PLEA AGREEMENT – Comparative Analysis
Abstract
Since 1980, plea bargaining has become an accepted and regular feature of life in the jurisdictions of all Western European countries, particularly in Germany and France. This is the case throughout all Western European states, with their very diverse and different modes of criminal procedure. Thus, it is fair to say that debates about plea bargaining have finally ceased in Western Europe. Everyone has accepted that plea bargaining does indeed exist in Europe and there are benefits to it.
Plea bargaining occurs around the world. It is a procedural revolution that began over the last 20 years. Plea bargaining occurs in a long list of countries with inquisitorial heritage, or common law heritage, or socialist justice heritage, spanning India, Russia, Italy and to Latin America. We see plea bargaining working successfully everywhere regardless of the country’s social and economic heritage. It is a universal development, and I disagree with commentators who refer to the American model of plea bargaining as the classical model. I disagree strongly with this assertion. In my own country, the model is very, very different – and I would even dare to say better than the American model. Throughout Europe, we also have many various models to choose from. Thus, I think it is wrong to look at the defects in the American system and to say they are systemic to plea bargaining on the whole. They are not. If a country faces a problem such as a victim’s non-participation, then you can simply include in the legislation, as do the Estonians, for example, a provision allowing the victim to play an active role in the plea bargaining. There are many models of plea bargaining and my major message in this paper is that we simply cannot afford to wait. We simply cannot afford to ignore plea bargaining due to increasing numbers of criminal cases and demands that we act accordingly. If we do not act accordingly, our criminal procedure will be downgraded to the point where serious injustice will occur. I think that it is no coincidence that the countries that originally developed plea bargaining were bastions of defending human rights.
My message is essentially that it is possible to organize a plea bargaining system without violating those principles. If you look, for example, at the European Court of Human Rights’ case-law, then you will realize that very little of it concerns cases arising from plea bargains. This has not proved a rights issue in either the United Kingdom or the United States, where the Supreme Court has repeatedly said that plea bargaining provisions do not violate the right to a fair trial and the presumption of innocence because you always have a right to a trial and you always have your presumption of innocence – only an individual properly advised who wishes to plead guilty can voluntarily decide to abandon these rights in pursuit of another interest.
