The condemnation of plea bargain as an inappropriate legal process that should be abolished as espoused recently by the Chief Justice of Nigeria, Justice Dahiru Musdapher, brings to the fore the importance of balancing efficiency, gains against benefits of a trial. Musdapher, whose address was read on his behalf by Justice Sylvester Igbuta at the opening ceremony of the fifth Annual General Conference of the Section on Legal Practice of the Nigeria Bar Association in Abuja on November 15, 2011, was convinced that a plea bargain regime provided a soft landing to high profile criminals, and, as a result, the process should never again be mentioned in our jurisprudence.In the first place, the term plea bargain means an agreement by the defendants to plead guilty in return for the promise of some benefits, including a reduction in the charge, a withdrawal of charges altogether, a promise not to proceed with other charges and a recommendation as to the type of sentence to be expected (e.g. fine or imprisonment). Given the attitude of exuberant and corrupt Nigerians who regularly go to the courts to obtain injunctions (interim or final) in order to restrain the Economic and Financial Crimes Commission and other anti-graft agencies from performing their statutory responsibilities, it comes as no surprise that Musdapher perceived plea bargain as a very negative feature of the judicial system. After all, corruption, in the words of the late prominent Nigerian human rights activist, Chief Gani Fawehinmi, is one single, fundamental factor that has retarded the progress of the nation and its socio-economic development.Indeed, in a case involving allegation of corruption under which some benefits flow to the defendant in exchange for co-operation and/or admission of guilt, one might call into question the use of plea bargain, inasmuch as it disrupts the putative laws conventional institution of fairness and transparency in the conduct of justice; and more so, because it bypasses the traditional legal regulations in the ascertainment of culpability of the defendant. Alongside these issues, however, there is also an argument in jurisprudence whether or not the phenomenon of plea bargain involves over-charging in order to induce pleas to lesser offences; suppression by the prosecution and defence of material facts in representations made to the court; inducement of guilty pleas from innocent individuals; solicitation of guilty pleas by means of attractive inducements, especially where the prospects of conviction could not be established based on available evidence; and an increase in the overall levels of deterrence.Yet, in spite of the above highlighted concerns about the plea bargain scheme, it is beyond dispute, however, that in order to make the best use of scarce resources, this scheme can serve as an efficient programme for disposing large criminal caseloads. In other words, in the face of mounting pressure of criminal caseloads, plea bargaining provides a strong incentive to cut deals with defendants so as to focus attention on how best to restore offenders to the community as more productive citizens, employees and breadwinners to their families. A comparative study of several jurisdictions, including Anglo-American and Continental European criminal procedures, and adjudicative processes of international tribunals, shows that plea bargain offers some benefits, not only to the governments, cooperating defendants, the judicial systems, but also to the public at large. Similarly, research also suggests that plea bargaining remains one ubiquitous practice in almost all jurisdictions around the world where it is seen, in the words of the Chief Justice Burger of the United States Supreme Court in Santobello v New York, 404 US 257, at 260 (1971), as an essential component of the administration of justice. Even in the Japanese legal system where the practice is formally illegal, it has been shown that its prohibition is in functional rather than formal terms. For, the Japanese law still allows summary procedures for certain cases and uncontested trials which, in a bargaining-style, have a consequential effect of lessening the burden on the prosecution.As a reform-minded legal academic, it is clear to me that, rather than consider the plea bargain scheme as a failure of principle or call for it to be scrapped, I think the scheme ought to remain a feature of our judicial system; not the least as a discretionary legal process to enhance administrative efficiency and deterrence too, while maintaining transparency. I do understand that plea bargaining carries with it a negative connotation; for, its process implies that full trial can be circumvented by permitting the dropping of some or all of the charges against the defendant, thereby making the courts proceedings reflect not the harm and culpability of the defendants conduct, but the outcome of the negotiations. It is instructive that the Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Adoke (SAN), was quick to emphasise the practical utility of plea bargaining. In his address, read on his behalf by Chief Deji Adekunle, SAN, who represented him at the same conference, he noted, The intricate patterns of high-level criminal conspiracy and Internet fraud seem to have confounded even our best investigators. Are we really prepared to combat delays and case trappings in the judicial system' I think the answer is probably NO.Based on this answer, one is reminded of the view of Fletcher and Weinstein, in Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation (2002), that, an approach that does not integrate trials withother capacity-building measures is insufficient to attend to social repair. On this view, it means that striking a balance is essential in achieving a desirable justice. Pressing prosecutions to the point of playing down other competing interests is, effectively, an argument for separating administrative necessity from criminal liability. William Stuntz, in A Reply: Imperfect Bargains, Imperfect Trials and Innocent Defendants (1992), argues, Abolishing plea bargain altogether might spread the loss a bit by forcing more (and more casual) trials. But the loss would still be more concentrated, and hence more substantial ... In short, we inhabit a world where bargaining is imperfect, trials are imperfect and resources are limited. The hard but important task for legal doctrine is how to manage the necessary trade-offs. (pp. 2013-2014)An important implication of Stuntzs argument is that, on the one hand, plea bargain as a time saving administrative necessity, and accountability of defendant in a public trial, on the other, are both inextricably intertwined with the administration of justice. That is to say, more thought and consideration should be given to the balancing of the efficient administration of justice against the uncertainty about the trial outcome and penalties. Of course, this suggestion does not indicate that plea bargain should be allowed to permeate the entire criminal process without any proper constitutional means of limiting or counteracting its wrongful use. Rather, the submission will be that, while the plea bargain scheme has been shown to have practical utility, its process must be aided by a regulatory agency that is capable of integrating investigatory and prosecutorial functions in order to supervise its operation. In addition, the scheme must also be open and accountable, and the defendant too must, at all times, be required to append a signed document first detailing the facts underlying the original charges before plea agreements are reached. Above all, to safeguard the public interest, the judge too must retain ultimate discretion to impose a sentence, regardless of any agreement entered into between the prosecution and defence under this scheme.- Dr. Ajetunmobi, a lecturer in Law at the University of Portsmouth, United Kingdom, wrote in via abdulsalam.ajetunmobi@port.ac.uk
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