Plea Bargaining: An Analysis Of Its Role In Criminal Justice Administration

May 16, 2014

I. Introduction

The administration of criminal justice continuously evolves in response to changing socio-economic circumstances. The recurring theme across criminal jurisdictions, however, is guaranteeing a fair trial to the accused, in the process achieving the delicate but essential balance between the right of the accused to a fair trial, as well as the society’s interest in punishing criminals.

The practice of ‘plea-bargaining’1 means the ‘pre-trial negotiations’ between an accused, generally represented by his defense counsel, and the prosecution, so as to reach an agreement wherein the accused will plead guilty in return for certain concessions by the prosecution. These concessions principally relate to the prosecution pleading for a reduced sentence, or refraining from framing certain charges. Thus, plea-bargaining includes not simply formal, officially sanctioned plea-bargaining, but also informal, sub rosa behavior patterns in which indirect inducements, unspoken commitments, and covert cooperation between the prosecution and defense operate instead of an explicit bargaining.

The proponents of plea-bargaining contend that it ensures that the guilty are punished, without the ordeal of a time-consuming and expensive judicial trial. This also appeals to the accused, since his not only his punishment reduced, but also the unpredictability of judicial trials or jury trials are done away with. This also reduces judicial arrears, as a number of criminal trials, particularly those relating to small offences, are settled accordingly. Not surprisingly, this is often a win-win situation for all. However, critics contend that this practice in itself is devoid of constitutional justification. This rests on the proposition that only jury trials enable the truth to be determined where litigation is adversarial. Also, there is the apprehension, justified in some measure that this practice could result in an accused, otherwise innocent, being coerced into confessing to committing an offence. In addition thereto, the accused is sentenced to a lesser punishment. Thus, it is sometimes claimed that this whole practice in itself amounts to a ‘complete failure’ of the trial procedures, which are so fundamental to the Criminal Justice System.’2

The aforesaid criticisms notwithstanding, the point remains that this practice is proving to be increasingly indispensable to the criminal justice administration in a number of the Western countries. In the US, most of the criminal punishments are the result of either the accused pleading guilty in the course of the trial, or the prosecution and defense successfully concluding a ‘plea-bargain’. This practice is also popular in the criminal justice administrations of countries like Britain, Canada, Germany and Italy. However, only in recent times has it been introduced in the Indian criminal justice administration. An entirely new chapter ‘Chapter 21A’ dealing with ‘Plea Bargaining’ has been inserted in the Code of Criminal Procedure, 1973.3 While s. 265B talks about the ‘application of plea bargaining’, s.265C talks about the guidelines for ‘mutually satisfactory disposition’ and rest of provisions deal with the other aspects of the ‘plea bargaining’.

This paper endeavors to examine the whole process of ‘plea-bargaining’. Initially outlining this process, this paper thereafter observes the actual operation of this practice in the US criminal justice administration, with specific reference to its probable abuses and its criticisms. Lastly, this paper deals with the evaluation of this process under the Indian criminal justice system, in the perspective of the Criminal Law (Amendment) Act, 2005.

II. Plea-Bargaining In USA

Plea bargaining permeates the criminal justice administration in the US. Although there is no legally-recognized right to a negotiated plea4, most criminal proceedings conclude in the accused pleading guilty, or his being discharged. In many jurisdictions, over 90% of the total numbers of criminal trials are through plea-bargaining.5 There remains a fair degree of discretion in the hands of the prosecution and judiciary in trials wherein plea-bargaining is resorted to, since the prosecution generally offers concessions in return for the accused’s plea of guilt, while the judge determines if this plea should be accepted or rejected. The California Penal Code defines “plea bargaining” as any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to ‘plead guilty’ or ‘nolo contendere’6, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.7

(a) Types of Plea Bargaining:

