Plea deal despair - Justice minister again vows changes as defence attorneys flay plea-bargaining law
Having been introduced in 2006 as key lever in the plan to speed up the snail pace of progress in the justice system, the plea bargain legislation is proving to be more of a hindrance than a help.
The Criminal Justice (Plea Negotiations And Agreement) Act was introduced to allow persons accused of crimes to agree with the director of public prosecutions (DPP) to plead guilty and give testimony or information that would result in the arrest of accomplices or criminal bosses in return for a lenient or reduced penalty.
Despite amendments to the act in 2010, and hints at further changes by Justice Minister Senator Mark Golding last year, defence attorneys are still frustrated as they say the legislation is not being utilised due to its complexity and lack of consistency.
"The process to give a plea is too lengthy; it needs to be simplified," argued attorney-at-law Valerie Neita Robertson
"There are just too many stages that you need to go through, and so it's not something that you can complete in a single day because the processes are quite complicated," added Neita Robertson as she further argued that inconsistencies in sentencing was a major hindrance to most of her clients deciding to go the route of plea bargaining.
"There needs to be some agreement on the sentences that should be given for certain offences so that we have an idea of what judges will give. What you have now is even in a plea deal, one judge may give you five years while another will give you 25 for the same offence," argued Neita Robertson.
Defence attorney Jacqueline Cummings agrees that the failure of the law to set out minimum or maximum sentences is a major deterrent to its application.
"The first thing a client will come to you and tell you is, 'Well, they say I've committed this act. What am I looking at?' They will not express guilt unless they know what they are facing, but we ourselves don't know, so I've said, ... until the judges have set guidelines as to what is the maximum or minimum range that you can give persons, you will not have more persons pleading guilty in Jamaica," said Cummings.
She argued that the plea bargaining arrangement works extremely well in the United States and not in Jamaica because the accused were left to the 'whims and fancies' of local judges.
"You could go to trial, be found guilty and get 40 years, or you can plead guilty and throw yourself on the mercy of the court and still get 40 years," said Cummings.
"I had an experience where the act totally went awry because my client was given the impression that if she would give a full statement against a co-accused and plead guilty, she would get a lenient sentence. She did this, agreed ,and signed an agreement with the DPP, but I don't know if the DPP bothered to disclose this to the judge or not because my client was still sent to prison and the police did not even bother to go and collect her statement to use against that co-accused," charged Cummings.
Last week, Golding indicated that consultations with members of the public as well as legal stakeholders about the plea bargain law had led him to a similar conclusion: it is not working.
"The purpose of the legislation was to facilitate arrangements where persons who are charged with criminal offences are prepared to enter into an agreement with the prosecution to plead guilty or to provide information in exchange for some leniency in their sentences, and these arrangements were just not happening," Golding told The Sunday Gleaner.
He repeated a 2014 claim that the Government is in the process of strengthening the law.
"I have received their report and it will be going to Cabinet in the next few weeks in the form of a submission to seek approval for drafting instructions so that we can amend the legislation and introduce those recommendations.
"I am confident that once Cabinet approval is granted, it's just a question of getting it drafted, and I'm sure we can get that done very quickly to get plea bargain working," added Golding.