There is no doubt that plea bargains are crucial to the administration of justice. Few criminals commit crimes with the intention of being caught. On the contrary, they do so to gain from their criminal activities and escape punishment. Moreover, in modern times, crimes are committed with such sophistication that traditional methods of policing and investigation are failing to prevent them or gather sufficient evidence to secure convictions.
One, therefore, has to accept the saying: ‘It takes a thief to catch a thief’. It is legitimate for the State to use a co-accused or co-suspect as a witness against an accomplice because this is an important means by which crime can be effectively combated. Without accepting this practice, most crimes would not be solved and the perpetrators not held accountable.
The commission of criminal offences entails different levels of blameworthiness. Some are masterminds; others put the criminal blueprint into action or aid and abet the commission of the offence. Plea bargaining makes it possible for those who played a reduced role in the crime to be given reduced sentences or exempted from responsibility in exchange for full disclosure and a commitment to cooperating with the State to bring the masterminds of the crime to book. The idea is that without holding the criminal masterminds accountable, the prosecution of the foot solders might not make any meaningful impact on crime reduction.
Plea bargains also contribute to the efficient administration of justice in that a timely plea of guilt avoids lengthy trials, thereby allowing the courts and the State to focus their resources on other matters.
However, the plea bargaining process is prone to abuse. Accused persons can implicate innocent individuals as an incentive for a lenient sentence or exemption from criminal liability. The prosecutors or investigators can exert undue pressure on an accused to plead guilty out of fear even when he or she is actually innocent. Accused persons who are in pre-trial detention are particularly likely to enter into an agreement in the hope of getting a lighter sentence.
Plea bargaining also creates a perception that there is a penalty–in the form of a higher sentence–for pleading not guilty and opting for a full trial rather than a plea agreement. It can also induce in the State a habit of opting for pleas on lesser charges as a convenient way of securing convictions instead of investigating cases fully and proving them in court.
What we have said above shows that plea bargaining is an important device of combating crime, but it can have potentially damaging consequences. For its virtues to be realised, the room for abuse has to be closed. Essentially, one has to balance the broader societal concern for the administration of criminal justice against the possibility of infringing individual rights. This is something that requires Parliament to address, and not a delegated legislative authority.
Thus far, the law and practice has accepted the fact that plea bargains are important. What remains is the elaboration of the regulatory framework for their administration in a way that benefits all the parties involved—the State, the accused, victims of crime and the courts—and does not result in the violations of the rights of any person.
South African law permits plea bargains, including agreements on sentence. The law requires that the agreement may be made only before trial starts. The prosecutor must be authorised in writing to enter into plea discussions and the accused must be legally represented. In addition, victims of crime have a right to participate in the proceedings, including the right to comment on the contents of the agreement.
Judicial officers are not involved in the plea bargaining process, but they have to be satisfied that the accused made the plea voluntarily before they endorse it. When considering the sentence agreement, the court must also be satisfied that the sentence proposed is just in the circumstances. If it is found to be unjust, the parties may withdraw from the agreement or proceed to a sentence hearing.
The law in South Africa also allows the prosecution to grant immunity from prosecution to accused persons who give satisfactory evidence, including potentially self-incriminating evidence, on behalf of the state against a co-accused. The case against the accused will be withdrawn at the conclusion of the case only if the court is satisfied that the evidence given is frank and honest.
Malawi has to enact these kinds of principles if the administration of plea bargains is to serve a proper role in criminal justice and to ensure that they do not undermine the rights of the accused, the rights of those implicated by co-accused persons and the interests of victims of crime.n