Evolution of Plea Bargaining in US Judiciary: An analysis

Prefix criminal justic esystem, law and justice research foundation, ljrfvoice.com, Plea bargaining, US judiciary

This article intended to explore various stages through which plea bargaining evolved in US judiciary. Through this the authors tried to explore history and growth of plea bargaining in US judiciary. Plea bargaining in criminal justice system in US is an unavoidable factor and now the entire system may collapse without this. The article discusses on how crime commissions in discovered plea bargaining in 1920s, discoverers, their discoveries and how it impact on growth of plea bargaining. It also looks into the survey reports conducted in 1920s and their findings. By 1970s US Supreme Court itself recognizes Plea Bargaining in its criminal justice system through judgments in Brady v. United States and Santobello v. New York.

AUTHORS

CHAPTER 1

1.1 INTRODUCTION

Plea bargaining is a concept evolved in US in the 1920s (better speaking, it is discovered). The concept is not much common in India but widely applied in US. The same concept recently heard in India in relation to Tablighi Jamaat case, in which, members of the said organization from different countries have obtained release from court cases in recent days by means of plea bargaining. Accused of violating visa conditions by attending a religious congregation in Delhi, these foreign nationals have walked free after pleading guilty to minor offences and paying the fines imposed by the court¹. The case again gain attention of legal fraternity on the concept of plea bargaining, even though it doesn’t lead to a much wide discussion on the same. In India even though the practice of pleading guilty by offenders in criminal offenses prevalent over a decade, it is not being a common practice yet. Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. It is common in the United States, and has been a successful method of avoiding protracted and complicated trials. As a result, conviction rates are significantly high there. It primarily involves pre-trial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence. So in this project we are going to discuss about evolution of plea bargaining in US judiciary, the step by step evolution, major case laws paved way for evolution and the recent history of plea bargaining in US.

1.2 Statement of Problem

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or “no contest” (nolo contendere) in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence acceptable to the defense². When criminal courts become overcrowded in US, prosecutors and judges feel increased pressure to move cases quickly through the system. When trials take too much time, even days, weeks and months, the guilty pleas can often conclude the trial in a short time. And this ends up with time saving benefits along with other advantages makes plea bargaining an important factor in US judicial system. Through this research, we intend to find out how the plea bargaining system evolved in US judiciary and what all factors lead to its development.

1.3 Need and Importance of study

‘Justice delayed is justice denied’, the expression by William Ewart Gladstone is true to very meaning of it. Recently in Kerala, Sister Abhaya Murder case underlined the same saying, which took almost 28 years to do justice to the victim and her family, even her close relatives are no more. A delay in justice would result into various consequences to be suffered by the affected person; and hat would be a failure of justice. In this context we need to discuss the relevance of plea bargaining, which is a major part of US criminal justice system. Majority of criminal cases in the US are settled by plea bargain rather than jury trial. Even India through an amendment made to C.r.P.C introduced plea bargaining, to check the extend of success of plea bargaining system in Indian Judicial system we need to study about how plea bargaining evolved in US Judiciary.

1.4 Objectives of the Study

 To dig into the history of plea bargaining and its evolution
 To analyze discovery of plea bargaining
 To discover on recent history of plea bargaining.
 To analyze the major case laws relating to plea bargaining

1.5 Project Methodology

The methodology which will be used for carrying out the report as follows:

The project was conducted in descriptive form. The project is in form of Historical research. The project is entirely based on secondary data. Data is collected from various books, survey reports, newspaper articles, online resources, case laws etc… and citation for the same was provided in the report itself.

1.6 Chapter Schema

The whole chapter has been divided into

Chapter I – Introduction
Chapter II – Review of Literature
Chapter III – History of Emergence and Growth of Plea Bargaining in the US Judiciary
Chapter IV – Discovery of Plea Bargaining
Chapter V – Recent History of Plea bargaining in US
Chapter VII – Plea bargaining in India and US
CHAPTER VIII – Conclusion and Bibliography

CHAPTER 2

REVIEW OF LITERATURE

(Santhi, 2013) Through her study she point out even sixth amendment to US Constitution enshrines the fair trial principle, it did not mention the practice of plea bargaining. In her view classic case of adoption of plea bargaining is the case of assassination of Martin Luther King Jr, 1969 case, in which accused James Earl Ray pleaded guilty to the murder of Martin Luthar King Jr to avoid death penalty. He got 99 years of imprisonment. She further added that today the vast majority (roughly 90%) of criminal cases in US are settled by plea bargain rather than by a jury trial.

(Viano, 2012) In his article Viano reveals that American justice system does not reflect what really happens in courtrooms around the country. He further alleged that only very few criminal cases go to trial and about 97 percent of the criminal cases are resolved by plea bargains. In fiscal year 2010, the prevalent mode of conviction in U.S. District Courts of all crimes was by plea of guilty (96.8% of all cases). The percentage ranges from a relative low of 68.2% for murder to a high of 100% for cases of burglary, breaking and entering. With the exception of sex abuse (87.5%), arson (86.7%), civil rights (83.6%) and murder (68.2%), for all other crimes the rate of convictions by plea of guilty is well over 90%. In the recent U.S. Supreme Court decision, Missouri v. Frye (2012) , Justice Kennedy, writing the majority opinion, pointed out the statistics that 97% of federal convictions and 94% of state convictions are the result of guilty pleas.

