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Friday, September 3, 2010

Indian Penal Code - Plea Bargaining

INTRODUCTION

A Plea Bargain is an agreement in a criminal case where a prosecutor and a defendant arrange to end the case against the defendant. The defendant agrees to plead guilty to a more minor offense than charged or to a smaller number of offenses than charged. Plea bargaining is an essential part of the criminal justice system in the United States in that the vast majority of felony criminal cases in urban areas of the United States are settled by plea bargain rather than by a jury trial. The prosecutor often agrees to accept a lighter jail sentence or fine. Plea bargains are subject to the approval of the court.
The reasons for plea bargains may be several. In most cases, the plea bargain is to avoid the uncertainty of the jury trial. Prosecutors generally have wide discretion as to the charges they may bring, and therefore tend to charge the defendant with the most extreme charges that are applicable to the situation at hand. There are several benefits and losses to incorporate such a concept
In other cases, a defendant may have culpability with others in a criminal matter and at the same time have knowledge which will ensure the success of a broader or more significant prosecution. In such a case, in order to secure the defendant's willingness to testify for the prosecution in other cases, charges or sentencing in his own case may be offered to be lessened if he does, indeed cooperate fully with the prosecution.
In still other cases, prosecutors may be convinced that they have the right defendant and a completely accurate charge as to what crime(s) he committed, and yet the evidence to secure a conviction may be questionable or lacking. It is of benefit to both parties (prosecutor and defendant) to arrange a resolution of the matter without either side taking the chance that the case, once submitted fully to a judge jury, would go completely against them.
Plea bargaining is extremely difficult in jurisdictions based on civil law. Unlike common law systems, civil law systems have no concept of plea. If the defendant confesses in a civil law system, that confession is simply entered into evidence, but the prosecution is not absolved of the duty to present a full case. Also, unlike common law systems, prosecutors in civil law countries have limited or no power to drop or reduce charges once a case has been filed, and in some countries their power to drop or reduce charges before a case has been filed is limited. Many civil law jurists find the concept of plea bargaining to be abhorrent.
Critics of the system point out that the plea bargain system puts strong pressure on defendants to plead to crimes that they know that they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the defense lawyer, which puts persons who can afford good lawyers at an advantage. Furthermore, the system encourages prosecutors to overcharge at the start of a case which leads to caseload pressures. Finally, many jurists, especially in civil law nations, find the notion of plea bargaining contrary to the purpose of the law in which a specific action should be associated with a specific penalty.
By this project work of mine I have tried my level best to get an satisfactory understanding of this concept and subsequently tried to make it clear the true picture of the complex concept of Plea Bargaing. The reason I have chosen this topic as an project work was not merely to complete it as an assignment but to get a sufficient understanding of this concept that would, in return help me for pursuing my primary motive of publishing an article on ‘Plea Bargaing’ for which I was working from the starting of this semester.


WHAT IS A "PLEA BARGAIN"?
A "plea bargain" is a deal offered by a prosecutor as an incentive for a defendant to plead guilty. If every case in the justice system went to trial, the courts would be so overloaded that they would effectively be shut down. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial.
MEANING: Plea bargain - (criminal law) a negotiation in which the defendant agrees to enter a plea of guilty to a lesser charge and the prosecutor agrees to drop a more serious charge; "his admission was part of a plea bargain with the prosecutor"; "plea bargaining helps to stop the courts becoming congested".
Definitions of Plea Bargain:

1. An agreement between the defendant, a judge, and a prosecutor in which the defendant admits guilt, usually in exchange for a promise that a particular sentence will be imposed.
2. Negotiation between the prosecutor and the accused to exchange a guilty plea for conviction of a lesser charge, subject to approval by the court.
3. Pretrial negotiations in which the defendant agrees to plead guilty to a lesser charge if more serious charges are dropped.
4. An agreement by the prosecutor to recommend charge or sentence reduction to the judge in exchange for the defendant's agreement to plead guilty.
5. A plea bargain usually involves a plea by a criminal defendant of guilty or nolo contendere (no contest) to a lesser offense or to only one of several charged offenses in return for an agreed-upon disposition.
6. The negotiation of an agreement between a prosecutor and a defendant whereby the defendant is permitted to plead guilty to get a reduced sentence.
7. Outside of courtroom, defense discusses with prosecutor whether charges should be nulled, changed or dismissed.
8. The process whereby the accused and the prosecutor negotiate a mutually satisfactory disposition of the case. The defendant may plead guilty to a lesser offense or to only one or some of the counts in a multicount indictment. In return, the defendant seeks concessions on the type and length of the sentence or a reduction of counts against him.
9. The process by which the accused agrees to enter a plea of guilty, often to a lesser offence, in exchange for a promise by the prosecuting attorney to recommend either a relatively light sentence or a dismissal of part of the charges.
10. A compromise between the defendant and the prosecution where the defendant pleads guilty to an amended or a lesser charge.
11. Agreement between prosecution and defense that the accused will admit having committed a crime, provided that other charges are dropped and the recommended sentence is shortened.
12. A negotiation in which the defendant agrees to enter a plea of guilty to a lesser charge and the prosecutor agrees to drop a more serious charge; "his admission was part of a plea bargain with the prosecutor"; "plea bargaining helps to stop the courts becoming congested".
13. This is a special form of criminal procedure where the accused and the Public Prosecutor ask the Judge for a reduction of up to one third of the sentence, which would otherwise be imposed for the offence committed. Plea bargaining is only allowed for less serious offences. The pre-requisite for plea bargaining is an implicit admission of guilt by the accused and the agreement between the accused and the Public Prosecutor on the choice of this special procedure. The Judge may accept the accused's request with regard to the sentence even if the Public Prosecutor does not agree. If the conviction is on the basis of an agreement between the accused and the Public Prosecutor an appeal is not available.

