International Criminal Justice, Comparative Sentencing and Penology - Essay Example

1. Discuss the impact of plea bargaining on trial justice from a comparative perspective In order to be able to discuss the impact of plea bargainingon trial justice it is necessary to look briefly at what plea bargaining is all about and when it is likely to be used. From the perspective of the offender plea bargaining can result in shorter sentences and lesser charges for the crimes they have committed. On the criminal justice side plea bargaining can increase detection rates on crimes and make the court procedure shorter. Many offenders are prepared to admit to several other offences if they are guaranteed a lesser charge then would normally be charged. This frequently occurs in drug cases where defendants refuse to plead guilty to supplying drugs but will accept a charge of handling or possession of them. In a lot of these cases the police will actually be more concerned in finding the main drug dealer rather then the ones that have been engaged to deliver the goods. In some cases a plea for a lesser charge is allowed when the offender is prepared to offer evidence against the main perpetrator. Plea bargaining involves negotiation between the defendant and the prosecution and can involve the negotiation of a lesser sentence in return for admitting guilt or co-operating in another criminal case. This can involve providing information on co-accused’s (Feeley, 1979) Problems have arisen in the past with plea bargaining such as innocent parties being persuaded to enter a plea of guilty for fear of a severe penalty if the case proceeds to court and they are found guilty. The public are also wary of plea bargaining as the acceptance of a plea for a lesser offence could lead to an habitual or particularly violent offender being released sooner then they should have been. Some members of the public also believe that plea bargaining treats people unfairly and belittles the suffering of victims in some instances. Although to a great extent plea bargaining is generally used in adversarial systems the principles are beginning to be used in International Tribunals. The Yugoslavia Tribunal rejected the notion of plea bargaining at the beginning. This tribunal was the first of its kind since World War II. The Yugoslavia Tribunal made the point that plea bargaining was inconsistent with its purposes in this situation and that the crimes they were dealing with were too reprehensible for a plea to be negotiated (Morris and Scharf, 1995). The same policy was adopted by the Rwanda Tribunal who sentenced Jean Kambanda to life imprisonment even though he had pleaded guilty to genocide1. In recent times as caseloads have grown there has bee a move towards accepting plea bargaining. In 2003 the trial of Mrs Plavsic for atrocities committed against Bosnian Muslims accepted a plea of persecution as opposed to the original charge of genocide2. As a result she was sentenced to 11 years in prison. This verdict provoked mixed reactions with some welcoming it as a step towards reconciliation whilst others criticized the court for having greater concern for the judicial economy rather then the interests of the victims (Combs, 2007). Although justification can be given for the use of plea bargaining in particular concerned with the financial saving of the judiciary many victims fail to be convinced that this is acceptable. Many want to see proper retribution for the crimes committed and see the acceptance of plea bargaining as ignoring the suffering of the victims so as to ensure the financial prosperity of the judiciary (Dressler, 1995). The issue of plea bargaining came into focus in 1980 in an article in the New Haven Register. This article reported the plea of Ron Neuhauser who entered a plea of guilty to first degree manslaughter and second degree kidnapping. As a result of his plea he was sentenced to between 10 to 20 years. This would make him eligible for parole within 7 years. Many who lived in the town where the girl had been kidnapped from felt that the sentence was too light. The New Haven Register made the comment that the sentence did no represent justice. Many complained that plea bargaining in this manner subverts justice by guaranteeing a lighter sentence for those who plead guilty. They argued that such lenient sentences make a mockery of the right of the citizen to be safe. Radical critics asserted the belief that the criminal justice system is stacked against the poor who cannot afford bail or expensive lawyers. In the case of Santobello v New York (1971) Chief Justice Warren Burger made the observation that The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea-bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. (Current History (July/August, 1976, p. 12) In Conscience and Convenience (1980) it was noted by David Rothman that plea bargaining had developed to make life easier for criminal justice system administrators. Plea bargaining has been justified on the basis that using this helps to prevent the courts from becoming so full they are unable to function properly. According to reports the pros of plea bargaining outweigh the cons. Despite this many are still unhappy when plea bargaining is allowed to happen. In the Guardian (2000) Jo Evans expressed her anger at the court accepting a plea to indecent assault and allowing him to be freed and be given an 18 month suspended sentence. Unknown to the victim the defence and prosecution had met with the judge and made a deal. The defendant in this case agreed to plead guilty to 9 charges but only if they could be sure they would not be sent to prison. Lord Justice Rose criticised this action stating that the sentence was lamentable. As the crown had made representations that