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Law relating to Plea Bargaining in Criminal justice-A comparative analysis USA, UK, INDIA

An agreement or bargaining between the accused and the prosecution where the accused proposes to plead guilty in exchange for specific concessions from the prosecution. This process is called Plea Bargaining. This concept has its inception in the United States and was recently introduced to the Indian system. The main aim of introducing this concept was to quicken the procedure and release the court from the overloaded burden and to the protection of rights of under-trail prisoners.

Irrespective of this fact it received backlash from every place. The process of plea-bargaining differs from country to country mainly due to differences in society and legal system. Therefore, this article seeks to discuss a comparative analysis of Plea Bargaining in the Criminal Justice system of the USA, UK, and India. It also discusses its concept of necessity, practicality, and disadvantages.

Plea Bargaining is the practice of the prosecution and the defense negotiating a deal in which the defendant pleads to a lesser offense or (in the case of multiple offenses) to one or more of the charges in exchange for a lenient sentencing, recommendation, a specific sentence, or the dismissal of other charges.

This implies that the accused will plead guilty to a lesser charge and if there are several charges, the accused will plead guilty to the original criminal charge in exchange for a mild sentence. Plea bargaining is defended by the supporters who argue that it expedites the legal process and ensures conviction, while opponents argue that it thwarts the administration of Justice.

The process of Plea Bargaining is mostly used in the United States.

Plea Bargaining sometimes can be "implicit plea bargains" and "explicit plea bargains." An implicit plea bargain means where no face-to-face negotiation happens and where there is "no guarantee of leniency." Explicit plea bargains mean a negotiation that results in informal agreements. Explicit Bargains are more important than implicit bargains. 

There are three primary types of plea bargains and each one involves the reduction of sentences, but it is done in a very different method for each type. They are:
Charge Bargaining:
The accused concedes to lesser charges, e.g.: It might be agreed upon by both parties that an accused charged with attempted murder pleads guilty to the lesser charge of aggravated assault, which carries a less severe punishment than attempted murder. This process is called Charge Bargaining.

Sentence Bargaining:
In exchange for an accused's guilty plea, the prosecution promises shorter penalties and lenient sentences. When criminals plead guilty to murder to avoid the death penalty is said to be one of the most obvious examples of sentence bargaining. In a less serious type of offense, a guilty plea can be traded for a sentence of "time served."

Count Bargaining:
This type of plea bargaining occurs where the accused who is charged with multiple charges may be allowed to plead guilty to fewer counts. The prosecution may drop one or more charges in return for a guilty plea on the remaining charges. It is not necessary that the charges need to be identical. Count Bargaining is said to be the least used type as it only applies to the accused charged with several offenses.

Therefore, we can say the simplest and most direct definition of Plea Bargaining is to plead guilty or to agree to a lighter punishment.

History Of Plea Bargaining

Plea Bargaining has been widely used around the world, and numerous myths claim to be the origin of the practice. The most intriguing example of Plea Bargaining started in the United States. In 1962, the first incidence of plea bargaining occurred. The alleged witches were persuaded that they would receive lesser punishment if they admitted to the crime they were charged with in front of the court.

They were also encouraged to give evidence against the other alleged witches. The witches who admitted their guilt were not prosecuted. This encouraged others to do the same. The critics who oppose the concept of Plea Bargaining serve this incident as their foundation to argue against it. The critics argue that this practice sometimes compels innocent defendants to plead guilty.

The idea of Plea Bargaining started in American history but these plea deals were rather uncommon. It started getting popular in Boston around 1832. Before that whenever any accused offered to plead guilty the Judges seemed to be taken aback. They even tried to convince them to go to the trails. The offender of public ordinances anticipates that if they plead guilty, they may face less severe sentences.

By 1850 this practice became widespread and reached the felony courts where it became a routine for the accused to plead guilty in return for the dismissal of a few charges. The Boston bargains were typically for victimless offenses and therefore the Prosecutor did not have to consider the victim's concerns. These deals may have been the first systematic use of plea bargaining.