THE TYPES OF "PLEA BARGAINS”
There are two types of plea bargain:
 1. CHARGE BARGAIN
A "charge bargain" occurs when the prosecutor allows a defendant to "plead guilty to a lesser charge," or to only some of the charges that have been filed against him. For example, a defendant charged with burgarly may be offered the opportunity to plead guilty to "attempted burglary." A defendant charged with Drunk Driving and Driving With License Suspended may be offered the opportunity to plead guilty to just the drunk driving charge.
 2. SENTENCE BARGAIN
A "sentence bargain" occurs when a defendant is told in advance what his sentence will be if he pleads guilty. This can help a prosecutor obtain a conviction if, for example, a defendant is facing serious charges and is afraid of being hit with the "maximum" sentence. Typically, sentence bargains can only be granted if they are approved by the trial judge. Many jurisdictions severely limit sentence bargaining.

Sentence bargaining sometimes occurs in high profile cases, where the prosecutor does not want to reduce the charges against the defendant, usually for fear of how the newspapers will react. A sentence bargain may allow the prosecutor to obtain a conviction to the most serious charge, while assuring the defendant of an acceptable sentence.
QUESTIONS PERTAINING TO PLEA BARGAINING

 What Happens If I Break My Deal With The Prosecutor?
A plea bargain is a contract between the prosecutor and the defendant, and both parties are required to comply with the terms of their contract. If you have a plea bargain with the prosecutor and you are required to perform particular tasks (such as pleading guilty on a particular date, cooperating in the investigation of another offense, or testifying against a co-defendant), the prosecutor may revoke the plea bargain if you fail to satisfy your duties .
 What Happens If The Prosecutor Breaks His Deal With Me?
If the prosecutor breaks a deal with a defendant, the defendant may seek to have his plea set aside, or may seek a court order requiring the prosecutor to respect the plea bargain. This may happen if the prosecutor has agreed not to authorize additional criminal charges against the defendant in return for the guilty plea, yet subsequently files the charges.
 How Do I Make Sure That My Plea Bargain Is Followed?
Make sure that the plea deal is clearly stated on the record at the time of your plea. Sometimes, the plea deal will be reduced to writing, and will be signed by the parties. It is usually adequate to reference the written plea agreement on the record, without reciting all of the terms. During your sentence, the court will ask you about any promises that you have received, other than the plea bargain stated on the record, in return for your guilty plea. If you answer that there are none, yet the terms of your plea are not on the record, you may find yourself without any recourse if the prosecutor only respects those terms that were stated on the record .
There are rare exceptions to the rule of placing the entire plea agreement on the record. Sometimes, the defense, prosecutor and judge will work out a resolution of a high profile case, but will not want to place the terms of the deal on the record. (For example, the prosecutor may not want the adverse publicity of looking "soft on crime," and the judge may not want to admit to engaging in "sentence bargaining" in a serious case.) However, don't assume that your case falls into this small category of exceptions - ask your attorney before you plead guilty to make sure that the entire agreement is part of the record (either directly or by reference to the contract), and make the attorney explain any decision to depart from this practice.
 When Should I First Consider a Plea Bargain?
The answer to that depends upon the facts of your case, and the laws and procedures of the jurisdiction where you are charged. However, in many cases it can be advantageous to retain an attorney and seek a plea bargain before you have been charged with an offense. For example, if your attorney can begin negotiations with a prosecutor while the police are still investigating or before you are formally charged with a crime, you may be able to obtain a reduction of charges that would not be available after charges are officially filed.

 Plea Bargains: Why and When They're Made?

