Plea bargains in the American court.

[IAN 2411]

I was reading the posts next door about extradition and I think it is going off line a little, but there is a question to be answered. Plea bargains, and the right for them to be offered to the guilty.

If a judge gives a light sentence because a felon has admitted guilt or he is swayed by the prosecution, then surely he is breaking the law himself by doing so. The judge is there to see that the guilty is punished for his crime by the letter of the laws given him. He is also there to see that the victim has satisfaction of seeing the felon get his fair and just sentence for that crime on his person/property etc.

If a plea bargain has been arranged then what is the point of going to court in the first place. The judge is defrauding the office he holds and the people that placed him there.

If the prosecution leaves out evidence or do not carry out their task of prosecuting the man fully. Then surely they too are guilty of fraudulent behaviour and bending the law to suit them-selves. If the lawyers for the prosecution do this once then surely they can never really be trusted to carry out their work with fairness and conviction. There laws and sentence’s are there as a bench mark, and if the judge or the prosecution lawyer brush it aside for their own purpose then the case is not legal or just.

The UK stopped giving lenient sentences for guilty pleas because of the victims saying, they do the crime so they should do the time. We have over here stopped the automatic right to early release, it has to be earned and even then it is not guaranteed.

Be well IAN 2411

[Thorne]

I think there could be several good reasons for plea bargaining. I'm not a lawyer, so I could be off on some of the finer legal issues, but the bargain is usually made between the prosecutor and the defense. It could be that, for some reason, they have enough evidence to convict on the lesser crime, but taking the larger crime in front of a jury might be risky. For both sides. Or perhaps the criminal is willing to testify to an even greater crime committed by someone else, and the prosecutor feels it's more important to, for example, get a murderer off the street than a thief.

The reason for going to court is because the prosecutor cannot issue a sentence. Only the judge can do that. And he may be restricted, by statute or precedent, on how great a sentence he can give. And if the prosecutor claims that the defendant is cooperating in a capital case, the judge might take that into account. It's a complicated process, to be sure.

Another possible reason for plea bargaining is expense. Trials cost a lot of money, paid by taxpayers. If you can accept a guilty plea for a relatively small crime imposing, say, a three year sentence, why go to the cost of a trial for a somewhat bigger crime which may only incur a four or five year sentence?

Part of the problem, as I understand it, is that the system is overloaded, with too many criminals and not enough prosecutors and judges. And part of the reason for that is the criminalization of relatively harmless activities, such as marijuana possession. Plea bargaining is one way of easing that overloading.

[StrictMasterD]

In a Lot of Situation, at least in the UnitedStates one reason for Plea Bargains are most, not all but most Jail & State Prisons ar SOOO over crowed they PLea bargain the lmits thier time behind Bars
Look at Conrad Murray, he got 4 years for the "Involunatery" death of Michael Jackson, as as soon as the sentence was passed, before he even left the court room EVERY Memembero f the Media and even those in Charge of the California Peenal system said "He wil serve very limitedtime, we have a MAJOR or crowding situation State wide and need to leave frooom for the most Violent Offenders etc
Nation Wide most Prisones are over crowned I firmly believe because of this those who are convicted of Some Crimes simply serva limited ammount of time
Also keep in mind in California the Charges that Murray was Convited of only carry a MAX Sentence of 4 years, the Judge wanted a stiffer sentence ubt he even admitted he is bound by the Laws of the State as well as the over crowding if their Penal Sysem
That is why unless the Case is Horrific in Nautre, PLea Bargain wil always be offerd, plus those covicted gnenera lwork under soneone elses order, the JUsge wants THAT person not the Messenger so to speak

[thir]

The UK stopped giving lenient sentences for guilty pleas because of the victims saying, they do the crime so they should do the time. We have over here stopped the automatic right to early release, it has to be earned and even then it is not guaranteed.

Be well IAN 2411

Hmm.. I seem to remember a discussion here in UK about giving more lenient sentences in rape cases in case of guilty pleas, because, if I understood it correctly, they are so hard to prove, and to save the victims having to appear in court.