Although the concept had not been fully accepted by the courts, because it was hard for the Judges to find whether the accused was doing so voluntarily or was compelled. Plea bargaining began to flourish slowly in the early 20th century. However, a significant presidential commission on law enforcement and administration of justice study from 1967 highlighted the widespread usage of Plea bargaining and advocated for the recognition of its practice.

In Boykin vs. Alabama, a United States Supreme Court Case, the Court held that when an accused enters a plea bargain, they waive their Sixth Amendment right to a trial by Jury. This proves that an accused may not waive his Constitutional right unless he does so knowingly, willingly, and intelligently.

Next year the Supreme court held in Brady vs. the United States that it is acceptable to reward with reduced penalties those accused who plead guilty.

The Supreme Court of the United States ruled in North Carolina vs. Alford that there are no Constitutional restrictions on the judge that prevent him from accepting a guilty plea from an 
accused who wants to plead guilty but still asserting his innocence while being held as a detainee. This type of plea came to know as the Alford plea. 

In Santobello vs. New York (landmark case the Supreme Court ruled that if the prosecutors break the condition that is specified in the plea agreement, then the accused are entitled to legal remedy.

These four instances demonstrate the Court's belief that plea bargains are acceptable and deserving of recognition as legally binding agreements. Plea Bargaining is "not only an essential aspect of the procedure but a highly desirable part for numerous reasons," the Court claimed in Santobello. The plea agreement was established and became a practiced routine.

Plea Bargaining In The USA

The term 'Plea Bargaining' was initially used in the United States during the 19th century, and it has since developed into a key component of the country's criminal justice system. Even though the US Constitution's sixth amendment did not recognize plea bargaining, the US judicial system fulfilled the requirements. The US Supreme Court, in Brady vs the United States, supported the constitutional validity of plea bargaining and that "a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty." The Santobello vs. New York case of 1971 established the legitimacy of plea bargaining in the USA.

The plea-bargaining option is called 'the plea of nolo contendere' which means when the person does not wish to contest his case. In a significant sense, it can be claimed that this plea is conditional. This plea is said to be an implied confession of guilt. This formal declaration that an accused would not contest is predicted on an understanding between the accused and the government that the latter will only evaluate the accused's guilt in that specific case and not in other cases. It is in the court's discretion to accept such a plea or not and if the court does then it must do it without partiality. But in special circumstances, the court shall be bound to accept such a plea.

Plea Bargaining in the U.S. is exponentially wide in scope. The plea bargain is permitted for all federal crimes in the U.S. with little regulation to govern the process. The power to conduct the negotiation process remains in the prosecutor's hands. In other words, he acts as the principal negotiator for the agreement. The judge's position is still very restricted as he can only allow the negotiation after assuring that it is voluntary.

Therefore, we can say are two reasons that make Plea Bargaining popular in the U.S:
The prosecutor works under a heavy workload and tight budget which makes them take a lot of cases at one go. This time-saving method of Plea Bargaining plays an effective role in clearing their caseload. We know that prosecutors being the central authority have the power to control the negotiation and the judges have very limited. As they are permitted to do so, the prosecutors can threaten the defendant with tougher charges throughout the trial to induce plea bargains.

The U.S. system of justice is more tilted towards a retributive form of Justice (a form of Justice that is committed to giving the offenders punishment that is equal to the crimes they committed) therefore the chances of going to trial in this system are high. For example, an offense of assault (first degree) under the Alabama Criminal Code provides for a maximum punishment of 20 years and a minimum punishment of 2 years plus a $30,000 fine. Moreover, the legal aid system was insufficient and private defense attorneys were very expensive. This imbalance of power makes the accused surrender to whatever deals the prosecutor put forward.

Therefore, we can say that this method gained its popularity in the U.S. criminal justice system not because it offers the best solution but rather because it benefits the people in positions of authority. 