As criminal courts become ever more crowded, prosecutors and judges feel increased pressure to move cases quickly through the system. Trials can take days, weeks or sometimes months while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable -- but a plea bargain provides both prosecution and defense with some control over the result.
For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means that less than 10% of criminal cases result in a trial. And though some still view plea bargains as secret, sneaky arrangements that are antithetical to the people's will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court.
In theory, a plea bargain may be negotiated at any time after arrest. In practice, however, the time to plead depends on the court and the jurisdiction -- some jurisdictions allow plea bargains only during certain phases of the criminal process. In many other places, however, plea bargains can be worked out virtually any time -- from shortly after the defendant is arrested (before the prosecutor files criminal charges) up to the time a verdict is reached -- even during trial itself. Also, if the trial results in a hung jury (the jurors are split and cannot make the unanimous decision required), the prosecution and defense may (and often do) negotiate a plea rather than go through yet another trial.
ADVANTAGES OF PLEA BARGAINING
 For The Accused
For most accused the principal benefit of plea bargaining is receiving a lighter sentence for a less serious charge than might result from taking the case to trial and losing.
Another benefit that accused can reap from plea bargaining is that if they are paying for their defence, they can save on attorney fees, always takes more time and effort to handle a trial than to a plea bargain.
 Incentives To Many Judges And Prosecutors.

For a judge, the primary incentive for accepting a plea bargain is to move along a crowded calendar. Most judges simply don't have time to try every case that comes through the door.
Additionally, because jails are overcrowded, judges may face the prospect of having to release convicted people (housed in the same facilities as those awaiting trial) before they complete their sentences. Judges often reason that using plea bargains to "process out" offenders who are not likely to do much jail time leads to fewer problems with overcrowding.
For a prosecutor, the judge's concerns about a clogged calendar are the prosecutor's concerns as well. When the judge is bogged down, the judge puts pressure on the prosecutors to move cases along quicker. To keep judges happy -- and keep the machine rolling -- prosecutors must keep "the bodies" moving (as criminal defendants are most unfortunately referred to by some courthouse regulars).
Of course, prosecutors are also concerned about their own calendars. Crowded calendars mean that the prosecutor's staff is overworked. Plea bargains tend to lighten everyone's caseload. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor's budget. With today's cutbacks on already slim resources, prosecutors feel they will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains.
Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a "slam dunk." The prosecution may wage a long, expensive and valiant battle, and still lose the case -- as did prosecutors in the O.J. Simpson criminal trial, for example.
Plea bargains also give prosecutors flexibility. For instance, they can offer a deal to someone whom, though guilty, has given testimony about a co-defendant or helped resolve some other troubling case.
Finally, prosecutors may use plea bargains to circumvent laws they don't agree with. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor's office may have an unwritten policy of giving all such offenders "offers they can't refuse," such as a $25 fine and 10 hours of community service. Or, in some cases, the prosecutor may simply dismiss the case in the interests of justice.

 Some Other Benefits
# Getting Out of Jail:- Defendants who are held in custody -- who do not qualify for release on their own recognizance or who either do not have the right to bail or cannot afford bail -- may get out of jail immediately following the judge’s acceptance of a plea. Depending on the charge, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time, but will still get out much sooner than if he or she insisted on going to trial.
# Resolving the Matter Quickly:- This has the intangible benefit, touched on above, of providing resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait -- and causes much more stress -- than taking a plea bargain.
# Having Fewer or Less Serious Charges on One's Record:- Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the charges looks a lot better on a defendant's record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction for driving under the influence (DUI) may carry mandatory jail time; whereas if the first DUI charge had been bargained down to reckless driving, there may be no jail time for the "second" DUI.
# Having a Less Socially Stigmatizing Charge on One's Record:- Prosecutors may reduce charges that are perceived as socially offensive to less offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a murder case to an assault. This can have a major impact on the defendant's relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing charges may be at a greater risk of being harmed (or killed) in prison than if they are convicted of a charge that doesn't carry the same stigma.
# Avoiding Hassles:- Some people plead guilty -- especially to minor first time offences -- without hiring a lawyer making use of legal aid centres and or clinics. If they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.
# Avoiding Publicity:- Famous people, ordinary people who depend on their reputation in the community to earn a living and people who don't want to bring further embarrassment to their families all may chose to plead guilty to keep their names out of the public eye. While news of the plea itself may be public, the news is short-lived compared to news of a trial.
# Keeping Others Out of the Case:- Some defendants plead guilty to take the blame (sometimes called the "rap") for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.”

