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The Unconstitutionality of Plea Bargaining in the Indian Framework: The Vitiation of the Voluntariness Assumption
The concept of plea bargaining has been embroiled in controversy from its introduction in the international -
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jurisprudence. With the introduction of the same in the Indian scenario, several specific doubts arise. Arthad Kurlekar and Sanika Gokhale justify the abolitionist view by highlighting the multiple coercive forces which vitiate voluntariness, thereby violating the fundamental premise of its constitutionality. |
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1. INTRODUCTION
Plea bargaining as a concept has been present in the Indian legal system for a considerable amount of time. It is generally understood as negotiations that take place between the prosecution and defendant prior to the trial, which often lead to modifications in the defendant’s sentence. There are several types of plea bargaining namely, charge bargaining, sentence bargaining and concessions based on testimony in another case. In charge bargaining, the defendant agrees to plead guilty to a specific charge and in return the plaintiff promises to drop the other charges while in sentence bargaining, the sentence is reduced to a pre-decided term. In the third category, concession in charge or sentence is offered to the accused, in exchange of testimony of the accused in another matter. The paper collectively refers to all the categories as plea bargaining.
The traditional view on plea bargaining was the subversion of justice. On several occasions the Supreme Court has held that it would violate the public policy of the India. At one occasion, the Court stated that “(plea bargains) please everyone except the distant victim, the silent society”. On another occasion, the court has challenged the morality of plea bargaining, on the ground that it pollutes the pure front of justice.
1. It was introduced by virtue of an amendment to the Code of Criminal Procedure in 2005.
2. Sonam Kathuria, The Bargain Has Been Struck: A Case of Plea Bargaining in India, 19(2) Student Bar Review 55, 56 (2007), available at http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf, last seen on 11/02/2014.
3. Moise Berger, The Case Against Plea Bargaining, 62 American Bar Association Journal, 619, 621 (1976).
4. See Kachhia Patel Shantilal Koderlal v. State of Gujarat, 1980 CriLJ 553, 556; Kripal Singh v. State of Haryana, (1999) 3 CALLT 89, 90.
5. M M Loya v. State of Maharashtra, 1976 FAC 38.
6. Kachhia Patel Shantilal Koderlal v. State of Gujarat, 1980 CriLJ 553, 554.
The Criminal Law (Amendment) Act, 2005, which came into effect on July 5, 2006 brought a sea change to this idea of plea bargaining. It inserted Chapter XXI A into the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) which introduced plea bargaining in the Indian legal scenario. Plea bargaining is allowed under this chapter in cases where the prescribed maximum punishment is below 7 years and the crime is not committed against a woman or a child below the age of fourteen years. The legislature has intended the provisions to be a reflection of the suggestions given in the 142nd and 154th Law Commission Reports and the Malimath Committee Report. After its introduction the Court has taken a more lenient approach to plea bargaining while recognizing it as a tool to curb the pending litigation in the courts. It justified the grounds for its constitutionality based on the mechanisms given in Chapter XXI A of the CrPC.
The inherent assumption behind upholding plea bargaining as a constitutional mechanism is that it is considered as a voluntary practice. Mechanisms are put in place to ensure that the deal offered to the accused is accepted with free consent. For a valid plea bargaining, awareness of the direct consequence of pleading guilty and the benefits offered by the prosecutor must be present, in addition to absence of inducement, harassment or misrepresentation.
The Indian legislature hopes to establish voluntariness by virtue of § 265B which provides for a signed affidavit professing the guilt followed by an in-camera proceedings for the accused in the absence of the opposing party. The affidavit submitted by the accused serves as a first confirmation that prima facie there is no inducement to the accused. The in-camera proceedings are designed to give an opportunity to the accused to make the judge aware of any inducement he/she has suffered. In addition, it affords the judge an opportunity to ensure that the accused is aware of the concessions the prosecutor has afforded. This is designed to avoid force used on the accused.