(YOFFE, 2017) In her article author explains working of plea bargaining like this – “Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits.” Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

(Trivedi, 2020) In his article he criticizes plea bargaining and says that system lacks process, fairness, and often even rule of law. He cite some case laws to portray the ill effects of plea bargaining system. Plea bargaining would be an acceptable way to resolve criminal cases if it were a fair fight between prosecution and defense. But it’s not. Since roughly the 1970s and the accompanying War on Drugs, prosecutors have been handed — and in many cases lobbied for — increasingly punitive tools to pressure defendants to take bad deals. He further criticized that plea bargaining as practiced today has turned our criminal legal system into a cheap backroom shakedown. There is virtually no process, much less due process. Defendants’ lives are determined primarily by power dynamics and leverage, not facts and law. And it all occurs almost entirely behind closed doors, rather than in front of a judge, a jury, and the American public, as the Founders intended.

(Bhagyodaya, 2018) Through her article, author point out that no country in the world has a provision or application of plea bargaining as wide as in the USA. The practice of plea bargaining is so prevalent in the US that it is said that without plea bargaining the judicial system of the country would collapse and this is considered as a significant reason that the pendency in the criminal courts have fallen a significant percentage in the US.

(Sharma, 2018) In his small article he focused on evolution of Plea bargaining along with projecting its importance. The concept of plea bargaining in USA was recognized in 1970s as a formal procedure for the resolution of criminal cases. The concept was given the constitutional validity in the case of Brady v. United States (1970). Today, plea bargaining dominates most criminal cases in USA. Almost every criminal case is now conducted by Plea bargaining and today it is often understood that the American criminal justice system would collapse if plea bargaining is removed from it. In the year 2010, 96.8% of all cases in U.S. District Courts were decided by plea bargain. The percentage ranges from a relatively low of 68.2% for murder to a high of 100% for cases of burglary, breaking and entering, 87.5% for sex abuse, 86.7% for arson, 83.6% for civil rights.

(SIKIRU ADEWALE, 2019) In their study authors bring to light four types of plea bargaining: charge bargaining, sentence bargaining, count bargaining and fact bargaining. Charge bargaining is basically an exchange of concessions by both the sides which may also mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. Sentence bargaining is when a defendant agrees to plead guilty to the stated charge in return for a lighter sentence, i.e. where the accused, with the consent of the prosecutor and complainant or victim, would bargain for a lesser sentence than prescribed for the offence. Count Bargaining is where the accused plead guilty to a subset of multiple original charges. Fact Bargaining is where the defendants plead guilty pursuant to an agreement in which the prosecutor stipulates to certain facts that will affect how the defendant is punished under the sentence guidelines.

(Jedick, 2014) In the article researcher states that plea bargaining has taken a prominent place in the practice of criminal law in the United States and has been granted legitimacy by the United States Supreme Court in recent cases like Lafler and Frye³. She urges that only when we accept the reality of plea bargaining as it actually exists can we take steps to improve it. She further maintains that Plea bargaining has changed the criminal justice system from an adversarial system into something more resembling an administrative model. But she don’t blame that model and seems good.

(Turner, 2017) In this research project author took a critical approach towards plea bargaining and made suggestions to improve the system. He contend that it can generate arbitrary sentencing disparities, obscure the true facts, and even lead innocent defendants to plead guilty. His research has also attempted to identify more systematically areas in need of reform. His research term sum up major criticisms into three principal categories: (1) the risk of coercion; (2) the risk of inaccuracy; and (3) insufficient procedural protections. The team also made up some recommendations including – Require written plea agreements, Prohibit waivers of critical rights, Provide broad pre-plea discovery and ensure that defense attorneys have the time and resources to review it, Strengthen judicial oversight of plea bargains and guilty pleas, Adopt limits on plea discounts etc..

(Alschuler, 1979) Through his paper, researcher explores the history of plea bargaining in US. He restates various major events lead to evolution of Plea bargaining. He discussed about plea bargaining in US before civil war, discovery by crime commission in 1920s and till the recent history of plea bargaining. His concluding note was that the growing complexity of the trial process was not the only factor that contributed to the development of today’s regime of plea bargaining. Urbanization, increased crime rates, expansion of the substantive criminal law, and the professionalization and increasing bureaucratization of the police, prosecution, and defense functions may have also played their parts.

(ORTMAN, 2020) In this article researcher investigates the process that made plea bargaining the normal way of doing American criminal justice. The story unfolds in three parts: plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s, its rehabilitation by the Legal Realists in the 1930s, and finally its decisive embrace by scholars and judges in the 1950s and 1960s. Article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. It is noted that objections to plea bargaining posed by the Progressive reformers were not strong. And the legal elites, and ultimately the Supreme Court, saw no option but to rationalize it away.

CHAPTER 3

History of Emergence and Growth of Plea Bargaining in the US Judiciary

Historically, plea bargaining is a relatively new phenomenon. It was basically rare in the United States until the 19th century and even looked upon with misgiving⁴. Complex rules of procedure and evidence were avoided earlier, with quick and shorter trials by jury once upon a time. Parties often went unrepresented by lawyers during trials.

Plea bargains were rare in early American history. Up until the eighteenth century, a jury trial was often conducted without the use of a lawyer. The judge dominated this system. The defendant was denied legal counsel. In some instances, the prosecution was conducted by a lawyer, but in many instances, the judge handled much of the criminal procedure. The defendant would speak continuously at trial and even reply to the witnesses supplied by the prosecution. Due to the lack of legal counsel, cases tended to be handled much more quickly. Courts may try between 12 and 20 felony cases each day. As such, there was no real need for a plea bargaining system⁵.