IN THE YEARS PLEA BARGAINING WAS PLEADED

1633: Galileo gets house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies.
1931: Al Capone brags about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then declares that he isn't bound by the bargain, and Capone does seven and a half years in Alcatraz.
1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin Luther King Jr. and gets 99 years.
1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charge of failing to report income; he gets three years' probation and a $10,000 fine (roughly one-third of the amount at issue).
1990: Facing serious federal charges of insider trading, Michael Milken pleads to lesser charges of securities fraud; soon after, his 10-year sentence is reduced to 2 years .
A WAY TO REDUCE OVERCROWDING
(A Statistial Outline)
Most prisons in South Africa are severely overcrowded with some accommodating up to three times the number of people for which they were designed. To add to this our courts are faced with a backlog of many, many cases which means that it takes weeks, months and in many cases years to finalize a criminal prosecution. That has resulted in an awaiting-trial prisoner population of 55 000 out of the total of 174 000 prisoners.
This situation has two important implications, the first being the cost to the taxpayer of the awaiting- trial prisoners which amounts to about R5.5 million per day or more than R2 billion per annum, money which could have been spent on schooling, medical health and work creation, to mention but a few. Secondly, because of overcrowding our prison services cannot give adequate effect to the provisions of the Constitution that all prisoners should be kept under humane conditions. Without humane treatment one cannot begin to contemplate the successful rehabilitation of offenders, which may be the reason why our recidivism rate is so high.
Steps to reduce overcrowding have been taken by government departments, NGO’s and other role players and for the first time since 1995 the number of unsentenced prisoners in custody has decreased compared to the previous year bringing the number down to an average of 53 748 prisoners for the year 2001.
With the approval by Parliament of the Criminal Procedure Second Amendment Act, 62 of 2001, a new and exciting option has been introduced in our criminal procedure. This option is commonly referred to as “Plea Bargaining”
In the United States of America plea-bargaining has been used with great success to speed up criminal trials. It is reported that 90% of all convictions come from negotiated pleas, which means that less than 10% of criminal cases result in a full trial. It is also reported that “Trials can take days, weeks and sometimes months while guilty pleas can often be arranged in minutes.”
PLEA BARGAINING AND IMPRISONMENT.
In the directives issued by the National Director of Public Prosecutions in March 2002, it is stated that “Negotiating a plea and sentence agreement is not to be understood as meaning the bargaining away of a sentence of imprisonment for a non-custodial sentence. Where justice and/or the public interest require(s) an effective sentence of incarceration, that is the stance to be taken. If those considerations dictate a shorter term of imprisonment or an alternative sentence, the position is different.”
From the above it is clear that plea bargaining is not intended as a substitution to imprisonment. Plea bargaining may well mean that the accused will face a prison sentence however the benefit of negotiating a sentence vs. an extended and costly trial which may case result in a longer prison sentence should be considered.
DISTINCTION BETWEEN A PLEA OF GUILTY & PLEA BARGAINING
It is important to emphasize the distinction between a plea of guilty and plea bargaining. A plea of guilty means that an accused will, prior to or during his/her trial, admit to having committed a crime without any “negotiations” about the consequences of such admission of guilt. This admission of guilt is normally in the form of an affidavit and forms part of the court records of such case and is submitted into evidence during the trial.
In contrast, plea bargaining is a process of “negotiations” between on the one side the accused and his/her lawyer and on the other side the prosecutor during which negotiations the two parties agree to settle the matter. Should the negotiations fail or the plea bargaining agreement be rejected by the court, the accused has the right to be presumed innocent and the state must then, in a court of law, prove that the crime was committed by the accused without reference to the plea bargaining offer or any of the statements made by the accused in this regard.
DIFFERENT VIEWS ON PLEA BARGAINING
The recent cases of Michael Kopper, and John Walker Lindh, both ended with a practice that, according to Stephen Schulhofer , is wrongly considered almost ''inevitable'' by most players in the justice system: a plea bargain. Kopper exemplifies one common type -- the white-collar criminal with a good lawyer who agrees to help prosecutors hook bigger fish in exchange for a much lighter sentence than he might otherwise get (and thereby sparing the state the costs of a trial). Lindh typifies the defendant who pleads to avoid the possibility of execution; the government's reward includes not having to expose security sources (or, perhaps, a weak case) if the case goes to trial.
The Bill of Rights makes no mention of the practice when establishing the fair-trial principle in the Sixth Amendment, but the constitutionality of plea bargaining has been repeatedly upheld, and the bargain's basic dynamic is well known to viewers of pulp TV. In fact, says Albert Alschuler , roughly 90 percent of convictions occur when the defendant waives the right to trial and pleads guilty. And most of those pleas involve a deal that reduces punishment.
According to George Fisher, a former prosecutor now at Stanford Law School: ''The general public tends to regard plea bargaining as too lenient. The defense bar and others of like mind think it too coercive.'' Schulhofer and Alschuler are among the strongest academic critics of the practice, emphasizing the economic motivation behind it. ''Court-appointed defenders are typically paid for only the first 15 or 20 hours' worth of work -- and prosecutors have a strong incentive not to lose,'' Schulhofer says. ''This is a conflict of interest problem.''
The efficiency gained by plea bargains outweighs their evils, proponents say. Some members of the so-called law-and-economics school, like Frank Easterbrook , also claim that plea bargaining gives defendants more autonomy.
STATISTICS OF U.K
These statistics are the outcome of the research done by the R.F. Purves . The conclusion of that research published in an article is as follows:-
Each of 112 defendants came with the purview of the contested trials research precisely because he had indicated, usually have the matter tried before the judge and the jury. In most cases it was not until practically the last minute that is at the beginning of the very day set aside for the trial that the defendant decided to change his plea. 48 of the 112 defendants decided to plea guilty to the whole indictment as it stood. The remaining 64 defendants negotiated to plead guilty to only one (or some) of the charges of the indictment and not guilty to the others.
Stephanos Bibas in his article talks of shadow-of-trial model. In this model, ra¬tional parties forecast the expected trial outcome and strike bargains that leave both sides better off by splitting the saved costs of trial. For example imagine that a tort plaintiff suffered $100,000 in damages but that a jury is only 50% likelt to find that the defendant was negligent. The plaintiff and defendant should therefore settle for $50,000 minus some fixed discount proportional to the costs saved. This shadow-of-trial model now dominates the literature on civil settlements.
the shadow-of-trial model purports to justify plea bargaining, obviate additional safeguards on bargains, calibrate sentences to culpability and proof, and deter entrapment and prosecution of weak cases. If the shadows of trials are so fuzzy and warped, however, we should have much less faith in unregulated plea bargaining. Further research must consider more safeguards, such as discovery mechanisms, debiasing interventions, use of mediators or other structured dispute resolution, and judicial involvement.
Another article says that defining characteristic of American-style plea bargaining may be that it does not exist in shadows, because it so often fails to inter-nalize the laws that purport to govern it. The bodies of law, state and federal, that claim to define crimes and sentences do not really do what they claim. Instead, those bodies of law define a menu — a set of options law enforcers may exercise, or a list of threats prosecutors may use to induce the plea bargains they want. The menu says little about what options are exercised or what threats are used. The real law of crimes and sentences is the sum of those prosecutorial choices. That law is nearly opaque; even those who study the criminal justice system for a living know very little about it. If plea bargains exist in some legal shadow, the shadow is cast by that law — the law that prosecutors make — and not by the law one reads in code books or case reports.
CASES
1. R v. Turner
Status : Court of appeal
Judges: Lord Parker C.J.,Wilder L.J & Bean J.
Facts: T was indicated for theft & pleaded not guilty. During the course of prosecution T’s counsel strongly advised him to change his plea saying that if he did so he might well receive a non-custodial sentence where if he did not he ran the risk of prison sentence. T refused. T’s counsel then went to see the judge & on his return repeated his advice. T continued for a time then did so.(agreed to plead guilty). He was fined & ordered to pay costs. T appealed on the ground that his change of plea was not voluntarily because his counsel put undue pressure on him & he believed that his counsel was expressing the view of the judge.
HELD : It was held that there was no evidence that the counsel had exceeded his duty. Counsel has a duty to advise & is entitled to do so in strong terms provided it is made clear that the ultimate choice is that of the defendant. However, in the circumstances T might well have got the impression that the view expressed by counsel was that of the judge & there was nothing to show that he was discussed of that impression. Although, he was told that the choice was his, the court felt that he did not have a free choice. The court would treat plea as nullity & order a venire de novo .
The court made the following observation as to plea bargining :
1) Counsel must be free to do his duty to give the best advice he can, including advice that a plea of guilty may will enable the court to give a lesser sentence. He should emphasise that the defendant must not plead guilty unless he committing the offence.
2) The defendant must have a a complete freedom of choice as to his plea.
3) A judge should never indicate the sentence he is minded to impose except if he is in a position to say that what ever the plea the sentence will be the same.
4) Whenever a discussion about the sentence has taken place between judge and counsel the defendant should be told informed of what was said.

