Monday, July 21, 2008

The Case for Plea Bargaining in South Africa and a Blast from the Past

The Times in South Africa had an interesting piece on Sunday regarding plea bargaining. The article was entitled "The Case for Plea Bargaining," and the author, the director of the Institute for Security Studies in Cape Town, described not only the forces influencing the plea bargaining debate in South Africa, but the way similar debates have evolved around the world.

In a study into the use of plea bargaining in South Africa, the South African Law Commission concluded that it “performs an important part in our criminal justice system”. . .

While the use of legitimate discretionary powers by prosecutors continues to provoke controversy here and abroad, their power to make such deals has been repeatedly upheld by courts.

The US Supreme Court has held that “if every criminal charge were subject to a full-scale trial, the states and federal government would need to multiply by many times the number of judges and court facilities”.

The overwhelming justification for the use of plea bargaining is that, in the face of overcrowded prisons and clogged court roles, it is an efficient instrument of criminal procedure that reduces enforcement costs and allows the prosecutor to concentrate on more meritorious cases.

Criminal justice systems operate under huge pressure to deliver results in the face of rising crime rates.

These pressures, and the rise of the mentality of winning the “war on crime” at all costs, have significantly influenced the shift away from due-process criminal justice models to ones that place overwhelming emphasis on crime control.

As a result, the power and prestige of prosecutors have expanded dramatically internationally, granting ever more discretion to that position.


This reminded me of a great article I stumbled across on the web. It is an article from Time magazine in 1978 entitled "Is Plea Bargaining a Cop-Out?" In it, some the great plea bargaining scholars debate the system. One of my favorite parts in the discussion regarding only 10% of defendants going to trial. That number would seem extremely high to us today.

Ideally anyone charged with a crime in the U.S. is entitled to his day in court. The litany of rights is familiar: the state must prove guilt beyond a reasonable doubt, the accused has the right to be tried by a jury of his peers, and an impartial judge must carefully weigh the facts before handing down a sentence.

The reality, as anyone involved with criminal justice can attest to, is far different. In the vast majority of cases, the accused has no trial. His "day" in court is the few minutes it takes him to plead guilty. "Here we have an elaborate jury trial system, and only 10% of the accused get to use it," says Colorado Law School Professor Albert H. Alschuler. "That's like solving America's transportation problems by giving 10% Cadillacs and making the rest go barefoot." For most defendants, justice is done by way of a deal: a guilty plea in exchange for the promise of reduced charges or a lighter sentence. Bargains are generally struck with the prosecutor; the judge usually rubber-stamps them.

Plea bargaining is as widely criticized as it is prevalent. Defendants claim they are railroaded into abandoning their right to a fair trial by zealous prosecutors who "overcharge" them and then agree to reduce the charge in exchange for a guilty plea. The public, on the other hand, complains that criminal defendants get off too lightly. In plea bargaining, armed robbery often becomes unarmed robbery (this is known as "swallowing the gun"), and burglaries by night miraculously become the lesser crime of burglary by day.

Many lawyers and prosecutors defend plea bargaining as "flexible," claiming that bargaining can shape the sentence to the individual defendant. What is more, says Maricopa County (Ariz.) Attorney Charles Hyder, it is "the greatest weapon a prosecutor has. The prosecutor is in the driver's seat. Usually the defendant is not aware of any weaknesses in a case."

The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President's Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court as "essential." It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.

I thought these were interesting articles given my post on Saturday regarding the Plea Rocket Docket.

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