PLEA BARGAINING: ESCAPE OF THE GUILTY, OR TYRANNY OF GOOD INTENTIONS?

By D. Ron Singh

INTRODUCTION
I note with great interest, the introduction of the plea bargaining into the Guyana judicial system through the landmark criminal case involving Dayan Kawal. It is indeed a historic moment not only for the judicial system, but also for murder accused Daywan Kawal, the first defendant to sign a plea bargaining agreement which would give him a lighter sentence in return for testifying against a co-accused. It also entered defense attorney, Peter Hugh and Director of Public Prosecutions, Shalimar Ali-Hack into the history books. The Criminal Procedure (Plea Bargaining and Plea Agreement) Act 2008 was passed in the National Assembly on October 16, 2008. But while we applaud the initiative let us not rush to hasty conclusions on its potential effectiveness. While plea bargaining has merits in certain situations, it also has a downside. In fact, many legal analysts and commentators in the United States opined that it is a strong influence on the miscarriage of justice. I trust, that by the time you finished reading the rest of this article, you would be in a better position to evaluate the viability and potency of this transplanted initiative which we are so eager to implement in the Caribbean.

THE PROMISE OF PLEA BARGAINING
In the United States, the majority of criminal cases, in both, state and federal courts are resolved through plea bargains (also referred to as plea agreements). Plea bargains can be an effective means to dispose of cases and make efficient use of judicial resources, and are an integral part of the criminal justice system. In fulfillment of that goal, plea bargain is a means to an end. However, plea bargaining rests on the constitutional fiction that the government would not retaliate against individuals who choose to exercise their right to trial by jury. It should be noted though, that the issue of non-retaliation was sidestepped in the landmark 1978 precedent for plea bargaining, where the U.S. Supreme Court 5–4 ruling in Bordenkircher v. Hayes upheld the sentence of life imprisonment. The Court declined to overturn Hayes’s sentence because he had turned down a plea bargain, i.e., he had refused to admit his guilt and accept a prison term of five years, which would have avoided the risk of life imprisonment at trial.

In a plea bargain, a defendant agrees to enter a guilty plea to one or more charges rather than go to trial. In exchange for the guilty plea, the prosecutor agrees to dismiss one or more charges against the defendant, reduce the charge(s) to a lesser offense, and/or make recommendations to the judge regarding sentencing. It should be noted however, that the particular structure of a plea agreement will vary from case to case. Furthermore, while plea agreements are similar to civil contracts, they are not as binding on the parties. A defendant can withdraw a plea agreement any time before he has actually entered a guilty plea, and even after entering a plea there are circumstances in which a defendant can request that the plea be set aside. Prosecutors too, can withdraw plea agreements under certain circumstances. The prosecutor can revoke a plea offer before the defendant enters a plea, unless the defendant has detrimentally relied on the plea offer prior to its withdrawal or unless the trial court orders enforcement of the plea agreement under principles of contract law. However, although the prosecutor and the defendant may have reached a plea agreement to resolve the case, they still must obtain the approval of the trial court before the agreement becomes the actual disposition of the case. Further, a trial court is not bound by the terms of the agreement made between the prosecutor and the defendant. Notwithstanding, the enforcement of plea bargains must be consistent with the constitutional principles of due process, and any ambiguities in a plea agreement must be construed in favor of the defendant.

PROS AND CONS OF PLEA BARGAINING
There is hardly any system that is error free. However, one would expect the benefits of a system/initiative to greatly out-weigh the disadvantages. Let us now examine plea bargaining. A major downside to many criminal cases being settled by plea bargain is that justice, the hallmark responsibility of the judicial system, through the courts, may be sidestepped in favor of expediency. Since the defendant willingly pleads guilty to a crime lesser than the one for which he has been accused, no trial would occur and the defendant would be convicted of a crime after entering a plea of no contest or guilty. When there is strong evidence that a crime was committed, the defendant may be happy and willing to admit to a less serious crime. On the other hand, the innocent defendant would accept guilt for a crime he did not commit, and thus, would be harnessed with a criminal record, probably pay fines or put on probation regardless of innocence.

The defense attorney benefits by reducing the charges against his client, and avoiding the expense of a trial. On the negative side, he doesn’t get to prove the innocence of his client, and may even try to convince his innocent client to plead guilty.

