Charge Bargaining: Comparative Study of laws in India, UK and USA

This article was written by Aditi Halder, a student of WBNUJS.

Introduction

Plea bargaining as a concept is a form of compromise entered into by the defendant with other concerned parties in a suit. Under that compromise the defendant agrees to plead guilty to the charges filed against him and in return the other party provides him some concession either by reducing his sentence or by applying lesser charges against him. However, the principle of plea bargaining requires that the transaction entered into by both the parties is voluntary and not involuntary.[1]Basically, there are two types of plea bargaining: (1) Charge Bargaining: Where the accused agrees to plead guilty and to a charge which is less serious in nature, among all the charges filed against him, and in return the serious charges against him are dropped.For example: If earlier the accused is charged for robbery, then under charge bargaining, he is charged only for theft. (2) Sentence bargaining: In sentence bargaining, the accused agrees to plead to guilty to all the charges filed against him, whether serious or not, and in return, the sentences which are to be imposed on him are reduced.[2]

The primary justification behind such a mechanism of disposing cases is that, Firstly, there is a huge backlog of cases in each court, and plea bargaining is the most convenient of reducing that backlog by ensuring speedy disposal of cases, as the accused himself agrees to plead guilty. Secondly, the prosecutors are also overburdened with cases, hence if less serious cases are disposed off, by plea bargaining, then they could efficiently work on the more serious cases. Thirdly, the defendant can save his time and money by not having to defend himself at trial.[3]

In most of the countries, primarily in USA, plea bargaining is the most common way of disposing cases. However, the mechanism is not equally effective in all the countries. India has only adopted the mechanism of sentence bargaining under plea bargaining. The concept of charge bargaining is missing in Indian jurisprudence.

The aim of this paper is to discuss the how charge bargaining happen in USA and UK. I will also analyse in this paper, that why charge bargaining is not accepted in India and why plea bargaining as a concept is not successful in India.

Charge bargaining in USA

Plea bargaining is very common in American jurisprudence and approximately ninety percent of the cases in America are disposed by plea bargaining.[4]

Plea bargaining was officially recognised as a formal mechanism for deciding criminal cases in Brady v. United States case.[5] The case held plea bargaining to be constitutional. Moreover, the bargaining is considered as a significant part of American justice system by American Bar Association standards on criminal justice as well.[6]

In Peter Westen and David Westin[7]it was observed by the U.S supreme court that the persecutor and the defendant must adhere to the terms of the plea bargaining to make it legally valid. And, a plea bargaining will be legally binding only if it is approved by a judge. Moreover, in the light of this case it can be concluded that if the terms of the plea bargaining are not complied with, by one party, then the aggrieved party will be entitled to remedies.[8]

It was found that in 1989 the number of cases which were disposed without a trial was almost eighty-six percent. The similar trend was observed in the state cases; it was found in 1988 that almost ninety- one percent cases were disposed by way of guilty pleas in seventy-five countries of USA. What is interesting is that, in most of the cases the defendant plead guilty because of plea bargaining. Although it was argued that the plea bargaining can be considered synonymous to guilty pleas, however, in most of the cases guilty plea was obtained through plea bargaining.[9]Also, among, plea bargaining, charge bargaining is the most acceptable way.[10]  Hence, if we analyse this position in context of the aforementioned statement, it can be said that most of cases in USA are disposed by charge bargaining. In USA, Charge bargaining takes place in three forms: (1) The defendant may agree to plead to guilty to certain charge or charges in exchange of prosecutor, dropping other charges against him: (2) The defendant agrees to plead guilty to certain charge or charges if the prosecutor promises to not to file anymore charges (3) The defendant can agree to plead guilty for serious offences if the prosecutor promises either to drop other serious charges or not to file any more charges.Therefore, in a situation of normal plea bargaining, the agreement is initiated by the prosecutor, it is the prosecutor who offers to either reduce the statement or the charges filed against the defendant.[11]Hence, in US, the parties who are involved in the process of plea negotiation are only the prosecutor and the defendant. The prosecutor plays a major role in the negotiation process. In USA, the plea bargaining takes place outside the court, in other words plea bargaining is a kind of out of court settlement.