2 . United States v. Speed Joyeros
Decision by : Judge Jack B. Weinstein
FACTS: Defendant Hebroni and codefendants were charged with using jewelry businesses in Panama to launder some $ 10,000,000 of drug money. The prosecution was controlled by the Narcotics and Dangerous Drugs section of the United States Department of Justice, from Washington, D.C., rather than by the district's United States Attorney.
After lengthy pre-trial proceedings, drawn out over a period of more than a year and a half largely because of failure of the government to produce the huge amount of documents seized by the government of Panama; successive grants of bail by the trial court which were overturned on appeal; and strong government opposition to payment of defense counsel from defendant's known assets, all of which had been seized; defendant and the government entered into a plea agreement. It required defendant to be incarcerated for a term of somewhere between 33 and 41 months under the guidelines, and to give up all her assets. Without such an agreement, upon conviction she would have faced a prison sentence of 151 to 188 months and possibly more, based on a level of 34 or higher.
HELD: Ultimately defendant's plea was accepted by the court. While defendant agreed not to seek a downward departure, the agreement did not limit the court's independent authority to consider such a departure. On the basis of the presentence report, briefs by both sides and sentencing hearings, the court departed downward 2 levels and sentenced the defendant to a total of 27 months in prison and forfeiture of all her personal and business assets, a fine, and a term of supervised release of three years, during which time defendant may not engage in the jewelry or rare metals business, nor conduct any business in Panama.

3. In Brady v. United States, the Supreme Court explained that a plea agreement is based upon mutual advantages gained by both the prosecutor and the defendant. If the defendant is "fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel" the plea may be considered "voluntary." Id. at 755. Courts recognize that "a great many defendants are no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury."