The history of American plea bargaining is rather obscure, partly because of the fact that in most venues and jurisdictions bargaining was considered inappropriate until the late 1960s. Some of the earliest plea bargains took place in the colonial era during the 1692 Salem witch trials, when accused witches were told that they would live if they confessed but would be executed if they did not. The Salem magistrates wanted to encourage confessions, and, in an attempt to uncover more witches, they wanted the confessed witches to testify against others. Pleading guilty saved many accused witches from execution. Later the Salem witch trials were used to illustrate one of the strongest arguments against plea bargaining: that the practice sometimes induces innocent defendants to plead guilty⁶.

In hundreds of reported cases, medieval defendants denied “word for word, the felony, the king’s peace, and all of it”, but historians have found only a handful of recorded instances of confession⁷. From this, it is clear that the acceptance of guilt from the part of the accused was seen as an odd step in a trial, especially when he has a remission of sentence offered by the Court to speak the truth that must be established whether he spoke or not. This may look damaging, but the growth of plea bargain was just sprouting.

Back then, Judges appeared surprised when defendants offered to plead guilty, and they attempted to persuade them instead to go to trial. As early as 1832, however, plea bargains were becoming common in Boston, when public ordinance violators could expect less-severe sentences if they pleaded guilty. By 1850 the practice had spread to felony courts, and it became routine for defendants to plead guilty in exchange for the dismissal of some charges or other agreements arranged with the prosecutor. Possibly the first systematic use of plea negotiation, the Boston bargains were typically for victimless offenses, so the prosecutor did not have to consider victims’ concerns. Even if they were typical before 1860, it was only during the Civil War that plea-bargained cases began to appear in the appellate courts. Those courts reacted with the same surprise that trial court judges had expressed when they first encountered plea bargaining, and they sometimes reversed convictions that were based on bargains⁸. Probably, this is what led to the further attention that plea bargain as a practical aspect got its wider acceptance.

However, even in the 1960s, plea bargains were still treated as unethical at best and illegal at worst. Defendants who had accepted plea bargains were told not to acknowledge the negotiations in court, because doing so would cast doubt on whether their pleas were voluntary. In 1967, however, an influential report by the President’s Commission on Law Enforcement and Administration of Justice documented the widespread use of plea bargaining and recommended recognizing the practice⁹.

During the 1960s the landmark case of Gideon v. Wainwright significantly changed the way that criminal cases are handled. In that case, the Court ruled that indigent defendants have the right to legal counsel. As such, criminal cases now have a lawyer representing the criminal defendant’s rights and another lawyer representing the interests of the state. The need for plea bargains is more significant due to the prevalence of legal representation¹⁰. The right to legal representation of the accused was upheld in this stage of plea bargain’s growth in the US.

Official reports of guilty plea cases remained infrequent until the last quarter of the nineteenth century, but Professor John H. Langbein’s recent study of the Old Bailey during the late seventeenth and early eighteenth centuries offers a glimpse of the English criminal justice system in operation¹¹. Raymond Moley’s 1928 study, The Vanishing Jury¹², reported the percentage of felony convictions “by jury” and “by confession” in New York State for an eighty-eight year period beginning in 1839. In 1969 the U.S. Supreme Court reversed the conviction of a man who had received five death sentences after pleading guilty to five counts of robbery because the trial judge had not ensured that the guilty pleas were voluntary (Boykin v. Alabama)¹³. Judges now ensure that guilty pleas are voluntary by querying defendants in court.

In the following year the Supreme Court ruled that it is acceptable to reward with reduced penalties those defendants who plead guilty (Brady v. United States)¹⁴ and that defendants may plead guilty without admitting culpability, meaning that they can plea bargain even when they feel they are factually innocent (Carolina v. Alford)¹⁵In a fourth plea bargaining case, in 1971, the Supreme Court ruled that defendants are entitled to legal remedy if prosecutors break conditions specified in plea bargains (Santobello v. New York)¹⁶In 1978 the Court held in Bordenkircher v. Hayes¹⁷ that prosecutors may threaten to bring additional charges against defendants who refuse to bargain as long as those charges are valid.

The judicial practice of discouraging guilty pleas persisted into the second half of the nineteenth century, but at about this time prosecutorial plea bargaining emerged. Of course a history of one hundred years or more may be sufficient, from the perspective of some observers, to render plea bargaining a venerable institution. If so, however, plea bargaining may be venerable in the same sense as compounding and other consistently condemned practices¹⁸.

In conclusion, the process was accompanied and probably aided by the substantive expansion of the criminal law, particularly the enactment of liquor-prohibition statutes¹⁹. Despite general disapproval, plea bargaining became a dominant method of resolving criminal cases at the end of the nineteenth century and beginning of the twentieth-at a time when the bondsman, the ward politician, the newspaper reporter, the jailer, and the fixer exerted an everyday influence on the administration of criminal justice’²⁰.

From this research of history, it can be understood that plea bargaining has transformed the way in which criminal justice delivery system works, and has increased the rate at which criminal cases are being justified in the eyes of the public. Though there is a diminishing role of the epic jury in the US Courts, plea bargaining has been a boom, considering the justiciable satisfaction delivered to the victims of crimes.

CHAPTER – 4

Discovery of Plea Bargaining

‘Discovery of plea bargaining’, the term doesn’t imply that nobody knew about bargain in criminal cases for a lenient treatment. In 1920s realization was that compromises in criminal cases was pervasive – that guilty pleas had replaced guilty verdicts as the primary pathway to criminal convictions in the United States²¹. The age of plea bargaining’s discovery began in 1922 with the Cleveland Foundation’s publication of Criminal Justice in Cleveland, which painstakingly dissected the work of the two state criminal courts operating in the city²². The report revealed a surprising degree of reliance on guilty plea²³. Out of every one hundred defendants sentenced in the Cuyahoga County Court of Common Pleas in felony cases in 1919, seventy-six had plead guilty. Raymond Moley in 1928 published “The Vanishing Jury” in the Southern California Law Review and reported on the guilty plea rates in more than twenty major cities. The report revealed that only three cities had rates below 60%, with ten between 70% and 79%, six between 80% and 89%, and five at 90% or above compromise cases by guilty pleading²⁴.

