Scholars across all the jurisdictions studied in this thesis have continued to debate on the subject of coercion and threat in criminal justice (Kipnis, 1976; Leo, 1992; Pollock, 2014; Baswell et al., 2014). Newman and Weitz argued, “where that most precious of all elements ‘Free will’ is stolen, the law hastened to erect its doctrine of duress to mark the larceny” (1956: 313). Also, the general rule of criminal responsibility is that an act is done without compulsion, that if a person commits any act under compulsion, responsibility for such act cannot be ascribed to him or her as his or her willingness becomes a question of both fact and law (ibid). These are important principles that no criminal law or statute should fail to recognize.
In relation to the prevalence of threat and coercion in plea bargaining, the debate often originates from the broad range of discretionary powers of the prosecution. Studies, especially in the US where plea bargaining is most practiced indicates that threats are common mechanisms of manipulation used in securing guilty pleas (Alschuler, 1968: 60-61). Gersham for instance argues that the enormous discretionary powers exercised by officials, especially prosecutors, has given rise to situations where they have the freehand to decide “whom to charge, what charges to bring, whether to permit a defendant to plead guilty and whether to confer immunity” (cited in Stitt and Chaires, 1993: 72). In other instances, they unilaterally fit in certain kinds of charges which they deemed appropriate, to different kinds of offences, or fit into similar offences, different kinds of charges (Ma, 2002: 22).
Prosecutors have also been accused of threatening defendants with the choice between pleading guilty to a reduced charge/sentence, or going to trial to risk the full rigour of the law (Bar-Gill and Ben-Shahar, 2004: 43). This practice according to Langbein is immoral as it subjects the accused to fear and to condemnation without proper adjudication (1979: 204). He equated the practice to the medieval method of extracting a confession through torture saying, “there is, of course, a difference between having your limbs crushed if you refuse to confess, and suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive” (Langbein, 1978: 12-13). Langer, however, contends that despite these discretionary powers, most
negotiations are achieved not by threat but by the weight of evidence available to the state (2005: 251). Hence, when properly exercised, plea bargaining is a method that facilitates rather than hinder the process of justice (Ma, 2002: 22). These kinds of arguments on whether it is threat or the strength of evidence that leads to a concluded plea bargaining appears to remain unresolved not because they are contradictory, but because of the nature of the institution of plea bargaining which has established for itself a reputation for condoning informal and out of court agreements that are not always transparent. Hence, the character of each individual case and how a plea was agreed is often difficult to know. This has caused scholars to theorise these complexities by identifying some of the major factors that lead to a concluded bargain, of which strength of evidence is one and threatening the defendant is another. An important principle that must be taken into account is that, whether through the exercise of discretion or otherwise, the principles of criminal justice forbid any form of threat and coercion? The overwhelming answer to this question is that when an individual is coerced to accept culpability, the whole process becomes prejudicial to the rights of such individual and may lead to wrongful convictions (Bar-Gill and Gazal, 2004: 1).
While legislation and guidelines have been enacted in many jurisdictions to discourage putting the defendant under pressure, these legal measures are limited and “some of the traditional anti-duress measures may not do much to redress their misfortune…it might often be better for these coerced individuals if such anti-duress measures would not be applied at all” (Gazal and Ben-Shahar, 2004: 1). This counter-intuitive position of Gazal and Ben-Shahar is based on the theory of ‘Credible Coercion’, which suggests that “if the threat were to be turned down, it would be in the interest of the threatening party to carry out the threat, rather than retreat” (ibid). Although in principle there are other traditional safeguards such as ‘allocution procedure’, during which the court puts questions to the accused in order to ascertain their voluntariness, evidence has shown that in most cases of plea bargaining, the courts focus more on the form of the plea rather than its substance (McConville, 1998: 569). Some critics, therefore, see even the process of allocution65 as a way of legitimating the accused’s plea rather than a means of inquiry (ibid).
65 Allocution or allocutus is a statement that defendants make to the court after conviction but before sentencing. It is often done to seek the courts leniency.
