Plea-negotiations, prosecutors and discretion: An argument for legal reform
| DOI | 10.1177/0004865815589823 |
| Author | Asher Flynn |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(4) 564–582
Plea-negotiations, prosecutors
! The Author(s) 2015
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DOI: 10.1177/0004865815589823
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Asher Flynn
Criminology, School of Social Sciences, Monash University, Australia
Abstract
Unlike the cynicism and accountability concerns applied to the use of discretion by police and
judicial officers, prosecutorial discretion in plea-negotiations operates essentially free from exter-
nal scrutiny or transparency. Globally, there is a scarcity of data and research on plea-negotiations,
meaning we do not have the capacity to accurately measure their frequency, the contexts in
which agreements are reached or to identify patterns in the types of offenders/offences most
commonly involved. Additionally, in almost all Australian jurisdictions, plea-negotiations are not
recognised as a legitimate legal process in statute, despite empirical evidence from the legal
community suggesting their overtly encouraged and common use. Drawing from research in
which 51 Victorian prosecutors were observed engaging in plea-negotiation practices over several
months, and 54 interviews were conducted with prosecutors, defence counsel, judicial officers
and policy advisors, this article intends to reignite discussions of the nontransparency of plea-
negotiations in Australia, including highlighting the need for increased criminological research in
this underexamined field. The article contends that all Australian jurisdictions should define plea-
negotiations in legislation and record data on how often plea-negotiations occur, similarly to the
current process of recording guilty pleas. Without such reform, plea-negotiations will remain
nontransparent and misunderstood, as there will be no adequate mechanism to understand or
examine how negotiations operate in practice or what their true impacts might be.
Keywords
Accountability, discretion, guilty pleas, plea-negotiations, prosecutor, transparency
Introduction
There is a real desirability in the public and victims and the accused being properly informed
about plea-bargaining. . . The Office [of Public Prosecutions] needs to sell what they do a
little bit better. People need to understand what goes on behind the scenes. They don’t have
a clue. . . People don’t have a realistic view of what the negotiations are about. The only way
Corresponding author:
Asher Flynn, Criminology, School of Social Sciences, Monash University, Wellington Road, Clayton, Victoria 3800,
Australia.
Email: asher.flynn@monash.edu
Flynn
565
to address that is to give them more information; to put plea-bargaining out in the open;
make it more transparent; and make us more accountable to the public. (ProsecutorK)
Across all common law jurisdictions, the most frequent method of case finalisation is
through a defendant pleading guilty. Commonly, these pleas arise following negotiations
between the prosecution and defence; a process often referred to as ‘plea-bargaining’.
In Australia, this term is strongly rejected by the legal community, given the negative
connotation of a bargain (trade) in the justice setting, outside the scrutiny and rules
applied at trial. Instead, the ‘early and appropriate resolution of cases’ or ‘plea-negotia-
tions’ are the preferred terms; the latter will be used throughout this article.
Plea-negotiations can occur any time before a trial concludes. The agreements
reached may include the prosecution: reducing the seriousness of charges; withdrawing
charges; omitting or altering facts from the agreed summary (the basis from which the
defendant is sentenced); and/or reducing the offence jurisdiction (e.g. from indictable to
summary). Agreements may also include not proceeding with charges against another
person, or requiring the defendant to become a prosecution witness. The process oper-
ates similarly in most jurisdictions, but a key difference in Australia is that prosecutors
cannot agree to specific punishments. Instead, they can agree to present case facts to fit a
particular sentence range, based on standard sentencing practices and outcomes, and/or
recommend a sentence type (e.g. custodial or non-custodial) to the court. Such recom-
mendations are not binding, but generally influential.
Very limited data exists on plea-negotiations. In the US, where some data are avail-
able, 97% of federal charges proceeding to adjudication in 2012–2013 resolved by plea-
negotiation, leaving 3% of felony cases proceeding to trial (Rakoff, 2014). Whilst
comparable statistics for individual states are not available, Rakoff (2014) claims it is
‘a rare state where plea-bargains do not similarly account for the resolution of at least
95% of felony cases’. In Australia, no official data are kept outlining when plea-negotia-
tions occur, and in almost all jurisdictions, plea-negotiations are not defined in legisla-
tion. Instead, they operate according to internal prosecution policies and practices, away
from the visibility and scrutiny of the court, and public.
