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Carmelo Mifsud Bonnici, Parliamentary Secretary for Justice once described the law courts as a “suq ta’ Bagdad”. He was referring to the over-crowding outside the halls, where feuding parties are forcibly thrown into each other’s arms by throngs of irate witnesses waiting to be called up to testify, while lawyers flap through in their togas attempting the feat of bi-location. The Parliamentary Secretary was right – the human melee in the court corridors does resemble a marketplace scene, even the court marshals summoning the parties sound like raucous hawkers urging people to buy their wares. And now the final transition from courts of justice to sweaty “suq” will be complete, that is, if the Private Members Bill regarding plea bargaining being proposed by Labour MP Jose Herrera, is approved by Parliament. Only, in this case instead of haggling over the price of some souvenir camel or leather poufs with a street vendor, persons accused of a crime are going for a discount on their sentences. It’s a cop-out and it’s called plea-bargaining.
Predominantly, an American export, the institute of plea-bargaining is essentially a system where prosecutors can offer a deal as an incentive to a defendant to plead guilty. Plea bargains fall into two main categories. The first of these is the ‘charge bargain’ when the prosecutor allows a defendant to plead guilty to a lesser charge, or to only some of the charges that have been filed against him. For example, a defendant charged with burglary may be offered the opportunity to plead guilty to attempted burglary. ‘Sentence bargaining’ is the other form of plea-bargaining and it effectively means that a defendant gets a reduced sanction in exchange for a guilty plea. This would be the case when a defendant pleads guilty after his lawyer and the prosecutor would have agreed upon an appropriate punishment, (such as a fine instead of imprisonment). In most jurisdictions, this sentence would have to be approved by the judge.
In Malta, plea-bargaining took place informally for a long number of years and the courts seemed to have adopted the practice where some sort of concession was given for a guilty plea. Although, there has always been a little bit of give and take in criminal proceedings with defendants co-operating or more colloquially ‘grassing’ on their accomplices in order to obtain a lighter sentence, this sort of co-operation has always been looked upon askance by outsiders. Seeing lawyers and prosecutors sidle up to the bench and murmuring away to the magistrate or judge does not inspire confidence in the system. Neither does the fact that many of the lawyers are friendly with the same members of the judiciary – inevitable though this is, in a small country like ours.
Despite the occasional raised eyebrow, things continued in this informal manner until 2002 when the headache of the pending criminal case-load turned into a full-blown migraine. Solomon, the original judge, may have been whirring in his grave, but plea-bargaining made it to the statute book in 2002. What we now have is sentence-bargaining before the Superior Criminal Courts which deal with the more serious offences (and the Court of Magistrates in limited circumstances). Under our system, the defence lawyers and the Attorney General prosecuting the case, may agree on the punishment to be given if the accused pleads guilty. So, for example, they may agree that a person who is charged with rape, a crime that is punishable with three to nine years imprisonment, could plead guilty and benefit from a pre-agreed term of four years imprisonment. Thankfully, the presiding judge has the final say-so as to whether to accept the agreement or not (Actually, most observers can’t help smiling approvingly when judges go ahead and mete out punishment anyway. It happened to Al Capone who was bragging about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then declared that he was not bound by the bargain, and Capone did seven and a half years in Alcatraz).
To date, plea-bargaining is only allowed before the Court of Magistrates (the court which deals with the less serious criminal offences and some contraventions) in a few instances. This has lead to a couple of cases where the informal deal brokered between the prosecuting police officer and the defence, was ignored by the Magistrate. The Private Members Bill being proposed is an attempt to remove this anomaly and to introduce the possibility of plea-bargaining in all case before the magistrates’ courts.
If our legislators’ collective brains keep on coasting on neutral and if the court case-load retains its unmanageable proportions, they’ll OK the bill. By doing so, they would have dealt another heavy blow to teetering, tottering public confidence in the way justice is administered. Plea-bargaining under any guise is a repellent institute. Rather than extending its practice, it should be repealed altogether and the law courts should go back to being a place where justice is meted out and not cheapened by further transformation into a hagglers’ paradise.
Those who are in favour of plea-bargaining say that it is an efficient, expeditious alternative to criminal trials. They maintain that it is a useful way of pinning down offenders who would not otherwise have confessed to their crimes or been successfully prosecuted. Ignoring the fact that victims who would have plucked up the courage to report crimes are ready and expect to testify against perpetrators, plea-bargain fans contend that it spares victims the trauma or inconvenience of testifying. And finally those crazy criminal gurus who spill out those bothersome buzz-words like “controlled case management” and “offender accountability”, insist that allowing the defendant to plead guilty is the first step towards his rehabilitation. According to them, the fact that the defendant has admitted his wrong-doing means that he is ready to repent and reform. Of course, the more cynical (and perhaps more realistic) would point out that the defendant couldn’t give a toss about his wrongdoing and his repentance is as real as a Page Three girl’s boobs. His guilty plea is a calculated decision arrived at after a careful cost-benefit analysis of the situation. It might even have been factored in as an unavoidable “business expense” in the course of his criminal activity. People participating in high-risk criminal activity such as drug-dealing are savvy enough to foresee the possibility of their being apprehended. Being relatively assured that their penalty will fall within certain lower limits, goes a long way towards giving them certainty and peace of mind – a dismal prospect. The stability of criminal enterprise should never be aided by the courts in any manner, however indirect.
And that is really the bottom line. Plea-bargaining is an odious institute because it entails negotiations with criminals and rewarding them for their ability to play the system. It is tainted and can never be justified. It is a system which is highly susceptible to abuse and accusations of cronyism and untoward closeness between lawyers, prosecuting officers and members of judiciary. The credibility of the machinery of the administration of justice has been battered enough. We don’t need another thwack on the head.
cl.bon@global.net.mt
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