Another common practice is the mis-presentation or exaggeration of evidence. This technique is often used as form of intimidation to threaten the accused with a harsh penalty at trial and with leniency for pleading guilty (Turner, 2006: 206). The implication of this is that plea bargaining is presented to the defendant as the only reliable means to avoid a punitive sentence, which in the end allows the prosecutor to effectively dictate the terms of the negotiation, leaving the defence with fewer options than to plead guilty (O’Hear, 2007: 425). This controversial character of plea bargaining has essentially turned the prosecutor into an agent of the state whose primary role is to ensure a guilty plea at all cost. It also undermines the moral responsibilities of him or her as a servant of the law whose duty is to ensure that the guilty does not escape, and the innocent does not suffer.66
The controversial nature of prosecutorial powers and their potential misuse was revealed in an empirical study by Caldwell (2011), where he showed how prosecutors engage in the noxious behaviour of overcharging defendants in order to pressure them into accepting a plea bargain. 67 He identified the prevalence of this kind of behaviour, which he categorised as ‘the horizontal’ and ‘the vertical’ overcharging technique (ibid: 85).68 Easterbrook, however, contends that the practice of setting high offers is mainly for the guilty, as for the innocent, such offers will often be rejected in the hope that an acquittal at trial is imminent (1992: 1969). Yet, short of open admissions of guilt by the defendant, the prosecution will not always know, beyond reasonable doubt, that the defendant is, in fact, guilty (Caldwell, 2011: 72). Hence, one is bound to disagree with Easterbrook in the face of empirical evidence that suggests that plea bargaining is associated with coercive practices in framing charges. As unethical and misleading as these practices are, evidence further suggests that they are amongst the key factors that make plea bargaining work effectively, especially in relation to the risk-averse defendant, often resulting in inaccuracy and wrongful convictions (Bar-Gill and Gazal, 2004: 1). Yet, some proponents maintain that such conducts do not arise because of the enthusiasm of the prosecutor to obtain a conviction, but because the
66
Berger v. United States, 295 U.S. 78 (1935). 67
Over-charging in the general sense connotes a situation where the prosecution formulates charges for offences that the defendant is clearly innocent of in order to induce a guilty plea for the original accusation. See e.g. Standen (1993).
68
Some scholars e.g. Caldwell (2011: 85) categorised this practice stating that ‘Horizontal over-charging’ entails a situation where charges are filed on distinct crimes resulting from similar conducts and ‘Vertical over- charging’ involves the charging of harsh variations of the same crime where the evidence available only supports lesser variation.
innocent may sometimes appear guilty (Easterbrook, 1992: 1971). Therefore, what disrupts the separation of the guilty from the innocent should not be seen as only a flaw in a bargaining process, but also a flaw that is common with trials (ibid). A further claim was that most prosecutors are well aware that charging the innocent is a poor choice because such persons are likely to fight in trial and earn an acquittal (ibid). These argument, however, do not take away the bad reputation of coerced pleas. It is therefore important not to ignore the use of discretionary powers, especially where officials unfairly decide which law to enforce and which to disregard.
Although some studies have attempted to discredit the argument that innocent people plead guilty due to obnoxious behaviours of officials (Radelet et al., 1992), a recent work by Rakoff et al., (2014) demonstrated that the case of innocent defendants pleading guilty is a widespread problem in plea bargaining. They cited other similar examples of the disturbing frequency of this problem, particularly the records of the US National Registry of Exonerations,69 which indicates that of the 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 per cent) involved false guilty pleas (ibid). In allegations that attract capital punishment, empirical studies have long demonstrated evidence to suggest that innocent defendants often plead guilty to avoid the death penalty (ibid). Similar findings by Gross (1996) have shown that in allegations of offences that attract the death penalty, prosecutors use the threat of full sentence at trial to secure a guilty plea. Erhdhard (2008) also revealed the consensus among prosecuting and defence attorneys that intimidation with a potential death penalty for capital offences is a strong impetus that puts the prosecutor in a unique position of power and advantage (ibid: 316-317). Perhaps, this critique cannot be generalised because capital punishment is no longer universal.
