What is a Plea Bargain?

One of the most common and controversial practices in the criminal justice process is plea bargaining. There have been varying definitions of plea bargaining over the years. The 1975 Law Reform Commission of Canada defined it as “any agreement by the accused to plead guilty in return for the promise of some benefit,” however this definition was widely criticized. Critics believed that the definition implied that justice was not the ultimate goal, but rather a guilty plea. Plea bargaining involves the defence counsel and the crown prosecutor. Despite the victim’s stake in the sentence of the accused, his/her role is minimized in this practice. It is not necessary to obtain the consent or approval of the victim when plea bargaining, however some prosecutors choose to involve the victim in the discussion at their own discretion. Due to the negative connotation associated with the term plea bargain it is also referred to as plea discussions, resolution discussions, plea negotiations and plea agreements. Regardless of the term used, this practice has become the most common means of prosecuting criminal offences in Canada.

The essence of plea negotiations is sentence reduction in return for a guilty plea, but it is influenced by many uncertain elements such as the quality of the relationship between the defence lawyer and the Crown and the cooperation between the suspect and the police. It can occur at any step in the criminal trial process but it most commonly occurs early on. Defendants are also frequently isolated from, ignorant of, or confused by this “behind-the-scenes” process dominated by lawyers. Judges are included at times, but plea discussions mainly involve the defence and crown.

The Department of Justice Canada describes the elements of plea discussions as, “charge discussions, procedural discussions, sentence discussions, agreements as to the facts of the offence and the narrowing of issues in order to expedite the trial.”

Charge Discussions may include:

  1. Reduction of the charge to a lesser or included offence
  2. Withdrawal or stay of other charges
  3. The promise not to proceed on other possible charges
  4. An agreement to stay or withdraw charges against third parties
  5. An agreement to reduce multiple charges to one all-inclusive charge
  6. The agreement to stay certain counts and proceed on others and to rely on the material facts that supported the stayed counts as aggravating factors for sentencing purposes

Sentence Discussions may include:

  1. A recommendation by a prosecutor for a certain range of sentence or for a specific sentence
  2. A joint recommendation by a prosecutor and defence counsel for a range of sentence or for a specific sentence
  3. An agreement by a prosecutor not to oppose a sentence recommendation by defence counsel
  4. An agreement by a prosecutor not to seek additional optional sanctions, such as prohibition and forfeiture orders
  5. An agreement by a prosecutor not to seek more severe punishment
  6. An agreement by a prosecutor not to oppose the imposition of an intermittent sentence rather than a continuous sentence
  7. The type of conditions to be imposed on a conditional sentence

Procedural Discussions may include:

  1. An agreement by the prosecutor to proceed by summary conviction instead of by indictment
  2. An agreement to dispose of the case at a specified future date if, on the record and in open court, the accused is prepared to waive the right to a trial within a reasonable time
  3. An agreement to transfer charges to or from a particular province or territory, or to or from a particular jurisdiction in a province or territory

After an agreement is reached there is still the matter of sentencing. The crown is responsible for providing the facts that could have been proven in trial and the accused must confirm that the facts proposed are accurate in order for sentencing to take place. When facts are discussed during the plea agreement, certain details that carry little weight concerning the overall event may be excluded if the defence and prosecution agree that they are irrelevant or embarrassing. These discussions do not always remove the need for a trial. In certain cases the charges or facts of the case may be excessive, making it necessary to decide what aspects of the crime will be discussed in court.

The Director of Public Prosecutions in Saskatchewan proposed a definition for resolution discussions that covers the wide scope of the term: “A proceeding whereby competent and informed counsel openly discuss the evidence in a criminal prosecution with a view to achieving a disposition which will result in the reasonable advancement of the administration of justice.”

Supporters of Plea Bargaining

“Supporters of plea bargaining view it as promoting efficiency, lessening the cost of eventual trial, avoiding lengthy appeals, and diminishing the overload on the justice system, but mostly as a process that leads to a better understanding of the offence and to fairer charges and as one that is closer to justice. The cost of abolishing plea bargaining and society’s willingness to pay the increased cost must be included in any serious consideration of the abolition of plea bargaining. In larger cities, eliminating plea bargaining would require more judges and even larger courthouses. Is society willing to pay for the additional judges, prosecutors, defence attorneys, and jury costs necessary if all cases are to go to trial or are only pleaded out for the original charge? The additional cost would be astronomical, and it must be recognized that this is a major factor in why plea bargaining exists.” (Plea Bargaining: Injustice for All?, 1998)

The defence of plea bargaining has generally taken three forms. First, many have concluded that plea bargaining is indispensable to the system of criminal justice – that without it, the courts would be overwhelmed by a mass of trials. A second defence is that plea bargaining is both legally permissible and morally acceptable, since both sides voluntarily engage in and benefit from the practice. Finally, some commentators suggest that the elimination of plea bargaining would be impossible because lawyers would continue the practice even if higher authorities tried to curb it.