The Prosecutors aim to convict people charged with crimes, and in many instances, for personal triumph rather than justice, but huge caseloads make it difficult to fully prosecute every accused in trials. Plea bargain delivers a conviction, even though it may not be the strongest conviction possible. The general consensus is that prosecutors prioritize cases, trying the exceptionally horrific ones, but are willing to negotiate the less serious crimes. However, many critics and comentators believe that this may no longer be true in the U.S.

CONSTITUTIONAL ISSUES & PLEA BARGAINING
I believe it would not be far fetched to successfully argue that while plea agreements may speed up caseload of judges, prosecutors, and defense lawyers, they may do so in an unconstitutional way. This begs the question therefore, as to whether it is proper for a government that is constitutionally required to respect the right to trial by jury to use its powers to pressure an individual to waive that right? As Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, puts it, “The prosecutor typically agrees to a reduced prison sentence in return for the defendant’s waiver of his constitutional right against self-incrimination and his right to trial.”

Lynch further argues that “a close inspection will show that the constitutional rationale underlying plea bargaining cannot withstand scrutiny. … the existence of some element of choice has never been thought to justify otherwise wrongful conduct.”

Supporting his claim, Lynch cited the opinion of Chief Judge William G. Young of the Federal District Court in Massachusetts on the modern criminal justice system:

         Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by  
         jury is today stark, brutal, and incontrovertible.… Today, under the Sentencing Guidelines regime 
         with its vast shift of power to the Executive, that disparity has widened to an incredible 500 percent.
         As a practical matter this means, as between two similarly situated defendants, that if the one who
         pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises
         his right to trial by jury and is convicted will be 20 years. Not surprisingly, such a disparity imposes an
         extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers.

Furthermore, the victims also have rights. To that end, they are entitled to justice/fair trial, or put differently, their day in court. From the victim’s perspective, being heard throughout the criminal justice process is very important, not only for the healing, but also for justice. It should be noted that prosecutors represent the state, and they're charged with seeking justice, not convictions. Plea agreements thus, erode justice. While I have not seen the much hyped "Rape in a Small Town," a film which apparently throws light on plea bargaining, many viewers believe it represents an excellent example of the damage that can be done when victims are denied the opportunity to tell their stories.

ISSUES OF ETHICS AND JUSTICE
Plea bargaining also raises ethical and justice issues. In a column in The Gleaner of April 21, 2009, Dr Canute Thompson, assistant vice-president at the International University of the Caribbean, highlighted several issues of ethics and justice pertaining to the practice of plea-bargaining. He questions the process, arguing that charges against an accused are a matter of public information, while the bargaining is essentially a private process. He further contends that, the more fundamental question is whether there should be any bargain at all, especially when a person accused of a heinous crime is given the opportunity to manipulate the process by opting to offer up information on others in exchange for leniency. He further posits that an accused who has layers of information needed by the State may offer the first layer and get a considerable reduction in the sentence, and thereafter, use the additional layers for an even better deal which may let him out of prison sooner to enjoy the ill-gotten wealth.

Dr. Thompson further points out that plea bargains are perceived as offering the accused a freedom of choice between a lesser and greater punishment in return for information or cooperation in further investigations against others. He questions whether such offering won’t send the signal that the crime committed is not as crucial as the capture or imprisonment of the other(s).

Dr. Thompson posed three other pertinent questions: How does a prosecutor decide with whom to bargain? What are the criteria and who sets those criteria? Should there be a role for the public's input? He concludes by saying that while there is a role for leniency and mercy, the process must be transparent, and plea-bargaining is not a transparent process.

CONCLUDING NOTE
With the fore going discussion in mind, it seems clear that the major purpose of plea bargaining in the U.S. today, is reducing caseloads at the expense of the accused waiving his constitutional right. The practice also raises serious questions on ethics and justice. In light of reality, what does plea bargaining hold for Guyana and other smaller economies of the Caribbean? I believe only time will determine whether plea bargaining serves a truly useful purpose that mitigates the trampling of the constitutional rights of the accused. In essence, we must now wait to see whether it would foster Escape of the Guilty, to use Ralph A. Fine’s 1987 title or whether it would turn out to be The Tyranny of Good Intentions, the title of Paul C. Roberts and Lawrence M. Stratton’s 2000 book.

