Plea bargaining: For whose convenience?

The constitutional law of criminal procedure, ostensibly designed to regulate state power, imposes no constraints on prosecutors’ plea-bargaining practices at all. Plea bargaining operates outside the law’s shadow. It is governed instead only by brute prosecutorial power that is exercised in ways not usually written down anywhere, let alone governed by formal legal standards.

Plea bargaining was formally introduced into the Maltese Criminal Code in 2002. It was presented as a way to expedite cases and reduce court backlogs. Early on, legal experts remarked that the new legislation was half-baked, suggesting the initial rules were not fully developed.

There are several types of plea-bargains that defendants might encounter. Charge bargaining involves negotiating for a guilty plea in exchange for lesser or fewer charges, potentially reducing the severity of the punishment. Sentence bargaining, on the other hand, focuses on the length and type of sentence, with defendants seeking more favourable terms. Fact bargaining is less common and involves an agreement on certain facts of the case to prevent other incriminating evidence from being introduced. Understanding these types can provide defendants with a clearer picture of what to expect and how to navigate the complexities of their legal situation.

The core of the process involves an agreement on punishment between the accused and the Attorney General, but the agreement is not final until the court approves it. While the Attorney General typically involves the victim’s family (parte civile) in the agreement, they are not always legally obligated to.

The ongoing debate about the role of plea bargaining continues to be a controversial subject. Only recently, after Roderick Cassar was sentenced to 40 years in jail after changing his plea to guilty of femicide over the shooting of his estranged wife Bernice in 2022, the victim’s family publicly expressed their wish for a change in laws that currently allow reduced sentences for guilty pleas.

Plea bargains can sometimes result in reduced charges or sentences that don’t reflect the severity of the crime. This can be frustrating for victims and their families, who may feel that justice has not been adequately served.

Plea deals are often negotiated behind closed doors, with little public oversight. This can create a perception of inequality, where similar crimes receive different penalties depending on the prosecutor or judge.

But can it be that the state is relying on plea bargaining as a solution for other failings in our criminal legal system? Plea bargaining often serves the convenience of the courts rather than the ends of justice.

There is constant pressure from police and prosecutors, who want to process cases as quickly as possible or cover up unlawful and abusive arrests, to resort to plea bargaining. Sometimes those awaiting trial are persuaded because of other problems within the system, such as a lack of access to a reliable lawyer, excessive prison sentences, long pre-trial detention periods due to the length of criminal proceedings, high court costs and lawyers’ fees, and overcriminalisation.

On the one hand, even if an accused thinks accepting a plea bargain is to their advantage, they can end up getting a much worse deal than they expected.

Prosecutors are often caught in an ethical conundrum when it comes to plea bargaining. While they are tasked with upholding justice and ensuring the guilty are held accountable for their actions, they must manage their caseload efficiently and make pragmatic decisions about which cases to pursue to trial. This balancing act can lead to difficult ethical decisions, particularly when considering the impact of their choices on the lives of defendants and the integrity of the justice system. Prosecutors must navigate these challenges carefully, ensuring that their actions align with the principles of fairness and due process.

The widespread use of plea bargaining raises questions about its impact on fairness. Critics argue that it may lead to ‘justice by negotiation’ where the outcome is more about the bargaining skills of the involved parties rather than the facts of the case. This can result in disparate outcomes for similar offences, undermining public confidence in the legal system’s ability to deliver equal justice. Moreover, the emphasis on resolving cases quickly can sometimes overshadow the need for a thorough examination of the evidence, potentially leading to wrongful convictions or the failure to adequately punish criminal behaviour.

Our plea-bargaining system, while efficient, has its flaws and needs to be reformed. One may argue for greater transparency in the negotiation process and stricter guidelines to ensure fairness. Legitimate proposals can also be made for increased judicial oversight of plea deals to maintain public confidence in the justice system.

These debates are vital for the evolution of plea-bargaining practices and for ensuring they serve the interests of justice rather than convenience.