Canute S. Thompson
The issue of plea-bargaining was brought into public discussion some months ago in a matter involving a local politician and a co-accused. The matter has once again been brought into the spotlight with a reported declaration by High Court Judge Martin Gayle carried in The Sunday Gleaner of April 19, to the effect that plea-bargaining would significantly reduce the backlog of cases and save judicial time. This issue is worthy of public debate.
A plea bargain is an agreement between the prosecutor and the accused in which the accused pleads guilty in exchange for a lesser sentence or a reduced charge. In practice, either side may begin negotiations over a proposed plea bargain, though obviously, both sides have to agree for it to happen.
Plea-bargaining has not yet been enacted into law here in Jamaica but was approved by the Senate and the House of Representatives in 2005 by a unanimous vote under what is called the Criminal Justice (Plea Negotiations and Agreements) Act, 2005. If enacted, the legislation would give the director of public prosecutions (DPP) legal authority to engage in discussions and make bargains with an accused. The measure was introduced here in Jamaica in order to give the State greater room to deal with organised criminal gangs.
The practice of plea-bargaining seems to be informed by practical considerations. I have a concern that issues of ethics seem missing from consideration. The practical considerations are:
(a) Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve.
(b) The prosecution saves the time and expense of a lengthy trial.
(c) Both sides are spared the uncertainty of going to trial.
(d) The court system is saved the burden of conducting a trial on every crime charged as the amount of time that would be involved in hearing all cases would be very onerous for the public.
While the practicality of these considerations cannot be overlooked, the seeming absence of a focus on the victims and the implications for the maintenance of law and order in the society as it relates to the social assessment of criminal action is unfortunate.
ISSUES OF ETHICS AND JUSTICE
The issues of ethics and justice that the practice of plea-bargaining raises includes:
(a) The charges against any accused are a matter of public information, but the bargaining is essentially a private process. Why should this be? Whose interest does a DPP serve when he/she enters the negotiations with an accused? Can a prosecutor really act in the interest of the affected party or parties when he/she is under no obligation to bargain in any one’s interest or when he/she may choose to bargain in the interest of some other party, whose interest may or may not be the public’s interest?
(b) Quite apart from whether there should be private bargaining is the more fundamental question of whether there should be any bargain at all. I have a deep sense that something is wrong when a person accused of a heinous crime is given the opportunity to manipulate the process by opting to offer up information on others (which is the real consideration in decision to enact the legislation) in exchange for leniency. What if an accused has layers of information needed by the State? He/she offers the first layer and lands a considerable reduction in the sentence, thereafter begins to tug at the prosecutor that he could do more for the system for an even better deal. The probable outcome is that this accused could then be out of prison sooner to enjoy the ill-gotten wealth. How does that serve the cause of justice?
(c) Plea bargains are also perceived as offering the accused a freedom of choice between a lesser and greater punishment in return for information or cooperation in further investigations against others. Does not the offering of that freedom of choice send the signal that the crime committed is not as crucial as it appeared and the capture or imprisonment of another more important than the crime committed by the one doing the bargaining?
(d) How does a prosecutor decide with whom to bargain? What are the criteria and who sets those criteria? Should there be a role for the public’s input?
There is a role for leniency and mercy but the process must be transparent. Plea-bargaining is not a transparent process.
Dr Canute Thompson is assistant vice-president at the International University of the Caribbean. He may be reached at firstname.lastname@example.org