- More than guaranteeing a speedy conviction, plea bargaining provides benefits for multiple interests involved in a criminal matter, including victims of crime, while ensuring the integrity of the justice system.
- Plea bargaining involves negotiations between the attorney for the defendant and the prosecutor, where the defendant decides to plead guilty in exchange for an agreement by the prosecutor to vary the charges or sentence.
- This could include dropping one or more charges, reducing a charge to a less serious offence, or recommending to the judge, a specific sentence acceptable to the defence.
More than guaranteeing a speedy conviction, plea bargaining provides benefits for multiple interests involved in a criminal matter, including victims of crime, while ensuring the integrity of the justice system.
Plea bargaining involves negotiations between the attorney for the defendant and the prosecutor, where the defendant decides to plead guilty in exchange for an agreement by the prosecutor to vary the charges or sentence.
This could include dropping one or more charges, reducing a charge to a less serious offence, or recommending to the judge, a specific sentence acceptable to the defence.
A plea bargain is different from a guilty plea. The guilty plea, which is a judicial admission of wrongdoing, leaves the defendant liable to be sentenced by the judge.
In plea bargaining, there is an agreement between the prosecution and the defence about the terms of the guilty plea.
The process often involves heated discussions, firm rejections and an eventual meeting of the minds between prosecutor and defence.
Director of Public Prosecution (DPP) Paula Llewellyn, in outlining the process to JIS News, says there are three main things that the prosecution looks for when considering a plea agreement.
“The first thing that you are looking at would be what the facts of the case are or the allegations, because they are allegations until you are proven guilty. So it’s the allegations and the gravity of the allegations.
“Number two, if it is that the plea is to encompass a lesser offence, for example, you are going from murder to manslaughter, then you also make sure that as a matter of law, there is a clearly outlined legal justification to accept that particular plea.
“Thirdly, there is the whole question of assisting the investigation or prosecution. Section 20 of the Plea Negotiations Act highlights the fact that if you have already pleaded guilty or you were found guilty in a matter, then you can negotiate with the prosecution,” Ms. Llewellyn explains.
This means if a person has been incarcerated for life with parole, and they have knowledge of a particular case, they can approach the prosecuting authorities to assist the investigation in exchange for a sentence reduction through a plea bargain.
Ms. Llewellyn says the length of time a person waits to consider a plea negotiation impacts by how much their sentence could be reduced.
“Under the Criminal Justice Administration Act, through formal plea negotiations, if you plead guilty on the first relevant date, meaning the first date after disclosure of the documents, the accused can get up to 50 per cent off of what they would have normally received if you had gone to trial.
“You also can receive up to 30 per cent off if you plead guilty on the day when the matter is to be tried. During the course of the trial, before the verdict is read, the accused can get up to 15 per cent reduction in their sentence,” she points out.
The sentencing range depends not only on the particular circumstances of the case but also on sentencing guidelines and the range of sentences that previous matters that have gone through the court system and have a similar type of fact scenario may have attracted.
The provisions of the revised Plea Negotiations and Agreement Act (2017) governs how plea bargaining should work in Jamaica, including the criteria used by the judges in deciding whether to accept a plea deal.
Consideration is given to the significance and the usefulness of the person’s assistance to the crown, taking into consideration any evaluation of the assistance rendered; truthfulness, completeness and reliability; the nature and extent of the accused person’s assistance and any benefit that the accused person has gained or may gain.
Also considered is whether the accused person will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist; any injury suffered by the accused person or the accused person’s family or any danger or risk of injury to the accused person or the accused person’s family, resulting from the assistance.
Victims of crime included in the plea-bargaining process.
The DPP tells JIS News that victims and relatives of victims are asked to provide a victim impact statement detailing the effect the particular offence committed by the accused has had on the victim or their relatives, and the judge is at liberty to take that into account.
Director of Legal Services in the Ministry of Justice, Karen N. Wilson, says the inclusion of the victims in the process allows them to understand the nature of the agreement.
“Even in the old Act, there was always a provision to consult with the victim, not necessarily to get the victims approval but to have the victim understand the nature of the agreement, hear what the victim has to say and see how it may impact them.
“In some cases, victims are relatives and family members of the accused person, so what we try to do in the law is to strike a balance between the rights of the victims of the crime and the other aspects of the accused person’s life,” she explains.
Minister of Justice, Hon. Delroy Chuck, says that in addition to the admission of guilt being the first step towards the rehabilitation and eventual reintegration into society of the accused, plea bargaining can save the court time and resources.
“It also saves the cost to the prosecution, the defence, everybody, which is quite significant. It reduces the backlog in the court system and, therefore, the more serious cases can be dealt with in a more calm and expedited manner. It obviously assists in showing that the accused person is remorseful and, therefore, is a major mitigating factor to ensure that the accused is given some consideration,” he notes.
Minister Chuck tells JIS News that plea bargaining guarantees a conviction. “This is very useful for persons who know they are guilty and acknowledge their guilt, accept the sentence that is agreed on, because they may well go to trial and be acquitted, burden the court and at the end of the day, justice would not have been done,” he points out.
The Justice Minister notes, further, that unlike a trial where the only advantage the victim has is the ability to plead their case in court, plea bargaining saves victims the trauma involved in reliving the crime.
“Also, in the sentence, they can express their views. So all of that will be taken into consideration, which in a guilty plea, by itself, that is not done,” he points out.
Minister Chuck says that while there are persons who believe that the accused should not be given any benefit as they have committed a crime, “the society must be prepared to acknowledge that time off should be given to the accused convicted person, who now has saved the State not only time and resources but a huge amount of challenges that the State may well have to overcome”.
Meanwhile, DPP Llewellyn says that as more persons become aware of the benefits of plea bargaining, then more cases could be resolved through the process.
She notes that most of the 73 matters disposed of during a recent four-week circuit of the St. Ann Circuit Court were done through the use of plea bargaining. There were 149 cases before the court.
Ms. Llewellyn says that while plea bargaining can have many positive effects by expediting the disposal of cases, due process is critical to preserving the integrity of the justice system.
“You have to balance the rights of the accused to due process in a fair trial along with the public interest. This obligates us… to put forward the best case and the best evidence that we have available in order for the issues joined between the accused and the prosecution to be properly and transparently ventilated in the public domain.
“This is done so that the public interest can be satisfied and that we know who is guilty, innocent and, ultimately, that someone can be held accountable for having committed a criminal offence,” she tells JIS News.
Persons considering plea bargaining should make contact with their defence attorney, as the prosecution should not negotiate directly with the accused.
Where accused persons do not have legal counsel but would like to negotiate a plea agreement, the Legal Aid Council can provide them with an attorney to provide advice.
Persons should not be forced by anyone, including their attorneys, to take a plea bargain. If it is found that a person was coerced into a plea bargain, the judge can refuse the agreement.
Minister Chuck says that, “if a person is not guilty, they should never plead guilty, and if it appears that they are pleading guilty to save somebody, the guilty plea should never be accepted”.
For more information on plea bargaining, persons can visit the Ministry of Justice’s website at moj.gov.jm.