Not all successful plea-bargaining concludes in a ‘guilty plea’. Some negotiations conclude in the charges against the accused being dismissed. There are different kinds of negotiations. Firstly, those in which the prosecution agrees to recommend to the court that one or more of the charges be dismissed in return for the accused pleading guilty for another charge. This generally requires the accused to plead guilty for charges relating to lesser offences. This approach is known as ‘charge bargaining’8. In the alternative, the prosecution may agree to recommend a particular sentence in return for the plea. This approach frequently is called ‘sentence bargaining’9. In general, plea-bargaining combines the elements of both sentence and charge bargaining. The commonality is that the accused, in return for the prosecution’s pleading for a reduced sentence, waives his privilege against self-incrimination and the right to a trial.10

In addition to the aforesaid, there are certain other kinds of negotiated settlements, which are ‘Ad Hoc plea bargaining’ and ‘implicit plea bargaining’ or ‘pleas without bargains’. ‘Ad Hoc plea-bargaining’ may involve neither a plea nor a sentence. For example, if an accused seeks to save himself from the statutorily prescribed sentence for a minor offence, then the prosecution may agree to dismiss the charges, if the accused agrees to contribute to a local charitable fund. Thus, in ad hoc bargaining, the defendant may or may not be punished at all. As opposed to this, ‘implicit plea bargaining’ occurs when the evidence on record is strong and there being limited scope for the defense counsel to successfully defend the accused. In such a situation, a guilty plea may be entered without any formal bargaining. This ‘shared understanding’ thus creates an expectation on the accused’s part, tacitly recognized under the law, that his pleading guilty will result in a lesser sentence than the maximum, even in the absence of a formal agreement being concluded to this effect.

(b) Legal issues in ‘Plea-bargaining’:

The critics of plea-bargaining contend that in the ultimate analysis, this practice is nothing more than offering incentives to waive the right to a trial, as guaranteed by the Constitution.11 This practice initially lacked any constitutional sanction, as evidenced in the case of United States v. Jackson 12, wherein a statute13 permitted imposition of death sentence only upon a jury’s recommendation and thereby made the risk of death the price of a jury trial; the court observed that it put “an impermissible burden upon the exercise of a constitutional right14. Notwithstanding this initial reluctance on the part of the US judiciary to confer legitimacy to this practice, in subsequent judicial rulings, this has been justified. In Brady v. United States15, the Court even upheld a guilty plea in a situation wherein a full jury trial could have resulted in a death sentence for the accused.16 In re-examining the US Supreme Court’s ruling in the Jackson case, the Court held that this ruling simply required that guilty pleas be voluntary and intelligent. Observing that this practice benefits both the prosecution and defense, it refused to invalidate this practice.

In the case of North Carolina v. Alford17, the Court upheld a plea of guilt entered into to avoid a possible death sentence, even though the defendant adamantly pleaded, both before and after the plea, that he is innocent. In the case of Santobello v. New York18, the US Supreme Court offered another legal justification for this practice. In outlining this, Burger, CJ, accorded significance to the state’s interest in the expeditious and efficient disposal of criminal cases through plea-bargaining. The following words are pertinent:

The disposition of criminal charges by agreement between prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and Federal Government would need to multiply by many times the number of judges and court facilities.”19

The US Supreme Court’s most recent affirmation of this practice again endeavored to establish a settled legal principled for upholding the constitutionality of this practice. In the case of United States v. Goodwin20, the accused was indicted on additional charges after plea negotiations broke down. He therefore requested a jury trial. The Court upheld the addition of charges.

The legislative mandate is most succinctly observed in Rule 11 of the Federal Rules of Criminal Procedure, which comprehensively outlines the procedure relating to plea-bargaining in the US. This ensures due process in as much as a judge is under a positive legal obligation to ensure the following:

  • That the      accused understands the charge and the implications of pleading guilty, so      that this plea is voluntary;
  • That the      accused pleading guilty will further the administration of justice;
  • That the      judge, in admitting or rejecting the plea of guilty, is only performing a      supervisory role, as opposed to his directly participating in reaching the      negotiated settlement;
  • That the      judge, in exercising his discretion relating to if the plea should be      admitted or rejected isn’t acting in an arbitrary manner.