Other scholars, however, argue that it is not in the prosecutor's best interest to engage in coercing the innocent because “every conviction of an innocent person undermines deterrence by reducing the marginal punishment of the guilty, and thus injures the prosecutor” (Easterbrook, 1992: 1971). Notwithstanding these arguments, the advantages
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that guilty plea confers makes it very likely that officials might act inappropriately to secure the defendant's plea (Standen, 1993: 1501). Bar-Gill and Ben-Shahar (2004), however, contend that the only fault-line in respect of prosecutorial coercion is when such threats are not credible (ibid: 44). Where the evidence against the accused is strong, cogent and verifiable, then such a threat is not only credible, it is in fact to the advantage of the accused, because a trial will indeed result in a heavier sentence (ibid). Bibas also argues that by threatening to go to trial, the prosecution is only assuring that he or she will exercise legislatively authorised powers (2003: 1427). Any assumed unfairness occurs only where the prosecutor uses disproportionate offers or false claims as a means of circumventing weak or difficult cases (Gentile, 1969: 550) But it could be argued that overcharging or fraudulently misrepresenting evidence contradict the essential principles of justice. Scott and Stuntz also argued that as long as post-trial sentencing was not manipulated by the prosecution, “coercion in the sense of few and unpalatable choices does not necessarily negate voluntary choice,” and neither does a large sentencing discount (1992: 1920-1921). This line of argument is also weak on the ground that, coercion and threat, in all forms, affect voluntariness; negate the values of a fair deal, and leads to imposition rather than free choice. There is no doubt an accused always has the option to insist on a trial, but the problem is that he or she may not always know whether the threat is genuine or not, as the bulk of evidence or the absence of it is often held by officials. Justice Stevens of the Wisconsin Supreme Court summed up the inappropriateness of coercion saying:
A prosecutor should not act as a partisan eager to convict, but as an office of the court, whose duty it is to aid in arriving at the truth in every case… His object, like that of the court, would be simply justice; and he has no right to sacrifice this to any pride of professional success. And, however strong may be his belief of the prisoner’s guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet justice so attained is unjust and dangerous to the whole community.70
There has been a number of proposals on how to remedy these undesirable aspects of plea bargaining. Bibas, for instance, advocated the full involvement of defence counsel so that facts and evidence could be evaluated by a professional on behalf of their clients (2004: 2531). Others suggested that rules should be implemented to require some organisational
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review of the facts at an early stage before the prosecutor formulates any charges (ibid).71 The problem here is that internal organisational oversight often involves members of the same organisation and, therefore, lacks the necessary objectivity (Caldwell, 2011: 90). Furthermore, where such oversight becomes firm and objective, it has a tendency to result in confrontational outcomes as members of the organisation may likely be pitched against each other (ibid).
Other critics called for a system of plea bargaining that should only emphasise on sentence bargain (Alschuler, 1976: 1137). Where charge bargaining becomes necessary it “should be used only as an incident to ‘sentence bargaining’ in situations in which the sentence that seems appropriate cannot be imposed without an adjustment of the charge” (ibid). This idea is premised on the notion that, if the sentence is not determined by the charge but by evidence, it will technically restrict prosecutors to filing only appropriate charges (ibid). But even with these kinds of measures, nothing stops prosecutors from filing excessive charges, and in the fear of testing evidence at trial, defendants will continue pleading guilty to lesser charges in spite of the weakness of evidence (Caldwell, 2011: 86). Therefore, he contends, it is only when the justice system is trial centred, that a prosecutor will have less reason to file charges that he does not intend to pursue, or that which cannot secure a conviction (ibid: 84).
Coercion also touches on the principle of individual liberty and human rights.72 Hence, courts have consistently emphasised the essence of voluntariness, with some going to the extent of declaring any plea deal induced by threat as void.73 It is indeed important to state the common regulations contained in most plea bargaining guidelines of different legal regimes in which voluntariness is cardinal to the outcome of any plea bargain. Paradoxically, studies have shown that because negotiations promote judicial economy and procedural efficiency among other things, judges are often reluctant to venture into the arena of testing the fairness of an already concluded deal (Fisher, 2000: 1039; Turner, 2006: 206;
71
The German Model of plea bargaining has incorporated these requirements in their system, allowing the defence to inspect the prosecutors file.
72
For instance, other provisions such that in rule 11 of the American Federal Rules of Criminal Procedure gives the judge the discretion to reject a plea bargain on these grounds and to advice the defendant on his right to withdraw his plea, See e.g. Starkweather (1992:859).
73
Caldwell, 2011: 71). The knowledge of this lack of judicial scrutiny is also among the reasons prosecutors use skewed tactics and undue pressure on defendants (ibid: 84). Moreover, in jurisdictions where prosecutors have strong political affiliations, especially where they are elected,74 they may choose to prioritise the securing of convictions as a means of boosting their reputation and their future political prospects (Alschuler, 1968: 106).
To address some of the problems of coercion and compromises inherent in plea bargaining, some scholars think judicial participation should be encouraged in order to “balance the normative obligation of neutrality with the bureaucratic demand for efficiency” (Lee, 2005: 33). Although some critics argue that judicial involvement slows plea bargaining, it is also important to note that the quest for expediency, no matter how important, should not compromise the rights of parties to obtain justice (Langer, 2005: 250). Striking a balance between the two i.e., ‘due process’ and ‘efficiency’, it is safe to argue that even when ensuring due process, efficiency can still be achieved, especially if the system avoids unnecessary legal technicalities and relies mainly on the substance of a case. Moreover, it is important to stress that the legitimacy of any criminal justice system is that it does not compromise procedural justice for the sake of efficiency and cost. Furthermore, if plea bargaining becomes inevitable, defendants unsatisfied with the decision should be able to request a new hearing or go on appeal. This knowledge by the prosecution and the defendant of other legal alternatives is an important reform for the institution of plea bargaining.