Plea Bargaining In The U.K

In England and Wales, as opposed to many other jurisdictions, there are fewer opportunities for the prosecution to formally engage in conversations with the defense about potential pleas.  Because of concerns about the need to maintain judicial independence and make sure that no undue pressure was placed on a defendant to enter a guilty plea, the criminal justice system in England and Wales has historically been reluctant to allow any kind of formal plea-bargaining procedure.

At present, there is no formal system of plea bargaining in UK courts. It is more relevant in the USA than in the UK. The concept of Plea Bargaining is still in the process of developing in England but it gets strong opposition from the English Courts to be used as an alternative method for the disposal of criminal cases.

The Courts in England have been unwilling to accept that a plea of guilty can be anything other than a fully free and voluntary decision by the defendant, the researchers too shown little interest in guilty pleas. More specifically, the English legal system has historically been seen to be opposed to the concept of plea bargaining, because they believe that defendants are under pressure to enter a guilty plea.

There are a few features present in the American criminal process which gives incentives for people to negotiate plea agreements that are missing from the English system. Moreover, the English Court of Appeal has been against the development of plea-bargaining practices on many occasions. The amount of discretion the trial judges retain over sentencing is one of the main reasons plea-bargaining is not accepted in England and contrast to the U.S. most crimes in the U.K. do not have fixed sentences except for murder. Therefore, we can say that the sentencing policy in the U.K. is much more lenient.

From this, two consequences can be followed:
  1. Judges have a huge amount of discretion and the sentencing policy are flexible, there is no need or pressure to change the harshness of the law by using alternative methods.
  2. It is challenging for the prosecution to offer the prisoner any promise for lesser punishment because the trial judge has the final say in sentencing policy.
The role of the prosecutor is another significant area where England and the United States differ regarding Plea Bargaining. The Prosecutor has a lot of power in the U.S. He has the discretion whether to proceed with the prosecution or to opt for plea negotiation. He can reduce a charge and suggest a particular sentence to the Court. On the other hand, in England, criminal cases are conducted by barristers and not by the prosecution.

Barristers are the one who has the power to appear for both the prosecution and the defense. In contrast to American Prosecutors, British barristers do not have the authority to drop charges. In England, it is also regarded as unethical if the prosecution suggests any sentence to the court. In short, we can conclude that the use of plea-bargaining processes in criminal cases is limited by the English judge's supremacy in the trial system and his power over the prosecutorial and sentencing discretion.

Plea Bargaining In India

The adage "justice delayed is justice denied" has the utmost significance in our judicial system. But the shocking fact is the enormous number of cases that are pending in the courts throughout India which has been normalized and accepted by the common people as fate. We know that this concept has its inception in the American legal system, therefore we can say that it has been incorporated by our Indian legal scholars and jurists in Indian Criminal Law after taking into account the delay in dispensation of justice because of pending cases on the judiciary. It is based upon the principle of "Nolo Contendere" which stands for "I do not wish to contend".

However, there is a huge difference between the concept of Plea-Bargaining in both countries. According to the Indian concept of plea-bargaining, the accused person, who has committed a crime for which maximum punishment does not exceed 7 years, has the right to file an application for plea bargaining in the court and after receiving such application the court appoints public prosecutors. In the American concept, after negotiating with the accused the public prosecutor applies to the court.

The introduction of 'plea bargaining' as an alternative method to deal with huge pending criminal cases was recommended by the 154th Report of the Law Commission. This recommendation of the law commission was supported by the Malimath Committee on criminal justice reform of 2003.

To speed up the resolution of criminal cases and to relieve the judicial system from the plethora of pending cases Malimath Committee recommended that a system of Plea bargaining be established. To support its statement Malimath Committee cited the example of the concept in the US legal system. Thus, the Code of Criminal Procedure, 1973 has been amended by the Criminal law amendment act, 2005. Chapter XXI-A, consisting of 12 Sections (Sec 265-A to 265L) introduced the concept of Plea Bargaining in India.

The practice of Plea-bargaining is allowed but is very limited. It cannot apply to offenses that deal with the socio-economic condition of the country, offenses against women like rape, molestation, assault, sexual molestation, etc., and offenses against children below 14 years of age.