the defendant would avoid jail if he pleaded guilty they were not aloud to change their minds despite the objections of many. In a crown court survey carried out in 1993 by the Royal Commission on Criminal Justice a significantly high number of barristers and judges admitted to some form of plea bargaining in relation to charge or sentence. Lord Justice Auld challenged this practice and suggested that there should be a formal system in place and this system should be clearly defined. This system has been favoured by the Criminal Bar Association and the Royal Commission on Criminal Justice. Within the criminal justice system in the USA approximately 90% of convictions are the result of negotiated pleas (McCoy and Mirra, 1980). Studies into plea bargaining have been carried out mostly considering the benefits of such pleas in economic terms. Landes (1971) looked at the way in which plea bargaining benefits both the prosecution and the defence in economic terms. His conclusions were based on the assumption of cases that would involve long drawn out court proceedings and masses of evidential material. Such cases are likely to require expert opinion as part of the trial procedure and so it is obvious that if the defendant can be persuaded to plead guilty a significant amount of money would be saved. Adelstein (1978) concluded that the more costly the trial process would be the greater benefit to be able to persuade the accused to plead guilty. McCoy and Mirra (1980) argue that the due process clause contained within the 14th amendment has the effect of prohibiting the state from penalising an accused for exercising their constitutional right. In their article they hold the opinion that the withholding of a benefit or the imposition of a punishment in order to obtain a confession is an abuse of due process. The use of such methods has become to be know as the unconstitutional conditions doctrine3. Under this doctrine the state gives the accused a reduced sentence in return for their foregoing of a right to trial and a right not to incriminate themselves. Criticism has been made of the plea bargaining system. Alschuler (1968) found that there was sometimes a tendency on the part of prosecutors to overcharge the defendants in order to make the reduced charge look more appealing. He also noted that in some instances judges would be encouraged to mete out harsher sentences for those who refused to enter a guilty plea. Rosett (1967) recognised that a skilled defence lawyer could often force a prosecutor to bring a case to trial. The cost of such trials and the delay involved in bringing the cases before the courts has frequently led an accused to plead guilty. In statistics produced by the Administrative Office of the US courts4 the concessions given to those entering a guilty plea are significantly different to those who opt to go to trial. Historically defendants have been discouraged from entering guilty pleas both in America and in England5 (Hale, 1736, Archbold, 1824). In Wight v Rindskopf6 the court held the view that litigation was ‘the safest test of justice’. Over the centuries there has been a significant rise in guilty pleas. It has been noted that towards the end of the 19th century guilty pleas had overtaken trials (McConville and Mirsky, 2005). In McConville and Mirsky they noted that plea bargaining had gained in popularity and that guilty pleas seemed to develop as a time saving exercise. They also noted that the use of guilty pleas seemed to appear virtually overnight. In their opinion plea bargaining was part of the growth of new criminology. This new criminology focussed on the link with the propensity to commit a crime and the race, class and ethnicity of the accused. Their evidence to support this theory came from the archives of cases in the Court of General Sessions in New York,. In their research they examined over 1,000 files during the early part of the nineteenth century and the latter part. The looked at the criminal justice system at that time as well as the types of criminal offences, detection and investigation and the litigation practice. The pattern of guilty pleas seemed to coincide with lesser sentences which suggested that discounts were being offered for negotiated pleas. The emergence of the negotiated plea has seen a dramatic rise in the use of this as opposed to going to trial (Newman, 1966). One of the reasons given for the increased use of guilty pleas is the excessive rise in crime levels7. A further impact has been made by the increase in the criminal offences that a defendant can now be charged with. Some of these offences which are now deemed to be crimes were previously not subject to criminal charges (Allen, 1964). Trial lengths have also substantially increased8, which in some cases where the accused is being held on remand, has resulted in the accused spending considerable time in prison. In some cases the judge might not imprison the defendant at the end of the trial. This could happen if there is a problem with the file such that all charges are ordered to be discontinued. In these cases defendants could theoretically sue the police for false imprisonment. In some cases the accused might spend time in prison awaiting trial for an offence where the judge would not be minded to issue a custodial sentence. Alschuler (1968) identified four types of plea bargaining within the courts. These were implicit bargaining, charge reduction, judicial bargaining and sentence recommendations. Miller et al (1978) reported a trend in the use of charge reduction combined with sentence recommendation. With implicit bargaining the defendant pleads guilty to the charge as it stands in the hope of sentence reduction for pleading to the charge thereby saving the cost of a trial. In an implicit