Discoverers

Between 1930s and early 1930s almost fourteen significant surveys of the criminal justice systems of American cities and states were conducted in United States. Beginning with Criminal Justice in Cleveland, a number of surveys conducted by public bodies on behalf of legislature, private institutions, universities and private civic associations. Some are well funded while others were strive hard to sustain.

In 1919, the Cleveland Foundation, a private philanthropic society, hired Moley, a junior political scientist at Western Reserve University, as its first full-time director. In 1920, the Chief Judge of Cleveland’s municipal court, William McGannon, was indicted for murder²⁵. The criminal justice system in Cleveland was ill equipped to deal with the prosecution of one of its own highest-ranking officials. When, after many delays, prosecutors eventually brought the case to trial, McGannon was acquitted. Due to pressure from press he again got convicted and sent to prison for perjury. Moley later said that this case lead to Cleveland crime survey. Later Moley invited Pound to survey and he joined the same. Then Pound, Frankfurter, Moley, and their team of researchers undertake the survey.

The Cleveland report explained that for every one hundred felony cases commenced in the Municipal Court in 1919, only twenty-nine resulted in executed sentences²⁶. Of the remaining cases, twelve were discharged by the Municipal Court after preliminary examination, four were otherwise dismissed by the Municipal Court (sometimes with a misdemeanor plea), ten were dismissed by the City Attorney, sixteen were “no billed” by the grand jury, nine were dismissed by the County Attorney, five were acquittals at trial, eight were convictions but the defendants received suspended sentences, and seven were disposed of by some other means. The report’s authors associated case mortality with inefficiency: “high percentage of cases which fail at various stages,” the authors of the chapter on prosecution wrote, “is an indication of something wrong in earlier stages.” The chapter on criminal courts put the point more forcefully: “With all these avenues of escape open, it is not surprising that Cleveland has had extreme difficulty in punishing its criminals or in restraining crime by swift and certain justice²⁷.” In the survey’s conclusion, Pound assessed what he saw as the central problem— the city’s criminal justice institutions were designed for a mid – nineteenth-century world with a few hundred criminal statutes and a few dozen indictments a year²⁸. While it may have served Cleveland well under those conditions, he argued, it was inadequate for an industrialized metropolis with a sprawling criminal code and forty-five times the number of indictments. Ever the Progressive optimist, Pound prescribed modernization programs aimed at every level of the criminal justice system in Cleveland, from the police to the penal institutions.

The methods and goals of the Cleveland survey quickly spread to crime surveys in other jurisdictions. The next large-scale survey after Cleveland was in Missouri, and Moley was its research director. He played the same role for the Illinois Crime Survey, published in 1929, and for the New York Crime Commission. Like Criminal Justice in Cleveland, moreover, the surveys sought to highlight the systemic inadequacies—above all, the inefficiency—of local criminal justice institutions. And, of particular importance here, they focused attention on the surprising prevalence of guilty pleas over trials.

Discoveries

Almost everywhere they looked, the crime commissions of the 1920s and early 1930s found that trials accounted for a small share of criminal convictions. In 1925, Crime and the Georgia Courts noted that the number of guilty pleas in Georgia’s city courts had more than doubled in five years, while the number of trial convictions had decreased²⁹. The Missouri Association for Criminal Justice observed in its report of the following year that the “large number of… pleas of guilty” was a “striking feature” of its investigation³⁰. The year after that, the New York Crime Commission declared that “there is no more significant fact present in the present day administration of criminal justice than the free use of the plea of guilty.” The survey of Virginia’s criminal courts revealed that the “percentage of cases disposed of by trial… decreased from 46 in 1917, to 35 in 1922, and to 29 in 1927³¹. Some evidence suggests that the trend was much older. Data collected in New York suggested that the share of convictions attributable to guilty pleas had been increasing, more or less unabated, since the middle of the nineteenth century. The commissions found that, in exchange for foregoing a trial, prosecutors allowed defendants to plead guilty to lesser offenses—known as charge bargaining in modern parlance³². The crime commissions also discovered evidence that guilty pleas were secured, as Moley explained, by “the express or implied promise of leniency in sentencing”—a practice now known as sentence bargaining³³. The commissions also identified some specific mechanisms used to secure leniency for defendants who agreed to plead guilty. One mechanism was the suspended sentence. In Virginia, for instance, a defendant was “six times as likely to succeed in getting his sentence suspended if he would plead guilty than if he stood trial³⁴.”

The Illinois survey reported, versus 17% of cases where the defendant was convicted at trial or pled guilty to a lesser offense. The Illinois survey added, “This tendency to plead guilty is no abject gesture of confession and renunciation; it is a type of defense strategy³⁵.” The New York survey, after noting the increase in the number of guilty pleas, observed, “This is not because those accused of crime are becoming to a greater degree repentant of their misdeeds…. It is a development of the tactics of the defense combined with the rise of certain conditions in the machinery of justice³⁶.”