But I cannot remember what it ended up with.

[IAN 2411]

Hmm.. I seem to remember a discussion here in UK about giving more lenient sentences in rape cases in case of guilty pleas, because, if I understood it correctly, they are so hard to prove, and to save the victims having to appear in court.

But I cannot remember what it ended up with.

Yes you are correct, but if i remember correct it was because of the public outcry it was all left in limbo.

Be well IAN 2411

[js207]

If a judge gives a light sentence because a felon has admitted guilt or he is swayed by the prosecution, then surely he is breaking the law himself by doing so.
...
The UK stopped giving lenient sentences for guilty pleas because of the victims saying, they do the crime so they should do the time.

On the contrary - he would be breaking the law (in England and Wales, the Criminal Justice Act 2003, section 144, "Reduction in sentences for guilty pleas", derived from a 1994 act which in turn codified existing common law on sentencing) if he failed to do so. I certainly agree sentencing tends to be much too lenient these days, but Parliament doesn't seem willing to address this just yet. I'm not convinced that removing the reduction in sentence for an early guilty plea would be a good idea, either: remove that, every defendant on legal aid has nothing to lose by taking the chance and dragging proceedings out as long as they like.

Personally, I'd require that any conviction result in the maximum sentence except in extenuating circumstances, then allow the judge to make some or even all of that a suspended sentence. A first offender would still get out quite soon, or even escape jail entirely - but re-offend, they automatically get time behind bars for that on top of whatever the second offence merits. Parts of the US have "three strikes" laws which mandate a life sentence for the third felony conviction (sometimes misrepresented in cases like the "pizza theft", where a violent career criminal got a 25-life sentence for robbing some children at a pizza restaurant as the last in a long string of crimes - and upon his release after the sentence was reduced, has made a serious and so far successful effort to stay inside the law this time), which has some appeal to me, but the suspended sentence route is simpler and avoids complaints of disproportional sentences.

If the prosecution leaves out evidence or do not carry out their task of prosecuting the man fully. Then surely they too are guilty of fraudulent behaviour and bending the law to suit them-selves. If the lawyers for the prosecution do this once then surely they can never really be trusted to carry out their work with fairness and conviction. There laws and sentence’s are there as a bench mark, and if the judge or the prosecution lawyer brush it aside for their own purpose then the case is not legal or just.

No: the prosecution is not obliged to prosecute an offence at all, let alone to the best of their ability: they are expected to exercise judgement about allocation of resources. Just as the police don't need to stop you for doing 71 in a 70 limit, or call out a forensics team to collect fingerprints and DNA swaps at the scene of a shoplifting, the CPS don't need to bring the most serious charges they could justify, or any charges at all. Given finite resources and an almost open-ended task of prosecuting crimes, how else could they function?

More than that, there are cases where technically an offence was committed, but prosecuting it isn't in the public interest. I recall the recent case of an ambulance driver caught speeding, in an ambulance with the lights going, while transporting an organ for transplant. Since he was transporting an organ rather than answering a 999 call, technically that was illegal - it could even have been prosecuted as dangerous driving - should the CPS really have been required to prosecute that as harshly as possible? For that matter, remember that consensual BDSM is technically an offence under English law: I don't think many of us on this site would like to see that prosecuted to the maximum extent possible!

[MMI]

Prosecute me ... pleeeeease!!!

HARDER!!!!

[MMI]

I think it is quite possible in most instances to distinguish between crimes that need to be prosecuted and acts which break the law for a greater good.

Then there are the cases where it would be too much trouble to prosecute ... people driving at 71 mph on the motorway, perhaps, or parking too close to traffic lights (a constable once advised me, if I proposed to continue to wait for my wife late one night, to move my car forward so that I would be park on double yellow lines within 10 metres of a traffic-light controlled junction , because, he said, I was too close to a place where the kerb had been lowered for wheelchairs and mobility scooters, and, if he had seen that I had actually prevented a handicapped person from crossing the road at that point he would have booked me; however, parking too close to a junction or on yellow lines was an offence that the police do not normally prosecute, but leave to local traffic wardens instead, and traffic wardens are not out issuing tickets at midnight! In other words, parking offences are too much trouble and the police don't normally bother with them.