Charge Bargaining in U.K

Plea bargaining including charge bargaining is not prevalent in UK as much USA. Plea bargaining as a concept is still developing in England.  That is because the factors which act as incentive for the parties to enter into plea negotiation in America are not present in U.K. Moreover, the English Courts have strongly opposed the use of plea negotiation as an alternative method for disposal of criminal cases, in many cases.[12] One of the primary reason for non-acceptance of plea bargaining in England is due to the amount of discretion the trial judges retain over sentencing.  Unlike U.S most of the offences in U.K (except murder) do not have fixed sentences. Therefore, the sentencing policy in U.K is much more flexible than its American Counterpart.Such a system of Sentencing has two major consequences: (1) Since the sentencing policy is flexible and the judges have enormous amount of discretion therefore the pressure to reduce the harshness of the law by using alternative methods is much lesser. (2)Since it’s the trial judge who has the ultimate discretion of sentencing, therefore it is difficult for the prosecution to make any promise to the defendant regarding concession of sentence.[13]

Another reason why there is difference between America and England regarding plea bargaining is due to difference in role of prosecutors.In United states it the prosecutor who is the master of plea bargaining agreement. It is the prosecutor’s decision whether to proceed with the option of plea negotiation, and it is him who decide whether to offer charge bargaining or sentence bargaining to the defendant.  However, on the other hand, in England, professional prosecutors generally do not conduct criminal prosecution. It is the barrister who conducts the prosecution in criminal cases, he can appear for both the prosecution and the defence.[14] Unlike prosecutors in America, the barristers in U.K do not have unsupervised power to drop charges. Moreover, is it considered unethical in England if the prosecution gives any recommendation for sentencing. Hence, the use of plea negotiation in England as an informal way of disposing cases is limited because of the availability of the power to the trial judge to use his discretion over the trial, as well as the sentencing and prosecution.

Position of Charge Bargaining in India

The Code of Criminal Procedure provides for plea bargaining under Chapter 21 A of the Code[15]. Under, chapter 21 A, Section 265 A[16] to Section 265 L[17] deal with plea bargaining. The concept of plea bargaining in Indian jurisprudence have been borrowed from USA. However, Code of Civil procedure only talks about sentence bargaining, and does not mention about charge bargaining anywhere.Hence, unlike USA and UK, India does not have the concept of plea bargaining. Also, the number of parties involved in the negotiation process differs. In India, not only the prosecutor and the accused are involved in the process, in fact, the court, the defence lawyer, the aggrieved party and the investigation officer are also involved in the process.

However, plea bargaining as an overall concept is not successful in India. That is because, the amount of conviction in India is very low, unlike USA and UK where the accused is convicted in almost ninety percent of the cases.In India acquittal takes place in most of the cases. Hence, there is more loss than gain for a defendant if he enters into plea bargaining. Since, there is lesser number of conviction in India, hence pleading guilty in return of a lesser sentence or pleading to any lesser charge will detrimental for the accused.

In my opinion, plea bargaining (including charge bargaining) is very crucial for the effective functioning of the Indian justice system, that is because, in our legal system, along with huge backlog of cases and lesser number of acquittals, there is delay in the disposal of criminal trials and appeals and unavailability of relevant statistical data regarding under trial prisoners.[18]