In the following sections, the authors demonstrate cases which fall under hard or soft coercion and prove that no case can fall under the free will category. In any case, owing to the fact that considerable number of cases fall under the two categories of coercion, is evidence enough of its unconstitutionality. The paper concerns with the conceptual critique of
7. S. 265 A, The Code of Criminal Procedure, 1973.
8. See State of Gujarat v. Natwar Harchandji Thakor, 2005 CriLJ 2957, 2959.
9. Brady v. U.S, 397 U.S. 742 (1970). In this case, Judge Tuttle established the test of voluntariness for American courts.
the process in the Indian context, not through the eyes of public policy or subversion of justice, but from the perspective of the accused.
II. UNCONSTITUTIONALITY DUE TO MULTIPLE FORMS OF COERCION IN PLEA BARGAINING
On a scale, the authors seek to classify coercion which may occur in cases of plea bargaining into three categories. In descending order, coercion by force, hard coercion, soft coercion, as distinct from a situation of free consent. Even in the Indian scenario there are sufficient measures to deal with coercion by force in plea bargains. The legal affidavit to be filed by the accused followed by an in-camera proceeding ensure that the accused is not forced into accepting an unfavourable bargain.
However, not all circumstances can be classified into the categories of force and free consent. There are other inducements which the accused faces in criminal trials. The authors distinguish these ‘other inducements’ in two forms: cases of hard coercion and of soft coercion. The authors submit that plea bargaining inherently assumes one of the two types of coercive forces. In order to establish this, the authors differentiate these situations from that of free consent, to demonstrate that in no circumstance can plea bargaining occur on the basis of free consent of the accused.
The adequacy of the test as envisaged in the CrPC is highly doubtful as coercion is not restricted to decisions taken under the threat of brute force. The authors argue that there are various kinds of coercive forces acting on the accused during such negotiation which contravene the assumption of voluntariness. It is argued that plea bargaining inherently is coercive in nature and any offer to any accused can be qualified under one of the categories of coercion. Broadly, these categories include two categories, namely, hard and soft coercion, apart from the blatantly apparent concept of force. Soft coercion refers to manipulation of the defendant in such a manner that he is goaded to take a decision which he normally would not have. Hard coercion is an aggravated version of its soft counterpart as it involves inducements which a rational person would certainly not reject under normal circumstances.
A. Concept of Hard Coercion as Systemic Inducement
10. Supra 7.
11. Conrad G. Brunk, The Problem of Voluntariness and Coercion in the Negotiated Plea, 13 Law & Society Review, 527, 533 (1979).
12. Ibid.
The most common argument against plea bargaining is the violation of the right against self-incrimination which has been attempted unsuccessfully in the U.S. Courts on several occasions. It is well established that plea bargaining requires the defendant to waive the right against self-incrimination. However, the U.S. Courts have hesitated to hold plea bargaining illegal for that reason. The Courts have held that the voluntariness of the process sets off the waiver of rights and that it is free will of the person which governs the bargain. However, the exertion of pressure on the accused to plead guilty in a plea bargain is a fact admitted by the US Supreme Court.
In the Indian context, the outcome would be considerably different. Crucially, the difference is that in India, the right against self-incrimination cannot be waived as it is a fundamental right. In this light, whether plea bargaining violates the right to self-incrimination in the Indian context becomes an important question. Article 20(3) also provides protection for the defendant in cases where there is mental harassment of the accused to incriminate himself or herself. It is not uncommon for a defendant to waive his trial rights when faced with the apprehension of a severe punishment. The imposition of these difficult choices is inevitable in plea bargaining. With this premise, in the Indian context, plea bargaining makes a case for hard coercion and therefore must be considered as violating the fundamental right of the accused under Article 20(3). The only justification of the inapplicability of Article 20(3) is the fact that plea bargaining is argued to be voluntary and undertaken in an exercise of free will by the accused.