plea bargain the accused is at risk of having no sentence reduction granted at all and also loses the chance to offer a defence for his actions. Charge reduction involves the prosecutor in re-examining the original charge and proffering an alternative charge in return for a guilty plea. In these cases the defendant has the option of pleading guilty to the lesser charge and ensuring a conviction or of taking a chance that the court will acquit him of the original charge if the case proceeds to a trial. In essence charge reduction removes the option from the judge to find the accused guilty of the original charge and has been criticised as frequently the alternative charge does not reflect the seriousness of the original crime. This is particularly noticeable in murder cases where the prosecutor opts to accept a plea of manslaughter as opposed to the original charge of murder. This reduction means the option of sentencing the accused to a life sentence will not be available to the judge. With a life sentence the accused remains on life licence until he dies. With manslaughter the accused is released back into society once the conviction is spent. With a life licence the accused can be sent back to prison for any future misdemeanour’s not matter how insignificant they might be. In manslaughter there is no such option and the accused would be subject to court procedures with every new offence being treated as a different crime. With judicial plea bargaining the judge will give an indication to the defendant of the punishment he is minded to award if the defendant pleads guilty. This gives the defendant the option to consider whether to enter a plea or not. This can be beneficial to the accused as they are aware of the penalty involved before plea. This might persuade some to plead guilty especially if the prognosis is better than the accused first believed it was going to be. Judge’s can renege on the agreement though few rarely do. With sentence recommendation the overall viewpoint seems to be that the prosecutor assumes the role of the judge by offering the accused a lesser sentence. The offer of the lesser sentence can often sway a defendant to making a guilty plea. Alschuler (1976)commented that ‘ most trial judges look for guilty pleas the way that salesmen look for orders.’ As a result of this judges might inadvertently allow an accused to get off with a more serious charge. Alschuler surmised that defendants plead guilty in expectation of a lesser charge or sentence or through fear of being given the maximum sentence allowable if they take the chance of proceeding to full trial. Heumann (1978) challenged the assertion that increased caseloads made it more likely for plea bargaining to be deployed. The obvious problem highlighted by the increase use of plea bargaining is that violent criminal might evade the sentence they would have received. This could lead to further incidents involving those defendants. There have been a number of cases where plea bargaining has led to the early release of some offenders, who have subsequently attack another victim shortly after release. In one such case in Australia those responsible for the release of Kevin Presland were sued by the defendant for failing to do their duty to keep the defendant in the care of the institute. Six hours after his release from prison Presland killed a 25 year old female. He was found not guilty of the murder by reason of mental illness. Presland was awarded damages for distress and economic loss experienced whilst he was held on remand awaiting trial.’ One area in which plea bargaining appears to be extensively in use is in the international criminal justice field. Within Yugoslavia the initial rejection of plea bargaining appears to have been forgotten with a dramatic rise in the use of the plea. In Prosecutor v Deronjic9 the judges were concerned that a guilty plea would promote rehabilitation of violent offenders back into society. In recent times the international courts have encouraged plea bargaining10. The use of plea bargaining has been criticised in the international tribunals as in some cases the lesser pleas were entered for really serious offences. In particular cases involving genocide have been substituted for lesser charges. For obvious reasons those directly involved with the victims that had been killed have complained of the unfairness of plea bargaining as the subsequent charges to which the defendants pleaded is far from the correct charges they should have faced. Despite the criticisms the ICTY still maintains that guilty pleas should be a significant factor in sentence reduction11. The ICTY maintains that the use of plea bargaining encourages defendants to come forward12. Although the ICTY states that the goals of punishment are retribution, deterrence and rehabilitation the primary aim is retribution13(Drumbl, 2005). Plea bargains do not co-exist very well as the punishment meted out for those who admit their guilt or who plead to a lesser charge do not equate with the sentence that would have been given if a deal had not been struck. A further anomaly occurs where the perpetrator is allowed a lesser plea for assisting in the prosecution of others who have been involved in the enterprise. In many cases such informants are given a much better bargain then those who cannot offer such information14. This policy is at odds with the criminal justice system whose purported aim is to deter further crime and discourage recidivism. Such lenient punishments only serve to reinforce the notion that the way to avoid severe punishment is to be able to offer the authorities significant evidence against another. The ICTY promotes the fact that a victim avoids having to testify after a plea bargain as a positive element15. However