However, I think that the success of plea bargaining can be ensured by incorporating charge bargaining in Code of Civil Procedure.That is because, the absence of charge bargaining acts as a detriment for the defendants. As discussed earlier, entering into sentence negotiation is risky for the defendant, given the high number of acquittals in India. However, if charge bargaining could be incorporated in Cr.P.C, then the scenario could change. That is because, charge bargaining is more acceptable for the defendant than sentence bargaining. There are several reasons behind that. Firstly, because pleading guilty to a lesser charge can subject the defendant to a lesser sentence rather than a sentence bargaining itself. For example: if defendant (A) is charged for both theft and trespass and he agrees to plead guilty to a charge of trespass, if the charge of theft against him is dropped, then he will only be punished for trespass.  However, if the defendant agrees to plead guilty for both charges, it might happen that the sentence which is reduced is still more than the sentence had he been only charged for trespass. Secondly, in many cases it happens that the prosecutor has charged the defendant for a more serious offence, than the actual offence committed by him. In that situation, pleading guilty to the offences which the defendant has not committed in the first place and then going for a sentence negotiation is always detrimental for the defendant. For example: If the defendant has only committed assault, but the prosecution has charged him for grievous hurt as well, then it is definitely detrimental for the defendant for the defendant to plead guilty to the charges which he has not committed.

Conclusion

In the light of the above discussion it can be concluded that Charge bargaining as an informal mechanism to dispose criminal cases is only successful in USA. The reason behind such success is the high rate of conviction in USA. Hence, entering into a plea negotiation is more preferable for any accused, since it can ensure him lesser sentence, or less serious charges. Also, the concerned parties in such negotiation are only the prosecutor and the defendant. However, it is the prosecutor who has the dominance in the plea negotiation. Unlike USA, plea negotiation is not preferred in U.K, that is because, the trial judge has enormous amount of discretion over the trial system, prosecution and sentencing policy. Moreover, unlike USA, sentences for offences are not fixed in U.K. Also, there is a major difference in role of prosecutor.

However, in India, the situation is completely different. Indian jurisprudence does not even have the concept of charge bargaining. In India we only have sentence bargaining. However, the plea bargaining as a concept is not successful in India because here, the number of conviction is much more lesser than the number of acquittals. However, I think that incorporation of charge bargaining can help the mechanism succeed to some extent.

[1]Plea and charge bargaining, Bureau of Justice Assistance U.S department of Justice, available at, https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf, last seen on 24/03/2018.

[2]Law Commission of India, concessional treatment of offenders who on their own initiative choose to plead guilty without any bargaining Report No.142, (1991).

[3]Plea Bargains: In Depth, Find Law, available at, http://criminal.findlaw.com/criminal-procedure/plea-bargains-in-depth.html, Last seen on, 35/03/2018.

[4]Supra, note 1.

[5]Brady v. United States, 397 U.S. 742 (1970)

[6]American Bar Association, Standards relating to the administration of criminal justice, The prosecution function Standard 3-4.1 (3ed 1992).

[7] Peter Westen and David Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 1978 CALIF L.R. 66, May, 3, 471.

[8] Emilio C. Viano, Plea bargaining in United States: A perversion of Justice, available at, https://www.cairn.info/revue-internationale-de-droit-penal-2012-1-page-109.htm#re7no7, Last seen on 25/03/2018.

[9] Peet M Bekker, Plea bargaining in the United States of America and South Africa, 29 (2), 168, 222, The Comparative and International Law Journal of Southern Africa (1996).

[10] Supra, note 3.

[11]Supra, note 9.

[12] Atkinson, [1978] 2 All E.R. 460, 462.

[13]John Baldwin and Michael McConville, Plea Bargaining and Plea Negotiation in England, 13 (2), 287, 307, Law & Society Review, (1979), available at, http://www.jstor.org/stable/3053255, Last seen on 24/03/2018.

[14] John L. Heberling, Conviction Without Trial, Anglo American Law review (1973).

[15] The Code of Criminal Procedure, 1973, Chapter 21A.

[16] The Code of Criminal Procedure, 1973, §265 A.

[17] The Code of Criminal Procedure, 1973, §265 L.

[18]Law Commission of India, concessional treatment of offenders who on their own initiative choose to plead guilty without any bargaining Report No.142, (1991).