The authors argue that in contrast to soft coercion, cases of hard coercion are more systemic. The premises of plea bargaining, which include, inducement through attractive concessions to plead guilty are inherently coercive. The forces compel the accused to take into consideration the duration of the court processes or sentence comparisons. An illustration of hard coercion has been recorded in the case of North Carolina v. Alford, where the accused charged with murder and potentially facing death penalty, famously said “I am not guilty, yet I plead guilty”. One is left wondering why such an outcome would arise and whether plea
13. See United States v. Mezzanatto, 513 U.S. 196 (1995); Alabama v. Smith, 490 U.S. 794 (1989); United States v. Goodwin, 457 U.S. 368 (1982); Brady v United States 397 U.S. 742 (1970).
14. Tina Wan, The Unnecessary Evil of Plea Bargaining, An Unconstitutional Conditions Problem and a Not-So Least Alternative, 17 Review of Law and Social Justice, 34, 37 (2007).
15. United States v. Mezzanatto, 513 U.S. 196, 209-10 (1995).
16. Basheshar Nath v. Commissioner, AIR 1959 SC 149.
17. Koustav Sen, Custodial Torture: A Preventive Framework, 12 Central India Quarterly, 334, 337 (1999).
18. Chaffin v. Stynchcombe, 412 U.S. 17 (1973).
19. North Carolina v. Alford, 400 U.S. 25 (1970).
bargaining truly is a viable option. Such absurd situations arise due to hard coercive forces which play a role in plea bargains.
It is a well-known fact that criminal trials take inordinate time due to pendency of cases. One of the listed advantages of plea bargaining is that it cuts down the time required for a trial. But such an advantage comes at a cost. The Supreme Court of India has stated that an innocent person may, owing to the arduous nature of the criminal trial, falsely accept guilt. An accused charged under § 304, no doubt, would opt for a plea bargain which offered him time already served plus a five thousand rupees fine, instead of a trial going up to several years and a likelihood of life imprisonment. An option in such a case is a mere formality. The prosecutor can in the highest likelihood predict that the accused would enter a plea of guilty and thus it forms a case of hard coercion.
In this regard, recently, the Supreme Court of Arkansas had to deal with a peculiar situation in the West Memphis Three case. Three teenagers were convicted in 1994 of the murder of a boy. In 2007, citing new forensic evidence the case was re-opened. The DNA on the murder weapon did not match any of the three convicted. It matched the step-father of the murdered boy. In addition, the teeth marks on the head of the victim did not match any of the three convicted. The prosecutor, wary of not being able to prove their guilt again, offered them a deal. If they entered a plea of guilty they would be immediately freed. However, if they did not, the prosecutor would proceed against them a second time. Already having served 18 years in prison, all three entered a plea of guilty. They were freed but will suffer through the ignominy of having pled guilty of a murder they probably did not commit.
The illustration is meant to demonstrate the fact that the voluntariness of the choice of the accused in the case was illusory. The accused like Alford maintaining their innocence on record, pled guilty to the charges against them. Although in the Indian scenario, the extent of plea bargaining may not cover charges of murder, an analogical argument can indeed be made as to the existence of hard coercion.
20. Indo-Asian News Service, Despite 1,000 Fast Track Courts, 32 Million Cases Still Pending, Indian Express (23/01/2013), available at http://www.newindianexpress.com/nation/Despite-1000-Fast-Track-Courts-32-Millions-Cases-Still-Pending/2013/12/23/article1961278.ece, last seen on 11/02/2014.
21. Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat, AIR 1980 SC /854.
22. State of U.P. v. Chandrika, AIR 1999 SC 164.
23. Damien Wayne Echols v. State of Arkansas, 2010 Ark. 417.
24. Lucian Dervain and Vanessa Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 The Journal of Criminal Law & Criminology, 1-48 (2013).
25. Supra 19.
B. The Dilemma of Expected Choice in Soft Coercion
In addition to hard coercion, there are other forces which may induce a person to accept a particular offer in a plea bargain. These forms of inducements, in addition to hard coercion, affect the voluntariness of plea bargaining. Article 20(3) protects an accused from self-incrimination, in any circumstance where the accused is unwilling to accept his or her guilt. Thus, circumstances which fall outside the systemic forms of coercion would be covered by the fundamental right against self-incrimination. To that extent, inducements amounting to soft coercion would also vitiate the right under Article 20(3).