(c) Justifications:

Notwithstanding the sharp criticisms from different sections of the Government and legal experts in relation to this practice, it still continues to remain the predominant means of disposing off cases. This is perhaps best explained in the following words of the former US Chief Justice, William H. Rehnquist:

It should be recognized at the outset that the process of plea bargaining is not one which any student of the subject regards as an ornament to our system of criminal justice. Up until now its most resolute defenders have only contended that it contains more advantages than disadvantages, while others have been willing to endure or sanction it only because they regard it as a necessary evil.”21

The popularity of this practice is explained in the fact that it is routinely relied upon by both the courts and prosecutors to dispose of their caseloads in an efficient and timely fashion. In addition to this, this practice reduces the time-gap between the commission of the offence and the resultant punishment, so that the punishment retains its deterrent character. This also reduces the costs, uncertainty and risks associated with jury trials. The courts and prosecutors are thus able to concentrate on trials relating to more serious offences. This also renders the process of criminal justice administration more flexible, as not all criminal charges require a full criminal trial.

(d) The Criticisms:

The constitutional and doctrinal objections put aside, this practice seriously impairs the public interest, in as much as the punishment is lessened, and the distinction between a criminal and innocent sometimes being blurred. Some of the criticisms are hereinafter presented:

  1. In the first place, the accused is forced to waive his constitutional rights, in particular, the right to a jury trial, as guaranteed to him by the 5th and 6th Amendments as well as the Bill of Rights. This practice only gives, as its critics contend, a skulking truce. The accused, if insisting on the right to trial, which is actually a legal right guaranteed to him, is only at the receiving end, as he is facing the risk of more serious punishments than what would otherwise be the case.
  2. This practice sometimes reduces the interests of society in punishing those responsible for committing crimes. Prosecutors and judges, driven by the administrative exigency of ‘load shedding’, prefer to conveniently dispose off criminal trials by settling for lesser sentences for the accused. In a strict sense, any compromise entered into between the prosecution and defense only compromises on the element of deterrence of punishments.
  3. This encourages the accused to breed contempt for the legal process, since he is provided the opportunity to legally subvert the legal process by simply entering into the ‘right choices’.
  4. The Police and prosecutors, desiring to elicit a plea of guilt, tend to frame more charges than warranted, in the process complicating even a trial for a small offence.
  5. A serious concern is to an innocent person pleading guilty. This is all the more probable in the case of those hailing from rural backgrounds, lacking the education or awareness to realize the legal implications of their plea of guilt. These people are often unable to refuse to plead guilty to a prosecutor who keeps threatening them with a sentence of imprisonment.

III. Evaluating ‘Plea- bargaining’ in Indian scenario:

For quite some time now, legal experts in India were examining the introduction of the practice of ‘plea-bargaining’ in the Indian criminal justice administration. In the light of the alarming state of judicial arrears, as well as the dwindling public patience in the slow judicial process, the practice of ‘plea-bargaining’ is being widely perceived as a panacea for all wrongs afflicting the judicial system. Noted academician Prof. Dr. N.R.Madhava Menon contends that this secures significant advantages to the accused, in as much as he is able to save a good deal of time, and expenses. In his opinion, this “mutually satisfactory disposition” is the solution to the inordinate delays in the Indian judicial process.22

Until recently, the Indian criminal justice administration refused to afford recognition to the practice of ‘plea-bargaining’23 Interestingly, on a plain reading of Sections 206(1) and (3) of the Criminal Procedure Code, read along with Section 208(1) of the Motor Vehicles Act, the accused may plead guilty in relation to petty offences wherein the punishment is simply a fine. However, this excludes any form of bargaining or negotiation between the prosecution and defense. This is also different from provisions relating to pleading guilty to the charges, as already provided for in terms of Sections 229, 241 and 251 of the Criminal Procedure Code. The provisions under these sections give court’s or magistrates (as the case may be) ‘wide discretionary powers’ either to accept or reject the plea.24 Moreover, such ‘plea of guilty’ is not a result of any prior consultation between the prosecution and defense and doesn’t involve any prior meeting with the judge.

