machinations. The brain behind our present predicament is the evil corruption which has eaten deep into the fabrics of our society. Corruption is every where. It is clearly and visibly written in the air. We are all victims of one corrupt practice or the other. Corruption is not peculiar to Africa. It is common to all governments and countries of the world. Its effects are more visible here simply because, the rate at which it is operated is beyond imagination and the enforcement machinery has been compromised especially recently with the increasing instances of plea bargaining introduced into its prosecution. This work will analyze the incidence the incidence of corruption in Nigeria, the havoc it has caused on the society and the attempts made by government at curbing it. The insurgence of plea bargaining in our criminal justice system will be considered and its effect on the anti-corruption crusade.

The Impact of Arizona's Mandatory Drug Treatment Law on Prosecutorial Plea Bargaining in Drug Cases

Passage of mandatory drug treatment laws continues, but research has yet to examine whether imprisoned low-level offenders (e.g., possession, use, and paraphernalia offenders) may be the product of negotiated plea arrangements. We examine the extent to which prosecutors adjust drug offense seriousness through plea bargaining practices in response to the passage of Arizona's mandatory drug treatment law. A sample of incarcerated drug offenders in Arizona was constructed and data were collected from prosecution and sentencing case files in four counties. Findings show plea bargaining practices play a significant role in the classification and imprisonment of low-level drug cases. Incarcerated marijuana offenders were not first- or second-time offenders, nor were they treated more harshly than other drug offenders. Imprisoned low-level offenders have serious and extensive criminal histories, yet the effect of prior record in plea bargaining outcomes is different pre- and post-mandatory drug treatment. Policy implications regarding plea bargaining practices of drug offenders are discussed.

Retributivism and Plea Bargaining

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. …

The Ethics of Plea Bargaining in International Criminal Trials

The paper argues that contemporary theoretical and philosophical concerns relating to the practice of plea bargaining in international trials for crimes such as genocide should be seen in the broader context of the perceived legitimacy of international trial justice. The paper questions the capacity of international trial structures to deliver a form of truth which contributes to justice suggesting that the legitimacy of the truth available is conditioned by ideology and normative practice. The paper suggests that the key to transforming international trial justice lies in promoting the link between trial ideology and the perceived moral legitimacy of its outcomes through the exercise of judicial discretionary power.

Plea Bargaining Practices: Less Covert, more Public Support?

Although a common practice in many legal systems, plea bargaining (PB) tends to be held in low esteem by the public at large. In the present study, which was based on a survey of a national sample of Israeli respondents, a factorial design methodology was used to examine public attitudes toward varied PB scenarios. It was hypothesized that opening up PB procedures to parties other than the traditionally involved “insiders” would enhance public support for PB. The findings of the study generally confirmed this hypothesis, albeit not completely: The effect of decreased covertness was minimal. This article concludes with a discussion of the policy implications of the findings.

Defence Perspectives on Sentencing Practice in the International Criminal Tribunal for the Former Yugoslavia

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.

The Relationship between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach

The settlement of criminal cases through bargained guilty pleas has been the focus of increasing research interest over the past few decades. Generally, a plea bargain is reached through an informal process of negotiation in which the prosecutor and the defense counsel reach an outof-court settlement. In such a settlement, the defendant admits guilt in return for some concession on the part of the prosecution (e.g., reducing the number and/or seriousness of the original criminal charges, or recommending a more lenient punishment than would otherwise be expected). From the prosecutor's viewpoint, plea bargaining results in speedy and certain conviction, especially when the evidence against the defendant is somewhat weak, thereby avoiding the possibility of acquittal in court, not to mention cost of the trial in terms of time and resources. From the judge's point of view, plea bargaining reduces the workload of the court. Research suggests that benefits such as these have led to increasing resort to plea bargaining. Indeed, in some jurisdictions, a vast majority of criminal defendants plead guilty after negotiation between the parties as a matter of course.'

Pleading Guilty and Professional Relations in Australia: Comment

Thirty-five years ago, plea bargaining in the United States was not acknowledged or dis cussed publicly; it was the criminal justice system's little secret (Newman, 1966). Doubts existed about whether it was constitutional, and it clashed with the image of the courtroom as a place where prosecutors and defense attorneys engage in legal battles as the jury watches truth emerge from the courtroom combat. Scholars (Heumann, 1977; Friedman and Percival, 1981) have found that pleas have been a major means of disposing of criminal cases since at least the latter part of the nineteenth cen tury, and plea bargaining was endorsed by the U.S. Supreme Court in the 1970s (North Carolina v. Alford, 1970; Santobello v. New York, 1971). For many, however, plea bargaining conjures up visions of coerced defendants in a marketplace where justice can be bought and sold (Alschuler, 1968). In 1967 the President's Commission on Law Enforcement and Administration of Justice observed, Few practices in the system of criminal justice create a greater sense of unease and sus picion than the negotiated plea of guilty (1968:9). In 1973 the National Commission on Criminal Justice Standards and Goals called for the abolition of plea bargaining (1973:26), a policy adopted in states such as Alaska, California, and Tennessee and in some county prosecutor's offices. However, because of the importance of the practice to the court, prosecution, and defense, limitations on plea bargaining have been quickly cir cumvented. Foreign observers have been intrigued by the American practice of plea bargain ing. In Europe, where discretion is tightly controlled, criminal justice in the United States has often been likened to a bazaar where justice is for sale (Langbein, 1979). This was particularly true in the Soviet Union and Eastern Europe before the fall of the wall when visiting scholars were often taunted by remarks that plea bargaining exposed the fact that justice did not exist in America. When their hosts were asked why so many Russian/Polish/Hungarian defendants pled guilty, the reply was usually, They want a lighter sentence. But criticism was not limited to the Continent. When the pioneering work of Baldwin and McConnell (1977) described plea bargaining in England and Wales, news paper editorials raged and questions were asked in the House of Commons as to why this blot on British justice was being made public. Plea bargaining is not officially permitted in Australia (Biles, 2000), yet it does exist. As Anleu and Mack emphasize, pleading for considerations is widespread

The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860

One striking feature of American courts is the widespread practice of plea bargaining. Paradoxically, the practice rewards precisely those who appear guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American republic. Amid social conflict wrought by industrialization, immigration, and urbanization during the Age of Jackson, politicians acutely realized the potential for revolution in Europe. Local political institutions being spare and fragmentary, the courts stepped forward as agents of the state to promote social order necessary for healthy market functioning, personal security, and economic growth. Plea bargaining arose during the 1830s and 1840s as part of a process of political stabilization and an effort to legitimate institutions of self-rule—accomplishments that were vital to Whig efforts to reconsolidate the political power of Boston's social and economic elite. To this end, the tradition of episodic leniency from British common law was recrafted into a new cultural form—plea bargaining—that drew conflicts into courts while maintaining elite discretion over sentencing policy.