Plea bargaining is indispensable to the system of criminal justice
  • One of the main elements of the law is that punishment should be swift, yet the court process is already much too long and drawn out. Given that trials can last weeks or even months, if plea discussions were abolished, our already overburdened criminal justice system would be rendered unable to keep up with the backlog of criminal trials.
  • “Plea bargaining eases the administrative burden of crowded court dockets” (President Johnson’s Crime Commission, 1967).
  • A landmark 1993 study (by the Martin Committee) commissioned by Ontario’s former NDP government endorsed the notion of plea bargains, saying that they are sometimes needed to streamline a slow and backlogged court system – “It is appropriate…to recognize these cases for what they are, and permit their resolution without the expense, inconvenience and trauma of a full trial” (Arthur Martin, retired judge who headed the study)
Plea bargaining is both legally permissible and morally acceptable
  • The basis of this argument is that plea bargains are entirely voluntary; all parties involved are stakeholders in the crime who agree to partake in a plea discussion.
  • In the United States, plea bargaining has been recognized by “criminal justice experts” and the Supreme Court as a valid, even necessary, exercise of discretion.
  • New York State Supreme Court Justice Carolyn E. Demarest (1994) holds the opinion that bargains are attractive, efficient and ethical and should not be viewed as a cop-out for the inadequacies or laziness of prosecutors, defence attorneys, or judges. She points out that testifying and cross-examination can be difficult for the young, the old, the fragile, or victims of rape or sexual abuse who frequently refuse to go to trial because of shame or embarrassment.
  • Many believe that one is better off plea bargaining and being sure of punishment rather than risking acquittal at trial. A plea bargained conviction is better than no conviction at all.
  • Defenders of plea bargaining argue that a negotiated settlement is not inherently less just or less accurate than the outcome of a fully litigated trial.
  • Without a trial, witnesses need not relive the event and are protected from being victimized by the criminal process.
The elimination of plea bargaining would be impossible because lawyers would continue the practice even if higher authorities tried to curb it
  • Without a change in the way of trying cases, the criminal justice system would be paralyzed without plea bargaining.
  • Many experts argue that plea bargaining has become a necessary part of the legal system, despite its imperfections.
  • Attempts to ban plea bargaining (especially charge bargaining) in Alaska, have been unsuccessful – plea bargaining, even when outlawed, is still practiced by the major actors in the judicial system.

Opponents of Plea Bargaining

Plea bargaining is very controversial and many condemn the practice as an injustice. Since plea discussions are often used in place of a trial, it is viewed as an infringement on the guaranteed right for due process guaranteed to all Canadians. Opponents are uncomfortable with the secrecy involved in plea bargaining and its lack of supervision. One of the strongest arguments against this practice is the fact that more lenient sentences are given out after an individual admits guilt. One of the main principles of sentencing is deterrence; the leniency given to offenders who plead guilty subsequently lessens the deterrent effect of punishment. Also, those wrongfully accused of crimes may be coerced into false confessions out of fear of being put through the criminal process.

Opponents of plea bargaining argue four central oppositions: (1) the injustice done to the innocent; (2) the injustice done to the victims; (3) the injustice done to the public (community); and (4) the disregard for the principles of justice and the principles of sentencing.

