Plea bargaining within (a reformed) criminal justice system

Article 35(3) of the Constitution of Bangladesh enshrines that every person accused of criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. More often than not, due to various impediments, this article does not get implemented. The prime reasons behind such delay can be lengthy and corrupt investigation processes, outdated recording of evidence, mendacity in making police reports, overwhelming number of cases and last but not the least, long drawn trial processes. In this piece, I argue that to manage, if not eliminate the delay in administering and delivering justice, plea bargaining can potentially be a welcome addendum.

Plea bargaining may be defined as an agreement between the accused and the prosecution through which the accused gets a lesser sentence by admitting his or her guilt. According to the Black's Law Dictionary, plea bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposal of the case, subject to court approval.

When the investigation and prosecution processes are thorough and immaculate, plea bargaining will truly be effective. However, an accused who in fact committed the offence feels more likely to deny than admit guilt, since casting reasonable doubts on the prosecution's narratives are easier due to lack of evidence at the hands of the prosecution due to faulty investigation process.

This tool is now used in many countries in Europe, Americas, Australia, and South-East Asian Nations. Notably, in the United States, about 90% of criminal cases are disposed of on the basis of plea bargaining. In the context of Bangladesh, where the conviction rate on average is only 8-10%, plea bargaining can prove to be a useful tool. Section 345 of the Code of Criminal Procedure 1898 (CrPC) prescribes the provision for compoundable offences. However, this provision does not apply to serious offenses. We do have provisions in sections 243 and 265E of the CrPC for admission of truth of accusation before magistrate and plea of guilty before sessions judge respectively. However, in these stages the accused does not usually plead guilty being well conversant with the futility of pleading guilty. Our justice system does not provide the accused with any advantage in this regard. Even if an accused pleads guilty in trial, awarding lesser punishment within law still remains discretionary with the judges.

In general, the principal benefit of plea bargaining is receiving a lighter sentence for a less severe charge that might result from taking the case to trial and eventually losing. Another clear advantage of plea bargaining for defendants is the potential savings on lawyers' fees. This is particularly beneficial for the socoeconomically marginalised sections of the society who struggle to afford legal defense. The litigation process requires more time and effort to bring a case to trial, whereas plea bargaining resolves cases more expeditiously. The primary goal of this system is to expedite case resolution, ease the burden on courts, and reduce overcrowding in prisons. There are certain inherent flaws too. As plea bargaining is one kind of negotiation, an accused may possibly face pressure from other side. Another important consideration is the overall state of the criminal justice system within which we introduce plea bargaining. When the investigation and prosecution processes are thorough and immaculate, plea bargaining will truly be effective. However, an accused who in fact committed the offence feels more likely to deny than admit guilt, since casting reasonable doubts on the prosecution's narratives are easier due to lack of evidence at the hands of the prosecution due to faulty investigation process. In such situation, the government must play an active role in putting a system in place so that investigation officers or agencies cannot find any scope to manipulate the investigation process. Moreover, by improving the prosecution efficiency, plea bargaining can bring in success. Preliminarily, plea bargaining can be introduced for certain criminal and special laws and not for serious crimes, crimes against women and children and habitual offenders. Also, police or law enforcement agencies should be kept out of the process to keep it both fair and unbiased.

Pertinently, in India by Criminal Law (Amendment) Act 2005 provisions relating to plea bargaining were added in the Criminal Procedure Code by addition of new Chapter XXI-A of Code with restricted application. Standing at a crossroads, while we discuss multifarious reform agendas, it is crucial to ponder if plea bargaining can be introduced within our criminal justice system. Certainly, it alone cannot go a long way, as for India, plea bargaining is not optimistically contributing to the conviction rate. We need to bring in substantive reforms within our investigation and prosecution processes and within a reformed criminal justice space, plea bargaining, if introduced, will bring in the desired success.

The writer studies law at the University of Dhaka.