CHAPTER – 5

Recent history in Plea Bargaining in US

US Supreme Court recently acknowledged “criminal justice today is for the most part a system of pleas, not a system of trials.” More than 95% of convictions in the federal and state systems are the product of negotiated guilty pleas. Roughly every two seconds during typical work hours, a person pleads guilty³⁷. The current practice of plea bargaining in the U.S. is criticized for conflicting with the search for truth. Even if defendants are guilty of some offense, incomplete investigations, inadequate disclosure, limited adversarial testing, perfunctory judicial oversight, and sizeable plea discounts can lead defendants to plead guilty to crimes different from the ones they committed. The U.S. Supreme Court officially recognized plea bargaining as a formal procedure for the resolution of criminal cases in 1970 when it declared plea bargaining constitutional in the Brady v. United States case³⁸. In another case, Santobello v. New York³⁹, the Supreme Court decided that the defendant’s sentence should be vacated because the plea agreement had been violated. U.S. Supreme Court established that, in order for a plea bargain to be legally valid, both the prosecutor and the defendant must honor the terms of the agreement.

While a few commentators have defended plea bargaining on the grounds of its efficiency and ostensible benefits to the parties involved, most have been critical of the practice. In the 1980s, some called for outright abolition of plea bargaining. At this point, perhaps in recognition of the entrenched position of plea bargaining in the United States, scholarship has shifted focus toward correcting the worst excesses of the practice. Empirical research has also attempted to identify more systematically areas in need of reform. Scholars’ concerns fall into three principal categories: (1) the risk of coercion; (2) the risk of inaccuracy; and (3) insufficient procedural protections. Since the 1980s, mandatory sentencing laws, sentencing guidelines, and the abolition of parole have led to a sharp rise in sentence length in most states and the federal system. Just as sentences have grown longer, rewards for pleading guilty have also increased. Some of these rewards are expressly granted by rules or statutes, such as reductions for accepting responsibility or cooperating with the prosecution. Others are offered indirectly, by giving prosecutors broad discretion to reduce charges for defendants who agree to plead guilty.

In fiscal year 2010, the prevalent mode of conviction in U.S. District Courts of all crimes was by plea of guilty (96.8% of all cases)⁴⁰. The percentage ranges from a relative low of 68.2% for murder to a high of 100% for cases of burglary, breaking and entering. With the exception of sex abuse (87.5%), arson (86.7%), civil rights (83.6%) and murder (68.2%), for all other crimes the rate of convictions by plea of guilty is well over 90%. In the recent U.S. Supreme Court decision, Missouri v. Frye, Justice Kennedy, writing the majority opinion, pointed out the statistics that 97% of federal convictions and 94% of state convictions are the result of guilty pleas. Given the federalist nature of the United States, states and localities have their own substantive and procedural laws and regulations. Consequently, data on convictions by pleas of guilty vary from state to state but they are all substantial.

While plea bargaining continues to spread globally, its use remains highly controversial. Perhaps the greatest concern is that, at least as currently practiced in the United States, plea bargaining can be so coercive as to lead some innocent people to plead guilty⁴¹. Broad prosecutorial discretion to set high plea discounts, combined with harsh baseline sentences, places significant pressure on defendants to take a plea. Data from the National Registry of Exonerations (NRE) support these concerns: As of January 2017, roughly 18% of recorded exonerations (343 out of 1,956) in the NRE were the product of guilty pleas. Apart from its potential to coerce innocent defendants to plead guilty, the current practice of plea bargaining in the U.S. is criticized for conflicting with the search for truth. Even if defendants are guilty of some offense, incomplete investigations, inadequate disclosure, limited adversarial testing, perfunctory judicial oversight, and sizeable plea discounts can lead defendants to plead guilty to crimes different from the ones they committed.

A recent study of capital charging and sentencing decisions in Georgia in the period between 1993 and 2000 found “strong evidence that the threat of the death penalty ha[d] a robust causal effect on the likelihood of a plea agreement⁴². The threat of the death penalty was found to increase the probability of a guilty plea by roughly 20% to 25%. While the study did not reach any conclusions about the effects of the death-penalty threat on innocent defendants, other studies have documented cases in which innocents have pleaded guilty to avoid the death penalty⁴³. As the NRE noted, “Excluding drug cases, most guilty-plea exonerations are for homicide or sexual assault, two categories that account for 70% of all known exonerations.” Among the homicide exonerees, almost three- fourths were convicted of homicide, and “it appears that the great majority pleaded guilty to avoid the risk of execution. All but 2 were prosecuted in death penalty states, and 70% had falsely confessed.” On the other side of the punishment spectrum, a plea offer of time served for detained defendants has also been found to lead innocent defendants to plead guilty. Misdemeanor defendants are frequently detained for the simple reason that they cannot afford to post bail, and they are commonly offered plea deals to “time served⁴⁴.” They are then subject to significant economic and familial pressures to plead guilty in order to be released from jail. A recent empirical study found that misdemeanor detainees “plead guilty at a 25% higher rate than similarly situated releases.” The authors concluded that “misdemeanor pretrial detention … seems especially likely to induce guilty pleas, including wrongful ones.”

With no doubt US is the world leader in plea bargaining. Almost 97% of cases are resolved with a guilty plea – a percentage that has remained stable for past two decades. About 12 million people are admitted to jail every year, the US unquestionably administers more trial waivers than any other country. The growing reliance on plea bargaining is corroding the fairness of justice systems when guilty pleas can persuade innocent people to admit crimes they did not commit. Plea bargaining has grown 300% worldwide in the last 25 years – an increase that often influenced by US.