the reality is that some victims feel that testifying will have a cathartic value on them. By denying them the right to testify some victims feel let down. Testifying satisfies the human desire for vengeance and allows the victim to make a personal contribution to the sentence passed on the accused16 (Fenwick, 1997). Despite these arguments the ICTY still feels justified in allowing plea bargaining reinstating the fact that as a result of its usage more people are being convicted then would be the case if plea bargaining where not available. The case of Plavsjic prompted much outrage when he was allowed to plead to a lesser charge. In this case the defendant has been involved in the planning of the gravest atrocities ever committed in Bosnia. As a result if his involvement 850 non-Serb villages were destroyed, non-Serbs were forcibly expelled and many people were destroyed or sexually assaulted17. For his part in these atrocities a term of 11 years imprisonment was awarded. The provoked outrage amongst those affected. Scharf (2004) found in his studies that International Criminal Tribunals are increasingly using plea bargaining as a means to manage their expanding caseloads. In the beginning they mainly used sentence bargaining but since Plavsjic charge bargaining has been on the increase. Allowing crimes such as genocide to be watered down to a charge of persecution has caused reaction from those effected by the killings. Scharf believes that charge bargaining violates the spirit but not the letter of the international duty to prosecute and issue proportionate sentences for certain international crimes. In his article he challenges the functional necessity of charge bargaining and makes it clear that in his opinion it is not functional and that it also distorts the historic record of the tribunal. He goes on to offer recommendations for making plea bargaining more compatible with the purpose of the international tribunal. The conclusion that stems from the above is that whilst plea bargaining can benefit the criminal justice system in some ways the aims of the criminal justice system are not always achieved as there is an imbalance in the sentencing of the courts in reflection of the co-operation of the police. For some the use of plea bargaining has little effect either for the defendant or the victim as there is quite a high possibility that the defendant will continue to flaunt the law. Plea bargaining would be useful in some instances and should therefore be maintained. However, further work is still to be done to prevent a perpetrator from using the system to avoid full punishment. Bibliography Alschuler, Albert W. 1968. “The prosecutor’s role in plea bargaining.” University of Chicago I dw Review 36:50-112. Alschuler, Albert W. 1975. “The defense attorney’s role in plea bargaining.” The Yale Law Journal 84:1179-314. 1976. “The trial judge’s role in plea bargaining.” Columbia Law Review 76 (7).1059-154. Alschuler, Albert W. 1979. “Plea bargaining and its history.” Law and Society Review 13 (2) :211-45. Combs, N A, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach Vol. 17 No. 10 (October, 2007) pp.796-799 Stanford: Stanford University Press, Combs, N A, Prosecutor v Plavsic 97 American Journal of International Law (2003)929-937 Dressler J, Understanding Criminal Law 2nd ed 1995 new york p10-13 Feeley, M M, Perspectives on Plea Bargaining 13 law and society review1979 p199 Feeley, M. 1979. The Process is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation Grossman, G M, & Katz Plea Bargaining and Social Welfare The American Economic Review, Vol. 73, No. 4 (Sep., 1983), pp. 749-757 Hale, 1736. M. Hale , History of the pleas of the Crown. (1736) London, Newman, Donald J. 1966. Conviction: The Determination of Guilt or Innocence Without Trial. Boston: Helen Fenwick, Procedural Rights of Victims of Crime: Public or Private Ordering of Heumann, Milton. 1978. Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Lawyers. Chicago: University of Chicago Press. Joshua Dressler & George C. Thomas, II, Criminal Procedure 992 (2d ed. 2003) Little, Brown, and Co. Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 North Western U: Law Review, 539, 577 (2005) Maynard , D , Defendant Attributes in Plea Bargaining: Notes on the Modeling of Sentencing Decisions Social Problems, Vol. 29, No. 4 (Apr., 1982), pp. 347-360 McDonald, W F From Plea Negotiation to Coercive Justice: Notes on the Respecification of a Concept Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining (Winter, 1979), pp. 385-392 Morris, V & Scharf, M P, An Insiders Guide To The International Criminal Tribunal For The Former Yugoslavia (1994) p.59-60 Morris, V & Scharf, M P,, An Insiders Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis Irvington-on- Hudson, NY: Transnational Publishers, 1995. Reforming the Criminal Justice System” A Symposium in Current History (July 1976). Rosett, Arthur and Cressey, Donald. Justice by Consent (New York: Lippincott, 1976). Rothman, D Conscience and Convenience (Boston: Little, Brown, 1980). Ryan, J P , Adjudication and Sentencing in a Misdemeanor Court: The Outcome is the Punishment Law & Society Review, Vol. 15, No. 1 (1980 - 1981), pp. 79-108 Maynard, D, Social Order and Plea Bargaining in the Courtroom, The Sociological Quarterly 24 (Spring, I983):233-215 Criminal Justice Process, 60 Modern Law Review, 317 (1997). Landes, W M (1971), ‘An Economic Analysis of the Courts’ http://www.zwire.com/site/news.asp?brd=1281 Michael P. Scharf, Trading Justice for Efficiency Plea-Bargaining and International Tribunals, Journal of International Criminal Justice 2004 2(4):1070-1081 Mike McConville and Chester L. Mirsky,Jury Trials and Plea Bargaining: A True History, (Oxford: Hart Publishing, 2005 Read More