Plea Bargaining and You

Not all criminal cases are fought at trial. Some persons may have a trial and fight their case but a significant portion of the disposal of matters involve guilty pleas. One of the functions of defence attorneys, like those at the Public Defenders’ Department, is to advise and assist their clients in the process of pleading guilty and entering into plea discussions under the Criminal Procedure (Plea Discussion and Plea Agreement) Act 2017.

Before delving into the effect of the legislation let’s consider some hypothetical headlines that may from time to time appear in local daily newspapers: “MAN TO SERVE LESS THAN A DECADE FOR MURDER”, “MAN WALKS FREE FOR MURDER”. Such headlines may prompt members of the public to wonder in consternation; How is this possible? How can these persons seemingly “get off so easily”? Certainly, there is an expectation that the time should fit the crime but let’s take a closer look at how the criminal justice system practically operates, taking into consideration balancing the rights of the accused, proportionate punishment, reducing the criminal case backlog, all within the remit of operating under legislative authority. Let’s look at plea bargaining and how it operates in a Trinidad and Tobago context.

What is the Criminal Procedure (Plea Discussion and Plea Agreement) Act of 2017?

This Act allows a person accused of any crime, to approach the Office of the Director of Public Prosecutions (‘DPP’) and indicate a desire to enter into plea discussions to plead guilty to any offence which arises on the facts of a case. If permitted by the DPP, both the DPP’s office and the accused person or his Attorney-at-Law, have discussions on the nature of the plea and can include the severity of the sentence.

Why not the death penalty?

Let’s consider someone who is charged for murder. Not every murder involves cases of a killing in “cold blood”. Someone may be provoked leading to a loss of their self-control and reacting in a manner which resulted in the untimely death of the deceased. They could also be operating under a disease of the mind, and as a consequence they commit the murder. In those scenarios, the lesser offence of manslaughter may be appropriate. These scenarios are reflected in law through terms known as provocation and diminished responsibility.

In other cases, an accused person may not have been directly or intentionally responsible for the death but was participating in a plan to commit another serious offence and is charged for murder. In this scenario the “felony-murder rule” applies and the law provides a range of sentences for it, including imprisonment for any number of years (including life) or the death penalty in particularly heinous cases.

In any of those instances, the Attorney who represents the accused, acting on the accused person’s instructions can write to the DPP’s office, in accordance with the Act and indicate their client’s willingness to enter into plea discussions. Once received the DPP would consider the proposal before making a decision to either accept or reject it.

A non-exhaustive list of the factors the DPP may take into consideration include:

• Saving of the judicial system’s time, resources and taxpayers’ money;
• Preventing the victim and/or their families from having to testify and relive the horror of the crime so many years later;
• Rehabilitative programmes that the accused person engaged in whilst in prison.

Who has the final say in the plea agreement?

While a sentence can be agreed to by the DPP and accused person, or his Attorney-at-Law, this does not mean that it is automatically applicable. The Judge has the final say and considers if the agreement is in the interest of justice. Often times, the sentence is left to be determined by the Judge and is decided based on the usual principles of sentencing which also involves certain reductions that must be made in law in calculating the final sentence passed.

A person who pleads guilty is usually entitled to a reduction of up to 1/3 of his sentence. Further, any time the person has spent in prison awaiting trial is deducted. This recognizes an accused person’s willingness to take responsibility at an early stage and save court resources.

Why do the sentences seem so short?

Let’s consider an example where an accused person pleads guilty where the original charge was murder but it is then reduced to manslaughter based provocation. If both sides agree to a 30-year starting sentence based on case law, the accused may get 1/3 off of 30 for pleading guilty, which is 10 years (30 – 10 = 20). However, if he/she has already served 12 years awaiting a trial date, that is deducted and the 8 years remaining is what would result in the headline, “MAN TO SERVE LESS THAN A DECADE FOR COMMITTING MURDER”. This can be confusing since the individual has effectively served 12 years of the sentence already.

Therefore, what usually cannot fit into a headline is that due to the severe backlog in our justice system, by the time a person is sentenced they may have served most of that sentence, on remand awaiting the trial. A greater focus on early plea discussions is one way to reduce this backlog by allowing large numbers of cases to be completed without the need for a lengthy trial process. Plea bargaining also has significant benefits to society as a whole as is it brings swifter justice and closure to the victims of crime and thereby promotes confidence in our justice system.