In another post, js207 listed a number of assault-related offences that he suggested were virtually interchangeable, assault, battery, etc. There is, in fact, a real distinction between each of the offences described, and it would be very wrong for the police or the prosecution service to charge someone who had committed an assault with a deadly weapon with simple assault for any reason, because that would defeat justice - even if it was thought to be expedient for other reasons, such as the difficulty of proving the greater charge. Justice is not something that should be approximated, it should be clear, fair and measured. And consistent. Consistency is hard to maintain if there are plea bargains being offered left, right and centre.

Officially, we don't allow plea bargains in the UK. We regard such things with great suspicion. However, we do sometimes allow the accused to "turn Queen's evidence". In other words, the accused is promised he will not be prosecuted ... in fact, if Garrow's Law is to be believed, his admitted crimes are completely wiped away ... in return for testifying against others. I think it is accepted that justice is not served in the case of the person who gives evidence against his fellows, but that justice would not be served in the case of the others without that evidence. ... For the greater good, I suppose.

I am equivocal about using this tactic in the courts, but my inclination is against it, as it clearly belongs to the dirty-tricks side of law enforcement.

Justice at any price. Is that justice?



PS: Is it just me, or does anyone else find that if they use the Quick Reply window for their post, but then try to "Go Advanced", their message disappears? Happened to me a few times - like just now.

[js207]

I didn't say the permutations of assault were interchangeable, but that they are a spectrum of charges for similar offences - attempted murder and assault with a deadly weapon, for example, are quite similar, but the former charge requires proving intent to kill. I can't find the actual Framework for Plea Negotiation document right now, but to quote a QC "Prosecutors have always had the power to accept pleas to a lesser offence or offences charged if they consider that it is in the public interest to do so." Yes, if the fiscal (or English equivalent) believes they can evidence the necessary elements for the more serious charge, they will try to secure a conviction on it.

In fact, in a sense we come full circle here: in researching that, I came across the House of Lords Judicial Committee (McKinnon v. Government of the United States 2008 UKHL 59) - the case which triggered this family of threads in the first place:

"It is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors, and more still (usually one-half to two-thirds but exceptionally three-quarters or even beyond that) in the particular circumstances provided for by sections 71 – 75 of the Serious Organised Crime and Police Act 2005 – see R v P; R v Blackburn [2007] EWCA Crim 2290. No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant’s timely guilty plea. Indeed the entire premise of the principle established in Goodyear [2005] 1 WLR 2532 is that the parties will have reached an agreed basis of plea in private before the judge is approached. What, it must be appreciated, Goodyear forbids are judicial, not prosecutorial, indications of sentence. Indeed, Goodyear goes further than would be permitted in the United States by allowing the judge in certain circumstances to indicate what sentence he would pass." (My emphasis, quoting then-Lord Brown sitting as a Lord of Appeal in Ordinary, prior to becoming one of the first Justices of the Supreme Court in 2009.)

Officially, we don't allow plea bargains in the UK. We regard such things with great suspicion.

On the contrary, it is officially recognised by the highest courts in the land as "accepted practice", as I quote above. I know it's a common belief that plea bargaining is not done here, but the belief is misplaced. As you note, there are indeed provisions for those assisting the authorities as well - it may be distasteful, but when dealing with drug gangs and terrorist groups, you either need to accept dealing with unsavoury characters, or give up on enforcing the law against such groups entirely - and of course our system as a whole adopted the former approach long ago.

[denuseri]

"It is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests.

Which really shouldn't be surprising considering where the majority of we former colonists originally came from.

We could have done something completely different, yet we adhered to the familiar.

[js207]

Which really shouldn't be surprising considering where the majority of we former colonists originally came from.

We could have done something completely different, yet we adhered to the familiar.

