By  Kayode Oladele

Not until the crush of civil litigation brought on by the explosion of personal injury cases in the industrial era did judges begin to appreciate the workload relief plea bargaining promised”.

“In other words, plea bargaining is arguably another outgrowth of late-19th-century industrialization”. (Dirk Olin, Plea Bargain, The New York Times Magazine, September 29, 2002). Black’s Law Dictionary defines it as follows: “[the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

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 while a “sentence bargain” occurs when a defendant is told in advance what his sentence will be if he pleads guilty. In U.S, England and Wales and Australia, it is allowed only to the extent that the prosecutors and the accused can agree that the accused will plead guilty to some charges and the prosecutor will drop the remainder.

However, while both the prosecutor and the Defendant can bargain on the charges, they do not have the power to decide what the appropriate penalty would be. In U.S, less than ten percent of criminal cases go to trial. A defendant cannot bargain on the issue of penalty which is exclusively determined by the presiding judge even though, it is the prosecutors that make sentence recommendation to the judge. The judge, however, is not bound to follow the prosecution’s recommendation.

The judge must agree to the result of the plea bargain before accepting the plea. This implies that the judge reserves the prerogative to reject a bargain if he feels uncomfortable with it or if he is of the opinion that it was not intelligibly and voluntarily entered into by the accused. A guilty plea must be an informed choice entered into voluntarily by the defendant. Due process of law prohibits all the government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.

The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. However, because defendants who plead guilty would waive three fundamental constitutional rights- the rights to trial, confront and cross examine the accusers and be free from self incrimination including exculpatory or impeachment evidence that tends to establish the factual innocence of the accused, the Court record must disclose that the accused person voluntarily and knowingly pled guilty to the charges.

To this effect, the validity of a plea bargain is dependent upon three essential components: knowing waiver of rights, voluptuary waiver and a factual basis to support the charges to which the defendant is pleading guilty. Courts will usually take proofs to ensure that the above three components are satisfied before accepting the recommendation of the prosecution.

In practice, effective assistance of counsel in criminal actions also includes an ability to bargain and negotiate on behalf of the accused person. Effective assistance of counsel in criminal cases can also involve a situation where an attorney may advise his client to agree to testify against a co- defendant or to provide evidence that incriminates a co- defendant. Under this arrangement, the prosecutor may agree to either dismiss or reduce the charges against a defendant if he agrees to testify against his codefendant as a prosecution witness.

Many have dubbed this arrangement as being analogous to bribery but the U.S Courts have ruled that the federal bribery statute did not apply to the federal government (U.S Attorneys) with respect to plea bargains. However, when the negotiated agreement fails or the parties fail to reach an agreement or the agreement is revoked by either or both parties, statements or confessions made by the accused during the negotiation are inadmissible against the defendant during trial.

The process has not gone without challenges even in the jurisdictions where it is very popular. Many perceive the process as a system in “which bargaining replaces evidence as the paramount determinant of guilt or innocence” ( Oxford ). According to George Fisher, a former prosecutor now at Stanford Law School : ‘’The general public tends to regard plea bargaining as too lenient”.

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals in U.S recommended that it should be abolished but the recommendation suffered a set back when the U.S Supreme Court ruled that the process is an “important and necessary component of the American system of justice” and subsequently called for its encouragement. “If every case went to jury trial,” wrote Mirsky and Kahn (1997) in their article in The American Prospect, “resources would have to multiply by “many times” (p. 56). Thus a provision must be in place to administer justice in a reasonable, timely and cost effective manner.