The applicant should be present at the court with a petition and affidavit declaring that it is his voluntary preference and is aware of the nature and extent of the punishment that will be provided by the law for that offense. The court would appoint a prosecutor and issue him and the victim a notice for a hearing. The judge will determine whether the application was voluntary by doing an in-camera hearing behind the closed door without the other party.

In order to reach a "satisfactory disposition of the case", the court shall set up a meeting among the prosecutor, investigating officer, and victim. The accused will be asked to compensate the victim by bearing all the costs and expenses. Once the agreement has been reached to the satisfaction of all parties, the Court shall formalize it by making a report signed by both parties and the presiding officer. Half of the minimum period which is set for that offense may be imposed on the accused as a jail term. In the absence of the minimum term, the sentence shall be at least one-fourth of the maximum punishment prescribed by the law.

Judicial Review Relating To Plea Bargaining

Like the scenario in England, the concept of Plea Bargaining did not get any recognition in India before 2005 even after the recommendation from the law commission of India. They initially adopted a very strict approach to deal with this policy. They were of the view that a crime is a crime irrespective of its gravity.

It is wrong against society at large and should be punishable by the state itself. Any type of compromise makes the justice system volatile which results in various complications. Therefore, the accused should not be barred from criminal liability. Following are the cases where the Supreme court uses the same approach.

Madan Lal Ram Chandra Daga vs State of Maharashtra:
Here Supreme Court held that the court should not enter into a bargain with the accused to compensate the victim. When a person commits an offense, he should be tried and punished according to his crime. If you do wrong u will be punished. But if leniency needs to be shown then the court may impose lighter punishment.

Murlidhar Meghraj Loya etc vs State of Maharashtra and Kesambhai Ardul Rehman Sheikh vs. State of Gujarat:
After examining the concept of Plea Bargaining, Supreme Court observed that it is against the public policy because "it pollutes the Purity of Justice" and to avoid a criminal trial, an innocent accused may be persuaded to plead guilty in exchange for a reduced punishment. The judge also may get distracted from his or her obligation to do justice. Therefore, this practice promotes corruption and collusion which may lead to the downfall of the justice system.

Ganeshmal Jasraj vs. Govt of Gujarat:
Here Supreme Court also commented that it violates Article 21 of the Indian Constitution which talks about the Right to life and personal Liberty. This same thing has been held by Supreme Court in Beshar Nath vs. Commissioner of Income Tax.

In the case of the State of Uttar Pradesh vs Chandrika, the SC held that Plea Bargaining is not the appropriate way to dispose of criminal cases. In India, Judges decide cases based on evidence produced before the court. "Mere Acceptance or admission of guilt should not be a ground for reduction of sentence nor can the accused bargain with the court."

Despite facing constant opposition from the Indian Judiciary, the Central Government accepted it after looking into the benefits it provides to the system. Now plea bargaining has become a crucial part of Indian Criminal Law. The victim of the crime and the prosecutor will be able to negotiate with the accused, it will not only speed up the disposal of the cases but may also give adequate compensation to the victim.

No court shall accept an appeal from that decision. Plea bargaining is said to be a device that helps victims to get hassle-free and speedy justice without the fear of the witnesses turning hostile. The victim also will not have to worry about the high expenses of an advocate.

 Like in the State of Gujarat vs. Narwar Harchanji, Supreme Court upheld the concept of Plea bargaining as it follows the objective of the law which is to provide easy, cheap, and fast dissolution of the cases so that the administration of justice is not held up or delayed.

The objective behind the introduction of this concept was:
  • To decrease the load of pending cases
  • To fasten up the process of disposal of cases
  • To introduce the provision of compensation to victims by accused
  • To reduce the no. of under-trial prisoners.
  • To provide easy and cheap resolution of disputes
Now that we have discussed the concept of Plea-bargaining in the context of 3 countries. We will do a comparative analysis among them.

Comparative Analysis
USA And India
Considering the above discussion, we can say that even though the concept has been borrowed by our Constitution makers from the US legal system, there are many differences between the concept of the two countries.

