Конференция Иркутск, 22 марта 2013 г



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Plea Bargain: History, Problems and Implementation
Many criminal cases are resolved out of courts by having both sides’ agreement named a plea bargain. This legal institute appeared first in Britain in the Middle Ages and was named “the appeal of repentant”. At that time, it meant that the defendant could avoid death if he would help uncover other crimes by other people.

The modern understanding of the plea bargain arose in the United States of America around the end of the 19 century and then it has spread to other countries like England and Wales, India, Italy, France, Estonia, Israel and Georgia. But the plea bargain was a prosecutorial tool used only episodically, because judges not prosecutors controlled most sentencing. So this bargain was limited to those cases in which prosecutors could unilaterally dictate a defendant’s sentence. And with the gradually extending of the authority of prosecutors the using of the plea bargain was used more and moreth.

There are many definitions of the plea bargain in legal dictionaries. For example, a plea bargain is the process whereby a criminal defendant and prosecutor reach mutually satisfactory disposition of a criminal case subject to court approval803. And Nolo’s Plain – English Law Dictionary describes the plea bargain as a negotiation between the defense, prosecution, and the judge that settles a criminal case short of trial, when the defendant typically pleads guilty to a lesser crime or fewer charges than originally charged, in exchange for a guaranteed sentence that is shorter than what the defendant would face if convicted at trial and the prosecution gets the certainty of a conviction and a known sentence; the defendant avoids the risk of a higher sentence; and the judge gets to move on to other cases804.

In American federal courts, for example, plea bargaining is authorized by subsection of Rule 11 of the Federal Rules of Criminal Procedure. Under this rule a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend to the court a particular sentence or agree not to oppose the defendant's request for a particular sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. Under this rule, plea bargaining must take place before trial unless the parties show good cause for the delay805.

There is a big question why many criminal prosecutions in the USA end not with jury trials but with plea bargains. The plea bargain is prevalent for many reasons: 1) defendant can avoid the time and cost of defending themselves at trial, the risk of harsher punishment and the publicity a trial could involve; 2) the prosecution saves the time and expense of a lengthy trial; 3) both sides are spared the uncertainly of going to trial; 4) the court system is saved the burden of conducting a trial on every crime charged806.

It also can be explained that because of the overburdened criminal justice system, the vast majority of criminal cases are settled through a process known as plea bargaining. In a plea bargain agreement the defendant agrees to plead guilty rather than proceeding to a jury trial807.

It is important to say that this legal institute has a lot of supporters, who explain their positions by the significant promoting for the revealing the most complex сrimes like collective crimes and ardent opponents, whose points are the historical experience of Britain in the Middle Age, when the institute of “the appeal of repentant” ceased to exist and that an opportunity to get lower punishment instead an crimination other people is an opportunity to avoid conviction and punishment an innocent person.

The plea bargains are often beneficial for both the prosecutor and the defendant. But in many cases an innocent person may be pressured into the agreement, and made to feel as if negotiating with the prosecutor is his or her best option808.

Plea bargaining is widely used in the criminal justice system. Plea agreements are troublesome because they are something less than a victory for all involved. Prosecutors are loath to offer admitted criminals lighter sentences than those authorized by law. Likewise, most criminal defendants are less than enthusiastic over the prospect of openly admitting criminal behavior without the benefit of a trial.

Some critics of plea bargaining argue that the process is unfair to criminal defendants. These critics claim that prosecutors possess too much discretion in choosing the charges that a criminal defendant may face. When a defendant is arrested, prosecutors have the authority to level any charge if they possess enough facts to support a reasonable belief that the defendant committed the offense. This standard is called Probable Cause, and it is a lower standard than ability to prove a charge Beyond a Reasonable Doubt, the standard that the prosecution must meet at trial. Thus, for leverage, a prosecutor may tack on similar, more serious charges without believing that the charges can be proved beyond a reasonable doubt at trial809.

Despite the reservations of the parties, plea agreements resolve roughly nine out of every ten criminal cases. Almost 90 percent of convictions occur when the defendant waives the right to trial and pleads guilty. And most of those pleas involve a deal that reduces punishment.

Defenders of American-style plea bargaining point out that its utility is proved by other countries' increasingly explicit adoption of the U.S. model. Once forbidden in most of Europe and technically banned in Japan, plea bargaining has steadily crept into many countries' systems during the past generation. And they add that the efficiency gained by plea bargains outweighs their evils.

But when the accused accept a deal he will lose his chance of acquittal, but he will also lose the risk of going to the chair. Such bargains are widely criticized as a way of letting criminals off lightly. Their actual effect may well be the opposite – to make punishment more, not less, severe. A rational criminal will accept a plea bargain only if doing so makes him better off – produces, on average, a less severe punishment than going to trial. But there are some doubts that the existence of plea bargaining must make punishment less severe810.

Despite our legal system’s tendency to encourage plea bargains, federal and state laws prevent their use in certain cases. Federal Sentencing Guidelines, for example, limit the types of charges that can be reduced during plea bargaining, while many states have laws prohibiting them in cases where the defendant harmed another individual – such as murder, sex crimes, and driving under the influence of alcohol or drugs811.

But just one thing is definite that the institute of the plea bargain is very conflicting. There are a lot of supporters and opponents who have their own opinions why it is or is not useful for judicial system or the whole society. There is a number of problems connecting with the realizations and abuse of the plea bargain. And it is clear that it is necessary to change the system of the plea bargain to prevent the abuse of this right.

Nowadays the institute and problems connected with it are important for our country too. Few years ago we did not have such institute but now we have. So there are some problems with realizations in Russia too, because we do not have a good and debugged mechanism of using the plea bargain.

In any way, the right to conclude a plea bargain arrangement is a constitutional right according to the Supreme Court of the USA and it must be guaranteed and protected.



Каталог: Fmt6qU01 -> 2013
Fmt6qU01 -> Программа учебной дисциплины Направление подготовки: 030900 Юриспруденция Профиль подготовки: прокурорская деятельность
Fmt6qU01 -> Программа учебной дисциплины Направление подготовки: 030900 Юриспруденция Профиль подготовки: прокурорская деятельность
Fmt6qU01 -> Учебное пособие для бакалавриата Часть I теория государства санкт-Петербург 2016 АкадемиЯ
Fmt6qU01 -> В правотворческой деятельности
Fmt6qU01 -> Издается с 2008 года Санкт-Петербургским юридическим институтом (филиалом)
2013 -> А. В. Юрковский Конституционализм и политические
Fmt6qU01 -> Федчин Владимир Сергеевич зав кафедрой культурологии и управления социальными процессами Института социальных наук игу, доктор философских наук, профессор ф 54 Социология : рабочая программа
2013 -> И. Н. Лопушанский социология политология конспект


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