CHAPTER – 6

PLEA BARGAINING IN INDIA AND US

Plea Bargaining in USA

Plea bargaining is a process by which the defendant waive the fundamental rights way prior to a jury so that the person in question can afford a lesser charge or sentence than the original. The bargaining takes place between the defendant and prosecutor. This was relatively new concept to US system. The basic kinds of plea Bargaining involves implicit plea bargaining and explicit bargain. The negotiations which result in a formal agreement between the parties are called explicit where as in the latter there is no guarantee of leniency. The types includes – Plea on reduction in charge and Plea on reduction in sentence. The features of American Justice System that promotes plea bargaining. The adversarial nature of the system puts judges in a passive role. The parties thus can control the outcome of the case by exercising the rights of bargaining them away. The lack of compulsory prosecution also gives prosecutors greater discretion. The law that applies Rule 11 of federal rules of Criminal Procedure gives the legislative framework for administering Plea bargaining in America.

Indian Perspective on Plea bargaining

In India the concept of plea bargaining was adopted in Criminal law amendment Act of 2005. In Plea bargaining of more indigenous version a party who furnished a crime punishable for death or 7 years of imprisonment or more cannot exercise the same. A person involved in socio legal crimes, serious crimes against women and child of not above the age of 13 cannot attempt plea bargaining.

One can observe the synonymy between Plea Bargaining on certain aspects with the American version where the public prosecutors are mostly involved in the process. The defendant has the right to voluntarily take part in plea bargaining rather than by force or promise. The contradiction from American model is that in India Plea bargaining is a one-time process, which can be invoked once in a lifetime and repeated offenders fails to enjoy the right confined to this part. American Courts are rather much busier than the counterpart so the concept of Plea bargaining had evolved way before in late1800 and due to undergoing tremendous change in the process of what one called as plea bargaining of today, the US courts have incorporated almost all crimes under the purview of plea bargaining and in India such trend is not observed.

Method of Plea Bargaining in India

In India the parties file an application for plea bargaining. The application shall be addressed by the judge with jurisdiction. The judge checks whether the application was done voluntary without any promise or force. Thereafter a notice shall be issued to parties to come for a joint meeting. The date of the meeting shall be issued by the judge. The parties mutually agree upon a satisfactory disposition. In India Plea bargaining is stage between investigation and judgement. The judge before pronouncing the reduced charge, the same observes whether the accused had previously be convicted of the same charge. In the judgement the reduced punishment can be 1/2 or 1/4 of the original sentence. For first time offenders probation can be given for reduced sentence. To set off sentence period sometimes detention is also given by the judge.

Important Cases on Plea Bargaining in India

1. Murlidhar Meghraj Loya vs State of Maharastra 1976 3 S.C.C 684⁴⁵. It is the first case in which Plea bargaining was rejected in India.
2. Vijay Mosses Das and Another vs CBI⁴⁶ – Law quality material was used, charged with section 420, 428 IPC
3. Kasambi Abdu Rahiman Sheikh vs State of Gujarat⁴⁷ another case Thippaswamy vs State of Karnataka⁴⁸ (1983) 1 S.C.C 194 – In both case the Plea bargaining in contravention with Article 21 was discussed.
4. Plea Bargaining views – Nanabhoy Palkhivala on Plea Bargaining quoted as follows ” The law may, or may not be an Ass but in India it is certainly a Snail and on cases proceed as a pace which would be regarded as underly slow in the community of Snail⁴⁹
5. The dissenting views regarding plea Bargaining was stated on case like:

 Madanlal Ram Chandra Daga vs State of Maharastra (1968) 3 S.C.R 34⁵⁰ – ” In our opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence. But the Court should never be a party to a bargain by which money is recovered for the complainant through their agency”

 State of UP vs Chandrika⁵¹ AIR 2000 S.C 164 – It was observed that that the concept of plea bargaining is not recognized and is against public policy under Indian Criminal System.

Important cases on Plea Bargaining in US

The 6th Amendment of the US Constitution enshrines the fair trial principle but it didn’t mention about the practice of Plea Bargaining. However the US judiciary has upheld the constitutionality in the process.

1. Salem Witch Trials⁵² – The people in Salem Massachussets were prosecuted for alleged witcraft during colonial era of American history. A great many people were forced to plead guilty and a civilian called Giles Corey was pressed to death for not pleading.
2. Assassination of Martin Luther King Junior Case 1969 the accused James Earl Ray pleaded guilty to the murder to avoid death penalty and the same was given a life sentence of 99 years instead of death penalty⁵³.
3. David Headley case⁵⁴ – The master brain behind Mumbai Terror attacks David Headley was arrested by the FBI and was charged with Conspiracy. The six counts of conspiracy involving Bombing public places, murdering, maiming person in India and provided material support for the blast pleaded guilty before US Court to bargain for a lighter sentence to avoid capital sentence
4. Julius Baer & Co. v. WikiLeaks⁵⁵ – In this case Top secret data regarding national security of the United States of America was released by WikiLeaks website. In this case the website sought for plea bargaining.
5. Fox v. Scheidt⁵⁶ – Comr. of Motor Vehicles 84 S.E.2d 259 (N.C. 1954) another case Clark vs. Adam explained about Quasi confession in plea bargaining
6. Brady vs United States⁵⁷ – In this case SC held that mere because the agreement on plea bargaining was entered into out of fear that the trial may result in death sentence would not illegitimize the bargained plea of guilty. It is not constitutional to the extent of benefit to an accused that in turn extends a benefit to the State.
7. Santabello vs Newyork⁵⁸ – US Supreme Court has accepted Plea Bargaining as an essential for administration of justice. When properly managed was to be encouraged and when it is broken legal remedies exist.
8. North Carolina v. Alford⁵⁹ was a case in which the Supreme Court of the United States affirmed that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence under duress as a detainee status.
9. Griffin vs State⁶⁰ – It was stated that a plea bargaining is exercised when the accused is willing, voluntarily, without inducement of any sort to confess his guilt and expiate his offence. The withdrawal of plea is available whenever there is flattery odd hope or torture of fear. From the case laws itself the Indian concept of plea bargaining is still in a developing stage whereas in US the concept has evolved. It will be challenging task for the jurists or law makers to develop the same in accordance with the fundamental rights of Indian Constitution but it isn’t an achievable task.