4. In Miller v. Angliker, a plea is valid "if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." The words "overbearing" and "sheer inability" imply that some degree of "coercion" does not negate the validity of a guilty plea. Rather, forbidden is only "coercion" that is so overbearing to the defendant's will that he or she cannot make a rational decision. Undue coercion may be "mental as well as physical" and may be the result of "subtle pressures" by the government on a defendant
THE UNITED STATES SCENARIO
In the United States, the so-called system of plea bargaining is regarded by the most lawyers as a desirable feature of the criminal process. This may be easy to understand when we find that in many of the states penal statutes are extremely severe and sentences in practice can be very long.
In the light the ‘the bargained plea’ is a useful device for ensuring that a defendant will be punished while avoiding at the same time the risk of an unduly harsh penalty allowed by the legislatures.
A “Plea Bargain” is an agreement between the state and the defendant, which is approved by the court. Generally plea bargain consists of the prosecutor making concession , such as an agreement that the state will dismiss a second count against the defendant in exchange for the defendants concessions to plead guilty or nolo conterdere. A defendant who willingly enters a plea of guilty has extended a substantial benefits to the state and deserves to have a substantial benefit extended to him or her in return .Such benefits include reducing penal conseguences and avoiding the humiliation of a trial.
The fact that the plea bargaining process exerts pressure on the defendant to plead guilty and abandon a series of fundamental rights does not preclude the government from encouraging a guilty plea by offering substantial benefits in return for such plea. The fact that there is some potential for abuse of the prosecutorial bargaining power is not sufficient basis for foreclosing plea negotiations altogether. However, a plea in involuntary and void when the defendant is induced to enter it by deception, unfulfilliable promise or misrepresentation and if it was induced by promise or threats which deprive it of the character of a voluntary act.
In the United States of America plea-bargaining has been used with great success to speed up criminal trials. It is reported that 90% of all convictions come from negotiated pleas, which means that less than 10% of criminal cases result in a full trial. It is also reported that “Trials can take days, weeks and sometimes months while guilty pleas can often be arranged in minutes.”
It has been argued that the American criminal justice system would simply cease to function without plea bargaining, and that it forms a framework wherein the accused and his accusers can reach an agreement which settles the case once and for all, in what is hoped will be a spirit of fairness.
THE INDIAN SCENARIO
The main advantage that plea bargaining will have in the Indian context will, be the speed with which case can be dealt with. Instead of being kept in prison awaiting trial under harsh overcrowded conditions for months and years a person may by way of plea bargaining expedite the matter. As a result the accused may immediately get involved in rehabilitation programmes whether imprisoned or not. Unfortunately because of restrictions by law and resources the Department of Correctional Services is currently not involving awaiting trial prisoners in rehabilitation, recreation and social care programmes. The Department of Correctional Services is better equipped to deal with sentenced prisoners than with the large number of awaiting trial prisoners.
Overcrowding is also at its worst among awaiting trial prisoners. The advantages that plea-bargaining will have on our current awaiting trial prison population is clear and could bring the numbers down dramatically. We should therefore influence its implementation and utilization as widely as possible.
During the last few months we have seen the implementation of plea-bargaining in some courts but not nearly enough. We have to use plea-bargaining in many more cases especially those where people are awaiting-trial in prison. We should engage in a process of informing awaiting trial prisoners and their legal representatives of the concept of plea-bargaining if the advantages it has for the accused and of the procedure which they have to follow should they be interested to plea bargain.
Also an article speaks about the recommendations of Malimath committee and various other recommendations made by law commission and committees, along with upcoming needs of plea bargaining in India