Plea-negotiations and the courtroom workgroups facilitating them have been (spar-
ingly) examined in US, UK and Canadian research since the 1960s. Common analyses
have included: procedural elements, such as the content of agreements, who is involved,
when it occurs (Buckle & Buckle, 1977; Pizzi, 1999); their purpose (Alschuler, 1995;
Goldstein, 1981; Walker, 1993); the role of sentence discounts in facilitating guilty pleas
(Baldwin & McConville, 1977; Cohen & Doob, 1989); and how plea-negotiations moder-
ate court delays (Chalmers, Duff, Leverick, & Melvin, 2007; Fitzgerald, 1990; Samuel &
Clark, 2003). A number of important studies have also examined prosecutors’ discretion-
ary charging powers in plea-negotiations, and possible legal reforms, including the aboli-
tion of plea-negotiations in certain contexts and the use of early resolution focused pretrial
hearings (Atkins & Pogrebin, 1982; Blumberg, 1967; Heumann & Loftin, 1995; Kerstetter
& Heinz, 1979; McDonald, 1985; Stenning, 2010; Worrall, Ross & McCord, 2006). In
Australia, however, plea-negotiations and prosecutorial discretion are manifestly under-
examined topics, except for a handful of sociolegal studies (Bishop, 1989; Flynn 2012;
Freiberg & Seifman, 2001; Johns, 2002; Mack & Roach Anleu, 1995). This has left a
significant gap in criminological understanding of plea-negotiations and the role of
566
Australian & New Zealand Journal of Criminology 49(4)
prosecutorial discretion in this setting. Furthermore, little is known about the pressures
prosecutors and defendants may face to accept plea-agreements, and what the implications
of plea-negotiations are for vulnerable people coming before the courts.
This article seeks to fill critical gaps in the literature. Using data collected from
observations of 51 Victorian prosecutors engaging in plea-negotiation practices over
several months, and 54 semi-structured interviews conducted with prosecutors, defence
counsel, judicial officers and policy advisors, it intends to reignite discussion of the
nontransparency of plea-negotiations in Australia, including highlighting the need for
more empirical, criminological research in this area.
In 1985, the Victorian Shorter Trials Committee (p. 143) recommended that ‘because
[plea-negotiations] are not conducted in court and are not, therefore, open to public
scrutiny, it is extremely important that they be conducted in such a way that the com-
munity can be satisfied that the public interest is being properly served’. If transparency
is defined in line with the courts’ view, whereby it is coupled with open, reasoned deci-
sion making and clear, understandable processes (Victorian County Court, 2015;
Victorian Supreme Court, 2013), then 30 years following this recommendation, an
absence of transparency continues to surround prosecutorial discretion and plea-nego-
tiations in Australia. A partial exception to this operates in New South Wales (NSW),
where ‘charge-negotiations’ are defined in legislation, and judicial oversight of the agreed
summary of facts devised as part of the plea-negotiation is required.
This article contends that the importance of public confidence and transparency in the
delivery of justice provides a strong basis to advocate for greater external transparency
of plea-negotiations. This is especially so in light of shifts towards more punitive policies
that restrict judicial discretion, whilst simultaneously enhancing prosecutors’ discretion-
ary charging powers; a concern intensified by the efficiency pressures prosecutors face to
swiftly obtain convictions and reduce court backlog. Increased transparency and public
understanding of plea-negotiations are also vital given ongoing restrictions to govern-
ment-funded legal services, which have resulted in high numbers of defendants being left
to navigate complex legal processes alone (Flynn, Freiberg, McCulloch, & Naylor,
2015). The potential for plea-negotiations to pressure vulnerable people into pleading
guilty also provides justification for acknowledging plea-negotiations as a legitimate
legal process in statute and maintaining data on its occurrence. This is because such
data would increase access to meaningful information about plea-negotiations, thus
facilitating opportunities to interrogate the operation of the process in practice.
As part of their role, prosecutors must be empowered to make decisions in the public...
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