I'm not sure plea bargaining is something that was inherited in that way, although of course many of the founding principles were retained - indeed, one of the founding objections in the Declaration of Independence was that the King was infringing the traditional legal protections afforded by the English legal system - a pattern which continues to this day, with governments here starting to infringe protection against double jeopardy which the US still holds to.

There are other systems out there - but I would say the choice made by Australia, Canada, the US and others to retain much of the English approach is a good one, particularly when I compare it to the others I have learned about. When followed, it's a good and robust system, the product of centuries of experience and refinement. Other aspects of the government are much less palatable of course: the lack of separation of legislative and executive functions in particular, and much less democracy and accountability than I see in most US states, but the actual legal system is a good one.

[MMI]

On the contrary ...

I bow to m'learned friend's superior knowledge.

[StrictMasterD]

Thhou our Judical System in the United States does work, it is probably more screwed up then anywhere on Earth

[IAN 2411]

Thhou our Judical System in the United States does work, it is probably more screwed up then anywhere on Earth

You haven't been to the UK lately then, an experience you should savour, you couldn't make some of it up.

[Thorne]

You haven't been to the UK lately then, an experience you should savour, you couldn't make some of it up.

I imagine the same could be said of just about any country's legal system, as those who make the law twist it into unrecognizable contortions in order to make sure that whatever bizarre activities they are involved in won't be considered illegal. Or at worst, punishable by a slap on the wrist.

[js207]

Thhou our Judical System in the United States does work, it is probably more screwed up then anywhere on Earth

Really? More so than the ones where rape isn't a crime, or where it's the victim they punish? More so than the one that just scrapped the 800-year old double jeopardy protection? One where you weren't allowed access to a lawyer while being questioned by the police? Israel, India, Singapore, South Africa and parts of Switzerland, where there are no juries?

I'm guessing none of those would count as less screwed up - so where is "anywhere on Earth" that does?

[IAN 2411]

Really? More so than the ones where rape isn't a crime, or where it's the victim they punish? More so than the one that just scrapped the 800-year old double jeopardy protection? One where you weren't allowed access to a lawyer while being questioned by the police? Israel, India, Singapore, South Africa and parts of Switzerland, where there are no juries?

I'm guessing none of those would count as less screwed up - so where is "anywhere on Earth" that does?

I take it that you mean the UK when you say the Double jeopardy protection..well there is the fact that as tecnoledgy advances more and more people are being found out to be the real killers..that law is only good for the guilty. If a killer of three people has got away with murder by being found not guilty, and new tech proves he really was the killer ...he should be tried again on further charges...if it were your family members with the murdered we would not be having this conversation.

Be well Ian

[IAN 2411]

Something further to my last post that you might like to remember js207, it is not a persons right in the UK or for that matter anywhere in the world to get away with murder.

Be well IAN 2411

[js207]

Yes, I was referring to the UK's removal of that protection. Of course I'd feel differently if a relative had been murdered - it's why justice requires impartial arbiters.

The thing is, though, our justice system is supposed to err on the side of the suspect: innocent until proven guilty. "Better to let a dozen guilty men go free than to jail one innocent man": an exaggeration perhaps, but a long-standing core principle and one I support. The accused should face a fair trial - rather than evade it through flight or endless delaying tactics - and if that trial ends in acquittal, that should stand absent truly exceptional circumstances such as jury tampering.

On a related note, then: as noted earlier in this thread, one of McKinnon's grounds for objecting to extradition to the US was the (false) claim that their plea-bargaining is something not allowed here, meaning he would have less procedural protection there than in the UK. How would you feel seeing a UK extradition request denied because the UK now genuinely lacks a procedural safeguard other countries still hold dear?