They are as follows:
Type of Offence
The course of Plea bargaining can be taken in any offense by the offender in the USA. No law prevents plea bargaining in some offenses in the United States. However, there are exceptions in India, as mentioned in Section 265A. the categories are as follows:
  • An offense is punishable by death or life imprisonment.
  • An offense is punishable with imprisonment of more than 7 years.
  • An offense against women
  • An offense against a child those are below 14 years of age
  • Offenses affect the socioeconomic condition of the country.

Victim's role during trails
In India, the victim plays an active role in the trial. If the negotiation does not reach a satisfactory disposition, the victim can use veto power. But the victim does not play any active role in the USA system of Plea bargaining.

Application Procedure 
In India, the Application procedure for Plea Bargaining does not even start unless the court ensures that filling has been done voluntarily by the accused. In the USA, it starts after the negotiation has been done between the accused and the prosecutor.

Role of Judges
In India, acceptance or rejection of the plea is at the discretion of the Judge. However, it is not the same in the USA, because power mainly lies in the hand of the prosecution.

As the power to grant the plea is vested in the judge, therefore if he thinks that the punishment given is not sufficient or it has been achieved by undue influence then he will set aside the plea. But in USA legal system such things do not happen.

USA and U.K
The United States is the only country where plea bargaining is successful as an alternative method of resolving criminal matters because of the high rate of conviction. Therefore, choosing this process is more beneficial for the accused as it promises him less serious charges with simple punishment. During the time of negotiation, only the prosecutor and the accused are present, not the victim, acting as a party. The Power resides with the prosecutor in the plea negotiation process. 

In the UK, the scenario is completely different as Plea bargaining is not even prevalent as it is in the USA. The reason is that the entire power vests on the trial judge from sentencing policy to prosecution. Moreover, punishments are not fixed for offenses in the UK and there is a huge difference in the role of prosecution. Plea-bargaining is limited only to England and Wales where it is allowed to plead only to those offenses as discussed by both panels.

The UK system excels because it maintains a balance between the speedy disposal of the case and the accused 's right to remain silent to accept his plea. As a result, the prosecution has no power to reduce the penalty in exchange for a guilty plea, leaving the prosecutor with little room for intervention and coercion. In India, the plea-bargaining law is codified in nature whereas it is not codified in England. Plea bargaining is not also not limited to a few offenses like in India.

The purpose of this research was to find out the meaning of the concept of Plea-bargaining in three different countries i.e., the USA, the UK, and INDIA. Based on the analysis I would like to conclude that the concept of Plea Bargaining is more of an advantage or a convenient method. It will not be right to say it is a moral, legal, or constitutional matter. As we are aware that our criminal justice system needs a drastic change.

In my opinion, Plea Bargaining will be welcome when it will provide the possibility of swift and affordable disposal of cases. But it will lose its whole value and importance if it is used only to give lesser sentences to the accused in name of a speedy trial and restore the criminal in society. But if a legal review or scrutiny is done of this process by the courts then the bargaining will be done on fair terms and there will not be any doubt in the mind of others.

Not only in India but also in the US the concept remains disputed. But after analyzing the concept it can be said that it is unfair to reject a method only because of its disadvantage. In my opinion, to obtain the maximum gain from this process of plea bargaining, the judiciary, police, and the bar should accept, and understand it properly before implementing it in society. It should be given a chance to survive. Instead of treating the concept as a threat to the profession, the attorney should encourage their clients to opt for this process. The concept of Plea Bargaining is regarded as one of the necessary steps for fastening the caseload resolution because the courts are getting overburdened due to too many cases.

 Despite the concept being adopted, our constitutional maker has fit it rightly into our legal system by limiting its scope and applicability by assuming the future hindrances that it might face. It is not too flexible nor too strict like in the UK. They made sure that it fit the objective of the Indian Judiciary system without hampering the process further which is speedy disposal of the cases. Therefore, in my opinion, we need to give it some time as it is still in its evolving stage and can only be perfect over time.


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