REPORT OF MALIMATH COMMITTEE
The Committee on Criminal Justice Reforms, headed by a former Chief Justice of the Karnataka and Kerala High Courts and former member of the National Human Rights Commission of India, Justice V.S. Malimath (“Malimath Committee”), submitted its report to the Government of India’s Ministry of Home Affairs in March 2003.
In its report, the Malimath Committee recommended that a system of plea-bargaining be introduced into the criminal justice system of India to facilitate the earlier resolution of criminal cases and reduce the burden on the courts (Recommendation 106). The Malimath Committee endorsed the recommendations previously made by the Law Commission of India, as contained in the Law Commission’s 142nd and 154th reports, on the form that such a system of plea-bargaining should take. The Law Commission’s recommendations in this respect are comprehensive and essentially sound. The Malimath Committee’s endorsement is therefore welcome.
Now, the draft Criminal Law (Amendment) Bill 2003, which was introduced in Parliament on 22 August 2003 – the last day of the previous Parliament session – seeks to introduce a new chapter on plea-bargaining into the Code of Criminal Procedure, 1973. The bill, however, in no way resembles the concept of plea-bargaining recommended by the Law Commission of India and endorsed by the Malimath Committee. Instead, it contains a plea-bargaining scheme which would sacrifice justice in the name of the elimination of delay in the disposal of cases.
The attempt to provide a legislative framework for plea-bargaining in India is valid, as plea-bargaining already takes place on an informal basis, and unregulated bargaining is susceptible to abuse. However, to ensure due process and respect for the Indian criminal justice system, any plea-bargaining scheme must be carefully regulated and visible. Adequate safeguards must be put in place to protect the innocent and punish the guilty, as pervasive bargaining without transparency and specific guidelines will perpetuate the image that justice is for sale and will inevitably lead to public cynicism.
Under the plea-bargaining scheme proposed by the bill, however, an accused person must file with the court a written application for plea bargaining, accompanied by a sworn affidavit. Following an examination of the accused by the court in chambers, the public prosecutor, the accused, the police officer who investigated the case and the victim participate in a meeting to “work out a mutually satisfactory disposition of the case”. If a “satisfactory disposition” is reached, the court must prepare a report of the disposition and dispose of the case by awarding compensation to the victim and sentencing the accused.
 Some of the major flaws in the plea-bargaining scheme proposed by the bill include:
• The failure to use an independent, judicial authority to receive and assess the plea-bargaining applications. A judge or magistrate may be biased against the accused, as, in the event of the application being rejected, they may well oversee the trial knowing that the accused was previously prepared to plead guilty. This is clearly unfair to the accused.
• Given that most accused persons are illiterate and do not have access to defence counsel, the form of the application (i.e. it must be in written form and accompanied by an affidavit) means that the system of plea-bargaining will predominantly be used by the rich, who can afford legal counsel, or by those who are approached by the police/prosecution and coerced into making an application.
• The court’s examination of the accused in chambers, as opposed to open court, will lead to public cynicism and distrust for the plea-bargaining system.
• The failure to require the court to ensure that the accused understands the implications of entering into a plea-bargain will inevitably lead to injustice for the accused, particularly given the likelihood that most accused persons will not be able to afford legal advice.
• Involving the police in the bargaining process invites coercion.
• Involving the victim in the bargaining process invites corruption.
• The bill ignores the inherent power imbalance between the prosecution and the accused, and given that in India today an accused person may face the prospect of years in jail as an undertrial, there is a significant risk that innocent people will plead guilty under a plea-bargaining scheme. Pressure from the prosecution and the police may also lead to the innocent pleading guilty.
• The failure to provide guidelines regarding the exercise of prosecutorial discretion will lead to misuse and inconsistent bargains for similar crimes.
• By involving the court in the bargaining process, the court’s impartiality is impugned, and the failure to provide the court with a broad discretion to reject the plea-bargain will inevitably lead to injustice.
• The failure to make confidential any order passed by the court rejecting an application will create prejudice against the accused.
The Malimath Committee pointed to the success of the plea-bargaining system in the United States as justification for the introduction of a plea-bargaining scheme in India. However, it is important to keep in mind that there is a well established system of safeguards in place in the United States to protect the innocent from conviction, including the need for probable cause prior to arrest, preliminary hearings before an independent magistrate or grand jury, practical access to defence counsel for all accused persons and the requirement that all plea offers be made to the defence counsel and not the accused person directly.
Furthermore, Rule 11 of the Federal Rules of Criminal Procedure comprehensively outlines the procedure which governs plea-bargaining in the federal system in the United States, and ensures due process in the following ways:
• the judge must ensure that the defendant understands the charge and the implications of the plea and that the plea is voluntary;
• the judge must ensure that the plea has basis in fact and would further the administration of justice;
• the judge has a supervisory role and cannot participate in the bargaining; and
• the judge has a broad discretion as to whether to accept or reject the plea.
As discussed above, the provisions of the bill are flawed in many respects. In order to ensure due process, a system of plea-bargaining should encompass the following minimum requirements:
1. The accused must be represented by counsel;
2. The hearing must take place in open court;
3. The judge overseeing the implementation of the scheme must be impartial and in no way involved in the bargaining;
4. The judge must be satisfied that the accused is pleading guilty knowingly and voluntarily;
5. The judge must retain a broad discretion as to whether to accept or reject the plea-bargain; and
6. Any court order rejecting a plea-bargaining application must be kept confidential to prevent prejudice to the accused.
The scheme envisaged by the bill fails to satisfy these minimum requirements, and, in doing so, it fails to prescribe a fair, just and reasonable procedure and would therefore arguably violate Article 21 of the Indian Constitution.
If implemented, the plea-bargaining scheme under the bill will undermine the public’s confidence in the criminal justice system of India, and will lead to the conviction of the innocent, inconsistent penalties for similar crimes and lighter penalties for the rich.
Given that the bill seeks to implement a system of plea-bargaining in the name of the Malimath Committee, it is surprising that no member of the Malimath Committee has come forward to point out the glaring differences between the two documents. Those concerned about the state of India’s criminal justice system – and its future – would do well to carefully study the bill. They will find in it an unmistakable attempt to subvert the system. The likely implications of such legislation are too serious to be ignored
INDIAN CASES
• Madanlal Ram Chandra Daga etc. v. State of Maharashtra wherein the Court held:-
"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. We do not approve of the action adopted by the High Court..."