CHAPTER – 7

CONCLUSION

Even plea bargaining in USA got recognition in 1970s via cases like Brady V US and Santebello V New York, its evolution can be traced from 17th century. Later in 1920s, crime commission discovered that there were large instances of plea bargaining arises in US judiciary. Even before this discovery it was within the knowledge of attorneys that there was a practice of pleading guilty existed in criminal justice system. In 1920s through wide surveys and studies Raymond Moley and his team discovered it with some sort of proof. Although the sixth amendment to the US constitution did not recognize plea bargaining, the US judiciary through the above mentioned cases recognized plea bargaining. In its evolution stage and for a short period the plea bargaining was used with care, but as of now it is an unavoidable factor in criminal justice system in US judiciary.

BIBLIOGRAPHY

Alschuler, A. W. (1979, January). Plea Bargaining and Its History. Columbia Law Review, 79(1), 1- 43.

Bhagyodaya. (2018). Role of Plea Bargaining for ensuring access to justice- A Critical Analysis. Legal service India, 1-8. Retrieved February 02, 2021, from
http://www.legalserviceindia.com/legal/article-1250-role-of-plea-bargaining-for-ensuringaccess-to-justice-a-critical-analysis.html

Jedick, J. R. (2014). A Change in the Environment of Plea Bargaining: Using the Inspiration of Administration of Administrative Procedural Safeguards Like NEPA to Add Process Protections. Washington University Law Review, 91(5), 1325 – 1352. Retrieved from https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6094& context=law_lawreview

ORTMAN, W. (2020). WHEN PLEA BARGAINING BECAME NORMAL. BOSTON UNIVERSITY LAW REVIEW, 100, 1435-1499.

Santhi, K. (2013). PLEA BARGAINING IN US AND INDIAN CRIMINAL LAWCONFESSIONS FOR CONCESSIONS. NALSAR Law Review, 7(1), 84 – 102. Retrieved from http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf

Sharma, V. N. (2018, August 15). Know Your Rights: Plea bargaining, a silver lining of Indian criminal justice system. THE TIMES OF INDIA, ;. Retrieved from https://timesofindia.indiatimes.com/blogs/lawtics/know-your-rights-plea-bargaining-asilver-lining-of-indian-criminal-justice-system/

SIKIRU ADEWALE, S. A. (2019, August). PLEA BARGAINING IN CRIMINAL PROSECUTION. Research Gate, 1-29. Retrieved from https://www.researchgate.net/p ublication/335516022_6_PLEA_BARGAINING_IN_CRIMINAL_PROSECUTION

Trivedi, S. (2020, January). Coercive Plea Bargaining Has Poisoned the Criminal Justice System. It’s Time to Suck the Venom Out. ACLU, –. Retrieved from https://www.aclu.org/news/criminallaw-reform/coercive-plea-bargaining-has-poisoned-the-criminal-justice-system-its-time-tosuck-the-venom-out/

Turner, J. I. (2017). PLEA BARGAINING. Academy For Justice. A report on Scholarship and criminal Justice Reform, Erik Luna, 73-99.

Viano, E. C. (2012). Plea Bargaining in the United States: A Perversion Of Justice. Revue internationale de droit pénal, 83(1-2), 109 to 145. Retrieved from https://www.cairnint.info/article-E_RIDP_831_0109–plea-bargaining-in-the-united-states-a.htm#

YOFFE, E. (2017, September 1). Innocence Is Irrelevant – This is the age of the plea bargain—and millions of Americans are suffering the consequences. THE, pp. 1-10. Retrieved from https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/

REFERENCES

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2 Sara J. Berman, The Basics of a Plea Bargain, https://www.nolo.com/legal-encyclopedia/the-basics-pleabargain.html, (last visited on 02/02/2021)

3 Missouri v. Frye, 132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376, 1397–98 (2012)

4 Albert W. Altschuler, Plea Bargaining and Its History. 13 LAW & SOC. REV. 211, 214-215 (1979).

5 HG.org, “History of Plea Bargaining”. https://www.hg.org/legal-articles/history-of-plea-bargains-40219, Accessed 28 January, 2020.

6 Meyer, Jon’a F. “Plea bargaining”. Encyclopedia Britannica, 26 Feb. 2020,
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7 People v. Whipple, 9 Cow. 707, 712 (N.Y.O.&T. 1827); see United States v. Lee, 26 F. Cas. 910 (C.C.D. Il. 1846) (No. 15,588); Wight v. Rindskopf, 43 Wis. 344, 348 (1877).

