The mischief of plea bargaining and sentencing rewards

The mischief of plea bargaining and sentencing rewards

Introduction

Most common law jurisdictions award discounts back for guilty pleas. In England and Wales, discounted sentencing in exchange for guilty pleas is incorporated by Section 48 of the Criminal Justice Public Order Act 1994. The conditions for sentencing discounts in exchange for a guilty plea are now contained in Section 144 of the Criminal Justice Act 2003.

There are a number of arguments in favour of adopting this practice, primarily the belief that a guilty plea demonstrates cooperation, responsibility and accountability. In addition, a guilty plea saves the court time and the public money. However, arguments against discounts in sentencing for guilty pleas typically challenge the utility of taking account of post-offence conduct. It is typically argued that it is the defendant's conduct at the time of the offence that should influence the sentence he or she receives. Other arguments against sentencing discounts include the dangers of innocent defendant's pleading guilty out of fear that he or she might be convicted at trial and receive the maximum penalty. It has also been argued, that the practice of permitting a reduced sentence in exchange for a guilty plea is an inducement which is essentially a violation of procedural justice.

This paper provides a critical analysis of arguments for and against sentencing discounts in exchange for a guilty plea. After weighing both sides of the argument, this research study agrees that the practice of awarding a reduction in sentencing when a defendant enters a guilty plea should be retained. This paper is divided into three parts. The first part of this paper provides an overview of the practice of sentencing discounting when a defendant pleads guilty. The second part of this paper examines the arguments in favour of sentencing discounts where a defendant pleads guilty and the final part of this paper examines the arguments against this practice.

Overview: Sentence Reductions in Exchange for a Guilty Plea

Leverick defines sentence discounting as:

...the practice whereby, in the event of a guilty plea, an offender receives a lesser sentence than he or she would otherwise have done.

Sentence discounting practices differs from one jurisdiction to another. However, a common theme in practice is the fact that a number of factors influence the magnitude of the discount. Some of the most common factors are the time when the guilty plea is entered and the “extent to which the plea spared vulnerable witnesses” the necessity of having to testify.

In England and Wales, defendants who plead guilty early on can expect a sentence discount of up to 30 per cent. However, defendants who plead guilty at the start of the trial can expect to receive a smaller discount. The usual discount for a guilty plea at the beginning of a trial is no more than 10 per cent. It would therefore appear that the sentencing discounts practice operates as a reward for pleading guilty and foregoing formal adjudication. Although no actual negotiation of sentence is conducted ...