It has happened in the past that the police have been convinced of someone's guilt ... gone to court ... been angry about losing - then years later, the actual culprit is found. It has sometimes even happened that they convinced a jury and jailed someone - then years later, they find someone else did it, so an innocent man was jailed or worse. Allow the police a second or third bite of the cherry if the jury aren't convinced the first time, you compound the risk of such a miscarriage. For eight centuries, once a court sets you free, that has been the end of it. Also remember it's a principle of justice that the prosecution has to let the defence see all their evidence in order to prepare a proper defence. They go against a suspect with enormous advantages: an entire police force, labs full of specialists, full-time lawyers who do nothing but prosecute cases every day - so, to level the field and stop them grinding a target down in a war of attrition, they have got to 'show their cards', and they get one shot at convincing the jury.

The US sets the bar higher for overturning an acquittal, as I understand it: you can be tried again if you had somehow corrupted the first trial sufficiently to negate it: jury, judge or witness tampering for example. Apart from that sort of scenario, giving the prosecution one chance to make their case makes sure they do a thorough and honest job.

The Lawrence story is an interesting one in this respect. The Crown Prosecution Service concluded there was not enough evidence (at the time) to convict - but the Lawrence family insisted on going ahead anyway. Since there was indeed insufficient evidence, the prosecution failed: the court found them not guilty and set them free. If the victim's family had listened to the prosecution experts, there wouldn't have been any issue: once there was real evidence, they could just have prosecuted properly, once, as it should be. Perhaps the real failing of the system was not that the first prosecution's result bound the prosecution's hands, but that the family were allowed to try to prosecute it themselves and fail?

[MMI]

I'm with js207 when it comes to removing the double jeopardy rule (is that just for murder, or for other crimes too?). Ian's protest that the protection was only good for the guilty did resonate with me, however. If a guilty man is found not guilty for any reason, and then, somehow, his guilt is revealed, should he not be punished as he would have been had a guilty verdict been given? Of course he should ... stands to reason.

But as js207 points out, our police (and any other police force) is quite capable of jumping to wrong conclusions and pursuing a person they conclude is guilty as far as the courtroom, to the jailhouse, and, in some places, to the gallows too. Then a miscarriage of justice is revealed, and the police say "sorry ... our mistake." Small consolation for James Hanratty or George Kelly, don't you think?

But is it good enough to have to let a man suspected of a murder walk free because the evidence to convict him doesn't exist? "Better than the alternative" is about all I can say. You can take your chances now and prosecute on whatever evidence there is and risk a Not Guilty verdict, or bide your time in the (sometimes) forlorn hope that the evidence will be revealed in the future.

It seems to me that public outrage (never a good counsellor) caused the double jeopardy rule to be relaxed in Britain (England?) and that British justice is now less fair than it was: the innocent must now live in fear of another knock on the door ...

In Scotland (uniquely, I believe) there is a third possible verdict: Not Proven. I understand that if a jury is not satisfied as to a man's innocence, but feel that his guilt has not been demonstrated sufficiently, they will return this verdict, and the accused will be released but is liable to be tried again if the prosecution can come up with new evidence. How many times can this verdict be passed before the suspect is exonerated? Does this third verdict enable the double jeopardy rule to operate more or less effectively: does it mean that if you are not guilty your innocence cannot later be challenged, or does it mean, if you receive a not proven you will be pursued by the authorities right up to the very last?

Anyone care to opine?

[js207]

Not Proven is indeed almost unique to Scotland - though it has occasionally been returned in Canada in the past, and was the verdict voted for by one Senator in Clinton's perjury trial, though his verdict was formally recorded as one of not guilty anyway. It doesn't get around double jeopardy, however: it is an acquittal verdict, legally equivalent to not guilty. (Originally, Scots juries were instructed to return verdicts of either proven or not proven; proven was replaced with guilty, but not guilty was added as a third verdict rather than replacing not proven.)

[MMI]

Not Proven "is equivalent to Not Guilty." Does that mean you do not face the possibility of another trial if the verdict is Not Proven?

[js207]

Not Proven "is equivalent to Not Guilty." Does that mean you do not face the possibility of another trial if the verdict is Not Proven?

That's right - or was until the removal of double jeopardy, at least: the minute the jury returned a verdict other than "guilty", you would walk out a free man, permanently safe from prosecution for that crime, however the jury worded it.