In cases of soft or hard coercion, the options of the accused are restricted in such a way that the concept of choice becomes an illusion. In hard coercion, the prosecution offers such incentives to the defendants that there is almost absolutely no possibility of the defendant not signing the plea bargain deal. Juxtaposed to this, in soft coercion, the defendants are induced to make the choice which seems rational but this may not be the option that they may have intrinsically preferred. Therefore, in essence, it can be concluded that in soft coercion, the prosecutor can up to a degree predict that the defendants would make the expected choice. The nature of the process of plea bargaining is such that a heavier, and possibly more stringent sentence is imminent, if the defendant does not plead guilty. This aspect affects both, the innocent as well as the guilty. Empirical studies have shown that more than half of the defendants, who are in fact innocent, plead guilty in order to avoid trial and escape with the lighter sentence. This study aptly summarized the concept of expected choice in the practical sense.
On the basis of expected choice, it is believed that the defendant ought to make a choice due to the level of certainty present. However, it is expected of the defendant to choose between two undesirable options, an uncertain quantum of prison sentence or fine and a certain reduction in the sentence provided he pleads guilty. It is clear that one of the alternatives is exhibited as more feasible than the other by coercive inducements which do
26. Justice P.S. Narayana, Human Rights-Safegaurds, Constitutional Provisions and Legislative Measures and Their Adequacy, 6 PL WebJour (2003), available at http://www.ebc-india.com/lawyer/articles/604.htm, last seen on 13/02/2014; M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
27. Brunk, “The Problem of Voluntariness and Coercion,” 533.
28. Ibid.
29. Candace McCoy, Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform, 50 The Criminal Law Quarterly, 67-107 (2005), available at http://www.teacherweb.com/FL/ChristianHomeandBibleSchool/kmccrory/Plea-Bargaining-as-Coercion.pdf , last seen on 13/02/2014.
30. Supra 24.
31. Supra 11, 535.
not necessarily form a part of the formal institution of the criminal justice system. These coercive inducements can further be characterized as intimidating due to the difference in the bargaining powers of the defendant and the prosecutor. It is evident that the balance of this power tilts in the favour of the prosecutor which gives him the upper hand while striking such deals. In fact, in Murlidhar Meghraj Loya v. State of Maharashtra, the Indian Supreme Court did not encourage the concept of plea bargaining as they believed that it was a form of formal inducement. Therefore, the power in the hands of the prosecutor to even offer such inducements to the defendant ensures that he is the stronger party in the negotiations that eventually lead to the deal. Such power will lead to corruption, collusion and pollution of justice. However, this is not the only form soft coercion takes in the plea bargaining procedure.
Often, the socio-economic conditions of the defendant also colour the decision he takes during the plea bargaining proceedings. These conditions are peculiar to every accused person and primarily dictate the choice that is expected of him, by his family, by the society and by his own moral conscience. Therefore, it is indeed palpable that an impoverished individual would plead guilty without undergoing the rigours and expenses of the trial procedure. Partaking in a trial would mean furnishing of bail while under trial and payment of the legal counsel’s fees. However, if he was to plead guilty before the beginning of the trial itself, he would not have to undertake these financial burdens. Therefore, the assumption that a free choice exists can be a controversial one in most cases.
Further, the influence of one’s economic conditions while taking a decision is not restricted to just the impoverished class. A plea bargain usually guarantees a decreased sentence. This ensures that the loss of livelihood of the defendant is not as phenomenal as it was envisaged to be at the beginning of the trial. Therefore, this perceived greater loss of livelihood plays an integral role in the process of plea bargaining. While it is not debated that the salvaged livelihood is beneficial to the defendant, the fact remains that a perceived loss in financial standing dictates the decision to be taken by the defendant.
This leads us to the conclusion that the defendant evaluates the deal not on the basis of his position in the society prior to the bargaining, but on the basis of the choice a rational person would take if he had to face such a situation. Confession of guilt by a defendant
32. Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929.