After considerable deliberations on this issue, the Indian Parliament put into operation the recommendations of the Malimath Committee, which in turn endorsed the recommendations as contained in the 142nd and 154th Reports of the Law Commission of India. As a consequence, pursuant to the Criminal Law (Amendment) Act, 2005, ‘Chapter XXI A’ dealing with ‘Plea Bargaining’ has been inserted.

The option of ‘plea-bargaining’ is available only in respect of those offences for which the punishment is imprisonment for a period of up to seven years. Thus, all serious offences fall outside its ambit, thereby recognizing the interests of the community in punishing those guilty of committing an offence. This also excludes those offences, which affect the country’s socio- economic condition, or are committed against a woman or a child (defined as a person below the age of 14 years)25. This represents the concern of the legislators that this practice shouldn’t, at least at the outset, be extended to all kinds of offences, irrespective of their nature or gravity.

The application for plea-bargaining should be filed by the accused voluntarily, before the court in which such offence is pending for trial.26 Thereafter, it shall be upon the prosecution and accused to negotiate a mutually satisfactory disposition of the case. Once this is completed, the court shall dispose off the case by sentencing the accused to only half of the punishment that is provided for or extendable.27

The interests of the accused are protected, in as much as the statement or facts that he disclosed in an application for plea-bargaining or in the course of the negotiations cannot be used for any other purpose, thereby saving him from providing incriminating evidence against himself. The judgment delivered by the Court in the case of plea-bargaining shall be final, without any provision for appeal.28

This apart, critics are leveling criticisms against this practice, which has only recently been accorded legislative sanction. These criticisms shall be outlined. Firstly, there may be the lack of independence on the part of the judge admitting or rejecting a plea-bargaining application. Secondly, if this application is rejected, then it is obvious that they could be biased against the accused, as he already expressed his willingness to plead guilty. Thirdly, as this application is heard and disposed off in the judge’s chambers, as opposed to an open court, this may lead to public criticisms as to the fairness of this process. Fourthly, since the Police are a part of this process, there is sufficient reason to believe that the plea has been coerced. Fifthly, given than under-trials often languish in prisons for years at a stretch, this practice could encourage innocent persons to plead guilty. Sixthly, there are no guidelines as to the exercise of prosecutorial discretion, due to which there may be inconsistent bargains for similar crimes. Lastly, the absence of the right of the accused to appeal from the Court’s ruling as to the application for plea-bargaining eliminates the much-needed judicial supervision of such applications.

IV. Conclusion

However much this practice appears to be a deviation from the rule that an accused is entitled to a fair trial, this practice will gain ground in he future years. This trend is only supported by the fact that India got its first case of ‘plea bargain’ recently. A trial court in Delhi sentenced an accused to seven days in jail and fined him Rs 500, for barging into his neighbour’s house ten years ago. By continuing with the trial and not pleading guilty, the accused could have been sentenced up to three years in jail. Disposing off the case, Metropolitan Magistrate Pulastya Pramachala in his order said, “Since the accused has appealed voluntarily and both parties have reconciled, his sentence is reduced to seven days.” 29

The Indian criminal justice administration is presently facing a significant number of pending cases. Therefore, some compromises are warranted, as long as this is ‘fair, just and reasonable’. However, being circumspect is necessary, so that this process doesn’t violate the constitutional guarantees. The newly inserted Chapter 21 A to the Code of Criminal Procedure, 1973 is a brave step ahead. Our endeavour should be to use it towards serving the ends of justice and only the actual implementation of the provisions can help us improving the practice of ‘plea bargaining’. Otherwise, this shall only result in a miscarriage of justice, instead of expediting the judicial process.