• Murlidhar Meghraj Loya v. State of Maharashtra
"To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance. Many economic offenders resort to practices the Americans call 'plea bargaining' 'plea negotiation', 'trading out' and 'compromise in criminal cases' and the trial magistrate drowned by a docket burden nods assent to the sub rosa ante-room settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, 'trades out' of the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'. These advance arrangements please everyone except the distant victim, the silent society. The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic battles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his old profession. It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences this practice intrudes on society's interests by opposing society's decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law. The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it philosophically as a sentence concession to a defendant who has by his plea 'aided in ensuring the prompt and certain application of correctional measures to him': in civil cases we find compromises actually encouraged as a more satisfactory method of settling disputes between individuals than an actual trial. However, if the dispute... finds itself in the field of criminal law, "Law Enforcement" repudiates the idea of compromise as immoral, or at best a necessary evil. The "State" can never compromise. It must "enforce the law". Therefore open methods of compromise are impossible .
• In State of Uttar Pradesh Vs.Chandrika
- (K.T. Thomas and M.B. Shah, JJ.)
This case discussed over the reduction of sentence- It was held that the sentence could not be reduced on the mere ground of acceptance or admission of guilt - The concept of ‘plea bargaining’ was not recognized and was against the public policy under the criminal justice system – Therefore, it should not be encouraged.
It was said that the concept of 'plea bargaining' is not recognized and is against public policy under our criminal justice system. Section 320 Cr.P.C. provides for compounding of certain offences with the permission of the Court and certain others even without permission of the Court. Except the above, the concept of negotiated settlement in criminal cases is not permissible. This method of short circuiting the hearing and deciding the criminal appeals or cases involving serious offences requires no encouragement. Neither the State nor the public prosecutor nor even the Judge can bargain that evidence would not be led or appreciated in consideration of getting flee bite sentence by pleading guilty.
• In Ganeshmal Jashraj v. Government of Gujarat and Another
the High Court had enhanced the sentence for the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 by holding that it was patently in breach of the requirement of the said Section, which provided for a minimum sentence of imprisonment for three months(now six months). This Court set aside that order by holding that there can be no doubt that when there is an admission of guilt made by the accused as a result of plea bargaining or otherwise, the evaluation of the evidence by the Court is likely to become a little superficial and perfunctory and the Court may be disposed to refer to the evidence not critically with a view to assessing its credibility but mechanically as a matter of formality in support of the admission of guilt. The entire approach of the Court to the assessment of the evidence would be likely to be different when there is an admission of guilt by the accused. In Thippaswamy v. State of Karnataka Court observed that it would be violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him. This Court strongly disapproved the practice of plea bargain in Kuchhia Patel Shantilal Koderlal v. State of Gujarat and another , the Court held that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. In that case accused was convicted under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 by the Megistrate on the basis of plea bargaining which took place between prosecution, the defence and the learned Magistrate and accused was let-off with a nominal sentence of imprisonment till rising of the Court and a small fine. The High Court on its attention being drawn towards the order passed by the learned Magistrate initiated suo motu proceeding in the revision by issuing notice to the accused to show cause why the sentence imposed on him should not be enhanced. The High Court enhanced the sentence and sentenced the accused to imprisonment for a term of three months and a fine of Rs.500/-. That order was challenged before this Court. The Court held that the conviction of the accused was based solely on the plea of guilty entered by the appellant as a result of plea bargaining between the prosecution, the defence and the learned Magistrate. The Court observed that:-
"it is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty, on an allurement being held out to him that if enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be viotative of the new activist dimension of Article 21 of Constitution unfolded in the case of Maneka Gandhi V. Union of India It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial which, having regard to our cumbrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be deflected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the magistrate must be held to be unconstitutional and illegal. "
Hence, it is settled law that on the basis of plea bargaining Court cannot dispose of the criminal cases. The Court has to decide it on merits. If accused confesses his guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of evidence on record. If he is guilty, appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the Court's conscious must be satisfied before passing final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced.
9. In the result, appeals are allowed. Impugned order dated 28th November, 1997 passed by the High Court is quashed and set aside. The High Court is directed to decide the appeals on merits in accordance with law.
CONCLUSION
In terms of controlling discretion through formal rules, the subject of plea bargaining inspires considerable pessimism. Attempting to abolish plea bargaining outright appears to be futile. Controlling the decision to charge through bureaucratic means, on the other hand, produces very mixed results. In some instances it moves discretion upstream or downstream, with results that are not necessarily desirable. Procedural reforms, meanwhile, do not touch the substance of negotiated pleas. Plea bargaining, in short, is an extremely elusive phenomenon which cannot be reduced to a single decision point that can be isolated and controlled.
This may be an overly pessimistic conclusion. The attempt to control discretion in plea bargaining has yielded some gains. As is the case with police discretion and bail setting, we have succeeded in bringing out into the open a critical decision affecting individual liberty. We now have a realistic understanding of what goes on between arrest and trial.
"Plea bargaining is an essential component of the administration of justice. Properly administered, it is to be encouraged . . . It leads to prompt and largely final disposition of most criminal cases."
"Where is appears that the interest of the state in the effective administration of criminal justice will be served, the prosecution, while under no obligation to negotiate any criminal charges, may engage in plea negotiation for the purpose of reaching an appropriate plea agreement."

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