33. Supra 21.
34. Richard L. Lippke, The Ethics of Plea Bargaining, (New York, Oxford University Press, 2011) 171.
35. Supra 11.
could be perceived as a step forward in the criminal justice administration system. However, it is indisputable that such a decision was taken only because there was a trade off in the things that were valuable to the defendant and this fact lends the process of plea bargaining an intrinsically coercive nature. It can be predicted that through this coercive procedure which encourages the defendant to make the expected choice, many defendants will fill the jails for short sentences and leave with a criminal record.
C. Differentiating Voluntariness from the Current System of Plea Bargaining
To explain the concept of free consent versus soft and hard coercion, it will be worthwhile to refer to a real life example. Often, parents put emotional pressure on a child to study well so as to uphold the family reputation, get a good job and support his parents in their old age. Another method of ensuring the same outcome would be to promise the child that he would receive something which he really wants on the basis of his high score. These two forms of inducement, while being exceedingly simplistic display the two forms of coercion; the former is soft coercion, while the latter is hard coercion. The authors have attempted to prove through the above explanations that when inducement is offered in such a way that the defendant will certainly or speculatively accept the plea bargain deal, it is a form of coercion.
Thus, a situation would be classified as free consent, where the parties should have equal probability to refuse the offer of the prosecutor. Such a circumstance cannot arise as the process of plea bargaining exists to ensure benefit to the accused and thus from a reasonable man’s perspective, compels the accused to take up the plea bargaining offer and plead guilty.
Further, the process of punishing criminals without divulging into the crucial elements of investigation, evidence and fairness, resembles the sale of justice at a street bazaar. As a result, the defendants are forced to give up several protections that the due process of a full-fledged trial offers. The trial procedure in India, though seemingly elaborate, provides the defendant with the rightful opportunity to be heard as well as to appeal. Also, the defendant is considered to be innocent until proven guilty. However, the system of plea bargaining looks to capsize this legal tenet by proclaiming the guilt of the accused before the trial begins.
36. Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals, New York Times, March 22, 2012, accessed February 13, 2014, url: http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html?_r=0.
37. Robert E Scott and William J Stuntz, Plea Bargaining as a Contract, 101 The Yale Law Journal, 1912 (1992).
Lastly, if the defendant is indeed found to be guilty, the judge can exercise his discretion to grant a lower sentence to the defendant in accordance with the statute.
The main problem arises when the counsels representing the two parties take the law in their hands and strike a deal.
The fact that most cases of plea bargaining exhibit the effects of hard or soft coercion or both, should be enough to conclude that plea bargaining is indeed a coercive act, especially for people who may not have the financial or psychological strength to defy the expected choice.
III. CONCLUSION
The right against self-incrimination under Article 20(3) mandates that for plea bargaining to be constitutional, it must be voluntary in nature. Voluntariness in such a circumstance means that the accused should agree to the offer of the prosecutor freely without being coerced. However, such a circumstance does not arise. Situations of hard coercion intrinsic to the system of criminal justice compel the accused to accept the plea bargaining offer. Long trials or the prospect of comparatively extreme sentences makes the exercise of plea bargaining a compulsion on the accused. The accused does not have a reasonable choice between opting for trial instead of opting for plea bargain. Such coercion is generally coupled with another form of coercion which also plays a role in affecting the free choice of the accused. Socio-economic pressures or concerns of livelihood induce a person to opt for a lighter sentence than pay hefty sums as bails or potentially long sentences. This form is called soft coercion. All cases of plea bargaining are covered within the ambit of soft-coercion and hard coercion. The fact that plea bargaining is an incentive to the accused means that there is at least one of the two forms of coercion present in that circumstance. It violates the free consent assumption and in turn, violates the right against self-incrimination as under Article 20(3) of the Constitution of India. Thus, the authors conclude that plea bargaining, in essence is an unconstitutional form of alternate dispute resolution in the Indian context.
38. Supra 3.
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| ARTHAD KURLEKAR and SANIKA GOKHALE are law students at National University of Juridical Sciences, Kolkata. They may be reached at au.kurlekar@gmail.com and sanikagokhale02@gmail.com. |
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