1. Plea Bargaining

Much of the criminal law is focused on the criminal trial. In fact, criminal procedure is almost entirely focused on that moment where the defendant faces accusations. Popular perceptions are also that the trial is the center piece of the system and it arguably still is at least indirectly and as a point of reference. Finally, the trial is where protections for defendants operate at their highest level.

It is ironic, then, that especially in North America more than 90% of cases never go to trial, as a result of the practice of plea bargains. A plea bargain is essentially an agreement between the prosecutor and the defendant whereby in exchange for pleading guilt the defendant will obtain an advantage such as being convicted of a less serious charge or getting a more lenient sentence for the original charge. Plea bargains are extremely common and, although they exist 'in the shadow' of at least the threat of a trial, they rely on a quite different skill set for a lawyer. They also provide a unique opportunity to assess tensions at the heart of the criminal justice system, including between the fair trial rights of the defendant, the discretion of prosecutors, the interests of victims, and the goals of the system in general.

Plea bargains are a relatively recent invention. They can be seen as a response to delays in the system, and its tendency to develop "conveyor belt" tendencies over time. Every case that is taken off the judicial roster is a case that will not add to delays and consume significant resources. But there are advantages for other parties too. For victims, a plea bargain may offer the prospect of relatively swift justice and perhaps information about the crime; for witnesses it means they will not have to appear; and for defendants themselves, especially those who know themselves to be guilty, an opportunity to obtain a less onerous sentence.

The practice often began discreetly and was gradually recognized by the courts. Beginning in the US in the 1960s it was recognized as constitutional in the landmark US case of Brady, and has since gradually spread globally including in Canada. It has multiple facets and variants including, in Canada, the practice of joint-sentence submissions. Part of its justification lies in prosecutorial discretion: the Crown should be able to know what is best in the public interest. Plea bargains are sometimes described as contracts and, although the Crown will treat granting one as a matter of discretion, one cannot freely withdraw an agreement if it has been accepted

 As you will see in the Cook case, the Supreme Court is quite willing to make sure that the deal is upheld in the case of joint sentencing submissions, as long as it is in the 'public interest' to do so (conversely, deals will not be accepted that would bring justice into disrepute). Indeed, the system of plea bargaining would collapse very quickly if defendants thought they could not rely on it and were essentially 'tricked' into pleading guilty whilst getting nothing in exchange. It should also be noted that because plea bargains are agreed to by Crown and defense, they emerge from a process of negotiation and have a certain legitimacy (just as most contracts do).

Having said that, there have also long been significant concerns about the practice. One scholar has underlined the similitude of plea bargaining and the Western legal system's long reliance on torture in order to obtain the collaboration of the accused to his own punishment. From a prosecutorial side, as you will have seen in the Nixon case, there may be concerns that plea bargains excessively sacrifice the public interest. Indeed there are concerns about taking the contract metaphor too far. We saw in the session on the ethics of defending that the Homolka plea bargain caused quite a steer. It raised the possibility that the public's interest in certain shocking crimes being punished was short changed by deals with defendants who would then serve less than they should have. Of particular concern here is the possibility that victims be further excluded from the criminal justice system by a practice that occurs entirely inter partes, although some provinces now allow for the possibility of victim input even at that early stage (this is merely a consultation though). It may be, moreover, that some victims would actually like a trial and the opportunity to testify and are frustrated by a plea that leaves some facts in the dark or deprives them of the possibility of seeing the perpetrator in court. From a systemic perspective, one might think that pleas diminish the deterrent aspects of criminal law.

On a quite different note, there are concerns that the plea bargain may be used as a strategy to intimidate defendants into pleading guilty, for example by artificially inflating the charges before trial so that one can increase the anxiety of the defendant. In the process, plea bargains hvae long been suspected of being a factor that contributes to discrimination in the criminal justice system, notably against defendants who are likely to believe that the decks are already stacked against them. At the very least, plea bargains should be voluntary and with full knowledge of the ramifications. One concern in this context is the absence of a formal procedure in Canada for plea bargaining. Parties are not even required to disclose the existence of a bargain to the judge. Strikingly, given how much rests on the practice, it still occurs somewhat in the shadows. This makes it less likely that respect for the rights of defendants will be protected. One can also rely on prosecutorial ethics and the fact that the Crown is an officer of the court as a factor that should mitigate plea bargains illiberal effects, but it is worth noting that in the trial context we have reason to be wary of prosecutorial ethics alone. We now have enough of an empirical record of studying plea bargains to know that they have often played a role in convicting the innocent.

One can analyze plea bargains as involving a transfer of power from the judge to the parties themselves. On the one hand this seems consonant with the adversarial logic; on the other hand it opens up the possibility of an adversarial process that occurs largely beyond judicial reach. Although pleas are negotiated by defense counsel, one must hope that lawyers are not simply eager to move on to the next case and will advise their client to go to trial if they think they are innocent. It is not inconceivable that the hard bargaining of a plea bargain would give way to a sort of collusion between professionals on either side of the adversarial divide. Prosecutors are given a remarkable amount of power by plea bargains, and there are concerns that they may usurp the judicial function in determining what kind of sentence defendants should get, and in the process subvert the right to a fair trial or short change victims and the public. One criticism is that plea bargains reward the guilty (who get an undeserved discount in exchange for giving up their right to trial) but punishes at least some innocent (who, notwithstanding that they are innocent, are now in a position where they run a significant risk if they go to trial and will be, in a sense, "doubly punished" if they are convicted).

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