Injustice done to the innocent
  • Plea bargaining tends to extort guilty pleas from the innocent who may fear worse if they go to trial, causing them to waive their rights to such a trial
  • The wrongly convicted are subsequently victimized by the very system in place to protect them
Injustice done to the victims
  • There is much outrage at the thought of “bargaining” with criminals.
  • Many say that offenders are let off too lightly as a result of plea bargaining; that many bargains are unjust and socially harmful.
  • Simply acknowledging guilt does not satisfy a victim’s need for justice. Allowing a lesser sentence to be imposed sends a message to the victim that their experience carries little to no weight in the court process.
  • Both the sentence imposed and the absence of an opportunity to participate meaningfully frustrates victims.
  • Plea bargaining undermines victims who are stakeholders in the crime and the sentence imposed.
Disregard for the principles of justice and the principles of sentencing
  • “Justice should not be, and should not be seen to be, as something that can be purchased at the bargaining table” (Law Reform Commission of Canada).
  • Critics of plea bargaining tend to characterize the process as unnecessary, improper and degrading to our criminal justice system. They have criticized plea negotiations as being an unfair and secretive practice that manipulates the system and compromises its principles.
  • Being a largely unregulated practice, plea bargaining can be abused by the parties involved.
  • Plea bargaining is a triumph of convenience over justice and greatly weakens the credibility of the system.
  • Plea bargaining allows the guilty to escape with less punishment – not the punishment prescribed by the crime.
  • The Ontario Law Reform Commission (1973) referred to plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair, and public administration of justice”.
  • Two law professors here in Canada (Alan Young & Peter Barton, 1996) refer to plea bargaining as an underground practice that is not governed by the law, but rather by discretion.

Safeguarding the Practice

After analyzing the benefits and harms involved in plea bargaining, it is clear that both viewpoints have valid arguments. Abolishing the practice entirely would not be conducive to a functioning criminal justice system. Therefore safeguards must be put into place to ensure that plea discussions are not abused. The Department of Justice Canada describes principles that must be adhered to in order for plea bargaining to be a fair and efficient alternative to the criminal trial.

  • complete and timely disclosure of prosecution’s case
  • competent and ethical defence counsel
  • prosecutor to initiate plea discussions and communicate best offer to accused early in the process
  • comprehensive knowledge of principles of sentencing and appropriate ranges of sentences by court, prosecutor and defence
  • prosecutor to maintain complete and accurate record of discussions to promote consistency and transparency
  • openness: prosecutor to solicit views of victim and investigative agency and ensure their understanding of the agreement; prosecutor to formally advise the court of the agreement reached
  • fairness: agreements to be honoured by the prosecutor
  • judicial independence and impartiality

Conclusion

Plea bargaining is a complex phenomenon, and within this controversial topic there appear to be no easy, clear-cut answers. Plea bargaining seems to vary between, and even within, jurisdictions, being largely an unregulated practice in Canada. A major obstacle to a more clear understanding of plea bargaining is a lack of research.

Throughout this discussion of plea bargaining have been a few central issues. These issues include:

  1. the role of plea bargaining in our criminal justice system
  2. the participants in the process
  3. the justice and injustice of plea bargaining

To bring this discussion to a conclusion, we will touch on these issues again.

  1. The role of plea bargaining in our criminal justice system
    Aside from determining guilt or innocence, the most important decision made by the courts is sentencing. In order to set legal precedents, the courts must look at the issues of the case when determining guilt or innocence. However, because many cases are decided through plea bargaining, these issues are not always taken into account. Judges can hand down a wide range of sentences, even for the same offence and for similar circumstances, and plea bargaining accounts for much of this variation. There are those who strongly feel that without plea bargaining, our justice system would collapse. Perhaps it is impossible to completely erase plea bargaining but alternatives are available that could cut down on its use.
  2. The participants in the process
    Since attorneys are the frontrunners in plea bargaining, central actors in the crime are excluded from the discussions. Speed and cost are clearly important issues. However, it must be questioned whether they are more important than the well-being of the victim and the defendant. Certainly the victim has the right to be informed of the nature of the case, and to be able to contribute meaningfully to it. Participation by the victim in the sentencing process should be encouraged (either directly through testimony or indirectly through a statement prepared by a probation or police officer).
  3. The justice and injustice of plea bargaining
    The reality of the situation is that the judicial system works for the convenience of the legal profession, rather than for the justice sought by victims, by defendants, or by the public. Plea bargaining itself may not be unethical, but some of the tactics used by the bargainers and some of the aspects of the process itself are unethical and, in fact, an injustice to all those involved. While a reasonable plea bargain will take a dangerous individual out of society for some time, it is nevertheless important to remember that the prosecution should seek, not simply a conviction, but justice and truth.

Piccinato, Milica. 2009. Plea Bargaining. Department of Justice Canada http://www.justice.gc.ca/eng/pi/icg-gci/toc-tdm.html