INDEPENDENT COUNTRIES HAVE A SOVEREIGN RIGHT TO PROTECT THEIR CITIZENS

By D.Ron Singh

Over the last few years, we have seen an increasing number of extradition requests by the United States for criminals from around the Caribbean. Two recent requests for Dataram from Guyana, and Christopher Coke from Jamaica, have generated ongoing debates and discussions in various sociopolitical circles, not only in the Caribbean, but in the United States as well. At the same time, the Caribbean governments concerned have become integrally involved. The Jamaican officials were reviewing the terms of their legislation, the Jamaica-U.S. Extradition Treaty, 1991, and circumstances surrounding Coke’s extradition request. Meanwhile Prime Minister Bruce Golding argued that that there is an insufficiency of credible evidence to substantiate a criminal charge against Coke, and that the other available evidence was obtained in breach of the Interception of Communications Act, 2002.

In the wake of repeated requests for Dataram, the Guyanese officials amended the Fugitive Offenders Act, 1988 to address the conflicts that arose regarding the laws on one hand, and individual’s human right issues and his country’s protection on the other. Some commentators have posited that the amendment is controversial because it included a provision which empowers the Home Affairs Minister to decide whether to extradite or not.

Rather than commenting on the potential amendment controversy or the Golding position, I believe it would be more pertinent to demonstrate the potency of those positions by examining what other countries have done in similar situations.

A review of the cases and extradition requests over several decades would most likely reveal that the process is one way. It is always the powerful country seeking someone or a criminal from a poor country to stand trial for some wrong he committed in the powerful country, or against someone from that country.

Whether from a rights perspective, or other humanitarian grounds, many commentators would agree that every country has a right to protect its citizens. To that end, many countries may deny extradition requests if, in the government's opinion, the suspect is sought for a political crime. Countries, such as Mexico, Canada and several European nations, for example, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that it will not be imposed. A case on point is Soering v. United Kingdom, where the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom on a capital charge. This reasoning was based on the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. In addition, the Court ruled that the United States federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself offered assurances to the federal government, which passed those assurances on to the United Kingdom, after which the individual was extradited to the United States. Furthermore, the European Convention prohibits signatories from extraditing people to countries where there is a significant risk of torture or inhumane treatment or punishment.

Other countries, such as France, Russian Federation, Germany, Austria, China and Japan, forbid extradition of their citizens either by law or by treaty. Such restrictions are occasionally controversial in other countries when, for example, a French or German citizen commits a crime abroad and then returns to his home country, perceiveable to avoid prosecution. These countries have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute citizens accused of crimes committed abroad as if the crime had occurred within the country's borders.

In a case currently before the Guatemalan court, former President Alfonso Portill is facing extradition to the United States. He was arrested Jan. 26 on the U.S. extradition request. The Court has approved Portillo's extradition to the U.S. to face money laundering charges in New York. However, under Guatemalan law, the accused must first be tried at home in a separate case before facing charges abroad.

CONCLUDING NOTE
In light of extradition scenarios around the world, both Jamaica and Guyana were within their rights as they sought to protect their citizens. Jamaica’s stalling position was within permittable rights because the authorities sought to clarify issues relevant to the extradition of Christopher Coke. In like fashion, Guyana’s amended Fugitive Act represents a positive move if its principal purpose is to protect Guyanese from the kinds of punishment prohibited by the European Convention on Human Rights. A major concern, however, is that many third world leaders may, for sinister purposes, not release their citizens. Furthermore, the Officials may over use the power vested in them to thwart extradition based on cronyism. Perhaps these were the thoughts that have informed and invigorated the critics of the recent positions taken by Jamaica and Guyana. For these very reasons, critics of the Jagdeo Government have voiced their concerns on the power now vested in the Minister of Home Affairs with regards to extradition of Guyanese nationals. Notwithstanding the foregoing, it would be prudent for us to observe and examine the functioning of the newly vested power before we jump to premature conclusions.

(This article was written before Coke surrendered to authorities. He is currently in US custody.)