8 Meyer, Supra note 6

9 Meyer, supra 8

10 HG. Org, supra 5

11 Langbein, The Criminal Trial before the Lawyers, 45 U. CHI. L. REV. 263 (1978).
https://chicagounbound.uchicago.edu/uclrev/vol45/iss2/2

12 Moley, The Vanishing Jury, 2 S. CAL. L. Rav. 97 (1928).

13 Boykin v. Alabama, 395 US 238 (1969) https://supreme.justia.com/cases/federal/us/395/238/

14 Brady v. United States, 397 U.S. 742 (1970), https://supreme.justia.com/cases/federal/us/397/742/

15 North Carolina v. Alford, 400 U.S. 25 (1970), https://supreme.justia.com/cases/federal/us/400/25/

16 Santobello v. New York, 404 U.S. 257 (1971) https://supreme.justia.com/cases/federal/us/404/257/

17 Bordenkircher v. Hayes, 434 U.S. 357 (1978) https://supreme.justia.com/cases/federal/us/434/357/

18 Altschuler, supra 4

19 F. Raymond Marks Jr, John Kaplan, Marijuana—The New Prohibition, 5 Val. U. L. Rev. 192 (1970). https://scholar.valpo.edu/vulr/vol5/iss1/13

20 Harno, The Workings of the Parole Board and Its Relation to the Court, 19 J. AM. INST. CRIM. L. & CRIMINOLOGY app. at 83, 103 (1928) (part of a report of the Committee on the Study of the Workings of the Indeterminate Sentence Law and of Parole in the State of Illinois)

21 ORTMAN, W. (2020). WHEN PLEA BARGAINING BECAME NORMAL. In W. ORTMAN, WHEN PLEA BARGAINING BECAME NORMAL (Vol. 100, pp. 1446 – 1459). BOSTON UNIVERSITY OF LAW REVIEW.

22 CRIMINAL JUSTICE IN CLEVELAND 85, 143 (Roscoe Pound & Felix Frankfurter eds., 1922)

23 Altschuler, supra 18

24 Moley, supra 12

25 RAYMOND MOLEY, POLITICS AND CRIMINAL PROSECUTION 16-17, 21 (1929)

26 Roscoe Pound, Do We Need a Philosophy of Law?, 5 COLUM. L. REV. 339 (1905

27 Reginald Heber Smith & Herbert B. Ehrmann, The Criminal Courts, in FOSDICK ET AL

28 ROSCOE POUND, CRIMINAL JUSTICE IN AMERICA 3 (1930)

29 Dep’t of Pub. Welfare, Crime and the Georgia Courts: A Statistical Analysis, 16 J. AM. INST. CRIM. L. & CRIMINOLOGY 169, 185 (1925)

30 Arthur V. Lashly, Preparation and Presentation of the State’s Case, in MO. ASS’N FOR CRIMINAL JUSTICE,

31 HUGH N. FULLER, CRIMINAL JUSTICE IN VIRGINIA (1931);

32 Moley, supra 12

33 Moley, supra 12

34 Fuller, supra 31

35 ILLINOIS ASS’N FOR CRIMINAL JUSTICE, THE ILLINOIS CRIME SURVEY 47 (1929).

36 NEW YORK STATE CRIME COMMISSION, REPORT TO THE COMMISSION OF THE SUB COMMITEE ON STATISTICS 135 (1927).

37 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL JUSTICE STATISTICS 2012— STATISTICAL TABLES tbl.4.2 (2015) (97% of federal convictions disposed of via guilty plea). For state statistics, see BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, STATE COURT SENTENCING OF CONVICTED FELONS, 2004—
STATISTICAL TABLES tbl.4.1 (2004) (95% of state convictions obtained through a guilty plea); Court Statistics Project DataViewer, NAT’L CTR FOR STATE COURTS, http://www.ncsc.org/Sitecore/Content/Microsites/PopUp/Home/CSP/CSP_Criminal (showing that for most states, jury trials amounted to only about 1-2% of criminal dispositions).

38 Supra 14

39 Santobello v. New York, 404 U.S. 257 (1971), 261

40 Sourcebook of Criminal Justice Statistics Online 2010;
http://www.albany.edu/sourcebook/pdf/t5342010.pdf , Table 5.34.2010. Accessed on 01 February 2021.

41 Lucian E. Dervan, The Injustice of the Plea-Bargain System, WALL ST. J. (Dec. 3, 2015), https://www.wsj.com/articles/the-injustice-of-the-plea-bargain-system-1449188034; Tim Lynch, Americans Are Bargaining Away Their Innocence, WASH. POST (Jan. 20, 2016), https://www.washingtonpost.com/news/intheory/wp/2016/01/20/americans-are-bargaining-awaytheir-innocence/?utm_term=.e5b3744dffdb

42 Sherod Thaxton, Leveraging Death, 103 J. CRIM. L. & CRIMINOLOGY 475, 475 (2013).

43 Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 544-46 (2005);

44 Paul S. Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention

45 Murlidhar Meghraj Loya vs State of Maharastra 1976 3 S.C.C 684

46 Crim. mis. applin 1037/2006

47 Kasambi Abdu Rahiman Sheikh vs State of Gujarat AIR 1980 SC 854

48 Thippaswamy vs State of Karnataka (4) (1983) 1 S.C.C 194

49 www.nalsar.ac.in >pdf > journals NA palkiwala

50 Madanlal Ram Chandra Daga vs State of Maharastra (1968) 3 S.C.R 34

51 State of UP vs Chandrika AIR 2000 S.C 164

52 https://en.m.wikipedia.org/wiki/Salem_witch_trials

53 .Ray v. Rose 491 F.2d 285 (6th Cir. 1974)

54 David Headley case , Times of India 18th March 2010

55 Julius Baer & Co. v. WikiLeaks, 535 F. Supp. 2d 980 (N.D. Cal. 2008)

56 Fox v. Scheidt, Comr. of Motor Vehicles 84 S.E.2d 259 (N.C. 1954)

57 Brady vs United States 397 US 742 (1970)

58 Santabello vs Newyork 404 U.S. 257 (1971)

59 North Carolina v. Alford, 400 U.S. 25 (1970)

60 Griffin vs State 12 Ga. App 615 622 – 623 (1913)

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