Plea Bargaining: A Look At What Was And What Should Be

The concept of Plea Bargaining which originated in the United States, today exists in most countries having robust crime prevention systems. It has been touted as an important mechanism to bring equilibrium between committing an offence and the subsequent punishment that offence demands. In addition to this, Plea bargaining also reduces the burden on courts significantly and this is a crucial aspect, considering in India, a trial takes almost 15 years to reach completion and Indian courts are overcrowded with under trial prisoners. This issue is further exacerbated by the fact that India's judges to population ratio is one of the lowest in the world (with 21 judges/million people). When the legislation was introduced in India in 2005 after several rounds of recommendations from different Law Commissions, the lawyers had hailed this amendment as a "progressive piece of legislation" which would ease the pressure on courts and lead to speedy disposal of cases. However, India has not taken complete advantage of this reformist section which finds its place in Chapter 21A of CrPC , 1973. Plea bargaining, inspired from the Latin maxim Nolo Contendere which means "I do not contend": an agreement between prosecution and defence that if the accused pleads guilty (instead of pleading not guilty) to the crime he is charged with, his sentence will be reduced. Origins The initial origins of plea bargaining are found in texts regarding Saint Joan of Arc being coerced into giving a confession to avoid death by fire in France in the year 1431. Although when she retracted this false confession she was forced to give, she was eventually executed at the stake. A full record of her trial is mentioned here and it is also apposite to mention that she was exonerated twenty-five years after her death on a deposition given by 116 people. Another early example can be found in the Salem Witch trials during 1692 when accused 'witches' were forced to confess to their 'alleged' crimes and testify against other witches, in return for the lighter punishment of being allowed to live. Pleading guilty did save some witches from execution but this was later used against plea bargaining as a strong argument stating that this practice could potentially coerce innocuous defendants to plead guilty. But the difference between the old practice and new era legislation is grounded in the fact that previously, confessions were elicited to make wrongful prosecution appear lawful while later, plea bargaining was just used as a medium to quickly dispose of cases relating to under trial prisoners and reduce the burden on justice systems simultaneously. Although scholars around the world attribute origins of the modern-day concept of plea bargaining to the United States, it is pertinent here that American Judges were initially very skeptical regarding the concept and instead persuaded the defendants to undergo trial, rather than bargain for their sentences. During the era of the American Civil war, judges even went to the length of reversing convictions that were based on such plea bargains. From the 1850s to the 1960s, plea bargains were considered unethical and immoral, even though according to one study, it was found that in some American States, 77-96% of defendants had pled guiltyand had bargained for lesser sentences. It was only in 1967 when a report by the President's Commissionon Law Enforcement and Administration of Justice came out with recommendations of recognizing this practice in consideration of the fact that though considered immoral, it was still highly prevalent. Fast forward to the 21st century, around 95% of cases in the UnitedStates are resolved via plea bargaining. To trace the American history of Plea bargaining further, a reference can be made to Boykin v. Alabama, Brady v. the United States, Carolina v. Alford, Santobello v. New York and Bordenkircher v. Hayes. Like in America, even in India, the system of Plea bargaining was not recognized and looked up to for the longest time as made clear by the judgments in Kasambhai Abdul Rehman Bhai Sheikhv. State of Gujarat in which it was held that "the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice"; State of UP v.Chandrika where the court held that, "Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty, the sentence should be reduced" and Madanlal Ramachander Daga v. State of Maharashtra, where the court remarked that, "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" The concept was only...

Plea Bargaining: A Look At What Was And What Should Be

Rashmi Bagri

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