October 23, 2017

The Editor Speaks: Plea bargains

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The idea for this Editorial was given to me by local lawyer Peter Polack. Need I say more……

On Friday June 2nd 2017 The Plea Negotiations and Agreement Act, 2017, which provides for a system of plea bargaining for persons who commit crimes, was passed in the .

Minister of Foreign Affairs and Foreign Trade, Senator the Hon. Kamina Johnson Smith, in piloting the Bill, explained that it is intended to give accused persons the opportunity to offer a plea in exchange for a lighter sentence.

Senator Johnson Smith, who is also Leader of Government Business in the Senate, noted that the legislation will assist in the delivery of justice in a timely manner, and reduce the backlog of cases in the nation’s courts.

Minister of Justice, Hon. Delroy Chuck, said “Prosecutors must see negotiations with defence attorneys as a very important component to get rid of the vast majority of cases. At the moment, you have case management, and in that case management, the defence counsel for the accused can look at the file and if the case is overwhelming, it is almost incumbent on the defence attorney to persuade the accused (that) it is in his or her best interest to plead guilty,”

Minister Chuck said in the , 90 per cent of cases are dealt with using plea bargaining, and less than 10 per cent of the cases go to trial.

However, he noted that in Jamaica, less than 10 per cent of accused persons plead guilty.

“This has to change; the criminal justice system is overburdened. The backlog is such that the courts are bursting at the seams, and in many courts, every week, we can see they are at the point of collapsing,” he said.

The Minister noted that unless an alternative way is found to deal with the huge number of cases in the Parish Courts and Circuit Courts, “we will never be able to resolve and really settle these matters appropriately”.Mr. Chuck said the Plea Bargaining Bill is meant to tackle some of the cases within these courts. The prosecution and defence counsel and the plea judge will have to bear in mind that if you can get an accused person to plead guilty, it saves an enormous amount of time and resources, not only of the State, but of the judges…”

Does The Cayman Islands have a system in place to accept plea deals from persons accused of crimes? Whether it be traffic or criminal related? For example, if I am charged with DUI, can I plead guilty in exchange for community service to save everyone the time?

The above question was asked by a reader on the CNS website

Answer: Apparently there is no system in place here for plea-bargaining. Lawyer Peter Polack explained this is despite both criminal and defence attorneys, along with “sensible police”, advocating for such a system to be established.

He added, “This has worldwide implementation but our overworked director of public prosecutions and attorney general cannot find the time.”

Mr Polack has spoken about this issue previously, as well as suggested various steps that can be taken to reduce the backlog in the courts system and overcrowding in our prison.

He also pointed to the plea-bargain system that Jamaica introduced in 2005 as an example for Cayman to follow.

SOURCE: https://cnslocallife.com/2016/12/plea-bargains-accepted-cayman/

In a letter Polack wrote to the Cayman Reporter published March 24 2016 under the headline “Crime and how Caymanians are being kept out of the work force” he wrote:

The Problem

“10,000 or 20 per cent of the population has a criminal conviction
Grand Court had 118 pending cases in January 2015 with 23 of those cases from 2012
The Summary Courts deal with about 10,000 cases in a year. In 2004 there were 4,341 Summary Court cases and in 2008 it was around 9,678.
There are 582 warrants for arrest outstanding.
There are over 660 firearm license holders, many with multiple gun. There are nearly 2,000 guns, doubling in the last five years from 300.
Six firearms are missing or were stolen between 2012 and 2013. Only 20 per cent of firearm holders checked annually.
There are two licensed firearm holders with pending criminal charges: one in the Cayman Islands and one in a U.S. Territory.
70 to 80 per cent of the prison population for drug consumption
Several hundred people are on police bail
The Cayman Islands has one of world’s highest prison populations per capita.
Fifty pending court cases in the Cayman Islands have recently been stopped or stayed by the Summary Court as a result of prosecution and police failures to pursue them

The Solution

“Decriminalisation by changing minor offences such as possession of small amounts of ganja, consumption, minor traffic offences to be dealt with by administrative fines and ticket system.
Removal of minor and ancient offences from Penal Code and other laws.
Reduction of penalties for non-violent offences. There is no regarded empirical data that proves more severe sentences make less crime.
Amendment of the Rehabilitation of Offenders law. Presently a fine will take five years to expunge and up to six months will take seven years. This will make convicted persons more marketable in the work force.
Review of thousands of pending Summary Court cases to dismiss: aged cases, cases where prosecution is unlikely to succeed, minor cases, cases especially assault where both parties agree termination. To be done by panel of judge, prosecutor and lawyer.
Early release of non-violent offenders.
Introduction of a plea bargain system similar to Jamaica legislation introduced in 2005.
Termination of private ownership of firearms except police. Removal of multi gun ownership.600 firearm holders cannot hold 60,000 hostage.
Term limits for Director of Public Prosecutions and Attorney General.
Introduction of a Caymanian-only community service non-police unit with Caymanian lead community officer unit reporting to the Deputy Governor. Provides employment, provides employment for young persons at risk, give people a stake in community. This is an established service in the .”

END

There is no legislation in place in the UK for plea bargaining and that might be the reason why it hasn’t been done here. Judges do usually take into account when sentencing here if someone pleads ‘Guilty’

This is similar to what happens in the UK. but it is up to the Judge’s discretion. Plea bargaining occurs frequently in the UK to the charge. On the mumsnet website Kerri28 answers the question “lawyers: does plea bargaining happen in the UK? Thus:

“to a certain extent yes, but only to the charge, not the sentence. for example, if the defence say “i will plead guilty to manslaughter but not murder” (at the extreme) then the prosecution will consider their evidence and whether the sentence is likely to be that different and may then amend their charge. however once the new charge is put and the defence plead guilty, the sentencing is entirely the choice of the judiciary who sentence on the facts. The prosecution have no say in sentencing, and the judiciary should not take into account the fact that the charge has changed, they sentence solely on the charge before them. However, if the prosecution believe their original charge will stand because the quality of their evidence is overwhelming (for example) then they may decide to stick with the original charge. It all depends on the prosecutor, how the police have charged (they may have charged too high in the first place), quality of evidence, likelihood of conviction and likely sentence if found guilty…..does that make sense? (I can try again if not)

In the USA it is very different. Wikipedia states:

Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial.[1][2] They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001.[3] Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.[4]

The constitutionality of plea bargaining was established by Brady v. United States in 1970,[5] although the Supreme Court warned that plea incentives which were sufficiently large or coercive as to over-rule defendants’ abilities to act freely, or used in a manner giving rise to a significant number of innocent people pleading guilty, might be prohibited or lead to concerns over constitutionality.[6] Santobello v. New York added that when plea bargains are broken, legal remedies exist.[7]

Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away. The lack of compulsory prosecution also gives prosecutors greater discretion. And the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements also tends to encourage plea bargaining.[8] Prosecutors have been described as monopsonists.[9]

SOURCE: https://en.wikipedia.org/wiki/Plea_bargaining_in_the_United_States

Yes, Peter, plea bargaining makes perfect sense to me. Does it to you?

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Comments

  1. Would that mean that a member of Peter’s family wouldn’t have had to go to court, they could have just plea bargained out? (If we’re going to be name dropping in editorials.)

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  1. […] Source: Cayman Eye News The idea for this Editorial was given to me by local lawyer Peter Polack. Need I say more…… On Friday June 2nd 2017 The Plea Negotiations and Agreement Act, 2017, which provides for a system of plea bargaining for persons who commit crimes, was passed in the Jamaican Senate. Minister… Link: The Editor Speaks: Plea bargains […]

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