1 The practice of ‘Plea Bargaining’ is also known as ‘negotiating a settlement’, ‘cropping a plea’, or ‘cropping out’ in U.S.A.

2 Similar views are held by Langbein, John. H., In “ Torture and Plea- Bargaining”, Eeinberg, Joel & Hyman Gross, Philosophy of Law, 4th ed., 1980, p.392.

3 Vide Criminal Law Amendment Act, 2005 (2 of 2006) with effect from 5th July 2006.

4 For a more detailed judicial opinion over this issue see generally, Weatherford v. Bursey, 429 U.S. 545, 561 (1977) & State v. Goulette, 258 N.W.2d 758, 762 (Minn. 1977)

5 Berger, Ronald J.; Marvin D. Free Jr., Patricia Seerles, 2nd edn., 2007, Viva Book Pvt. Ltd., p. 435.

6 ‘Nolo Contendere’ or ‘no contest’ is not an ‘admission of guilt’. ‘Guilty Plea’ is admissible as evidence against the defendant but plea of ‘nolo contendere’ is not. For a detailed discussion upon doctrine of ‘nolo contendere’ refer to : Bhatt, Jitendra N., Justice, “Doctrine of Nolo Conendere”, 2005 (5) SCJ, p. 28

7 Cal. Penal Code 1192.7(b), also available at [as on 3/07/07]

8 Huff v. State, 568 P.2d 1014, 1015 n.2 (Alaska 1977), defining ‘charge bargaining’ as the “process whereby the accused agrees to enter a guilty plea or plea of nolo contendere in exchange for a reduced charge”.

9 People v. Killebrew, 330 N.W.2d 834, 838 (Mich. 1982), wherein a sentence is defined as ‘bargaining as the offer of a reduced sentence or favorable sentence recommendation from the prosecutor in exchange for a guilty plea’.

10 See generally, Brady v. United States, 397 U.S. 742, 748 (1970), wherein the US Supreme Court observed that a guilty plea waives the privilege against self-incrimination and the constitutional right to trial.

11 The 6th Amendment to the US Constitution clearly states that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …”.

12 390 U.S. 570 (1968).

13 The Federal Kidnapping Act provided that interstate kidnapers “shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend……”

14 Ibid, at p. 572.

15 397 U.S. 742 (1970).

16 Id. at 747.

17 400 U.S. 25 (1970).

18 404 U.S. 257 (1971).

19 Id. at 260.

20 457 U.S. 368 (1982).

21 William H. Rehnquist, Speech Before the National Conference on Criminal Justice (Jan. 25, 1973), in A National Strategy to Reduce Crime, Nat’l Advisory Comm’n on Criminal Justice Standards & Goals, at p.97

22 Menon, Madhava. N.R., “Plea bargaining”, The Hindu, Saturday, January 24, 2004 also available at : [ last visited on 03-07-2007]

23 Recently, in State of Uttar Pradesh v. Chandrika, (AIR 1999 SC 164) the Supreme Court observed that the Indian position on the issue of ‘plea bargaining’ is settled one: “it is not recognized and is against public policy under our criminal justice system.” The court went on to review its earlier decisions on this issue and held that such a procedure will be clearly violative of Art.21.

24 Usual practice followed by the court is that it rejects the ‘plea’ and proceeds with the recording of evidence and subsequent trial.

25 Refer s.265 A (1) (b), Code of Criminal Procedure, 1973.

26 Refer s.265 B (1) , Code of Criminal Procedure, 1973

27 Refer s.265 E, Code of Criminal Procedure, 1973

28 Section 265G of Code of Criminal Procedure, 1973 envisages no appeal except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution.

29 [ as on 03/07/07]