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EDITORIAL - State's job to promote plea-bargaining

Published:Tuesday | May 1, 2012 | 12:00 AM

We have noted the slow start to plea-bargaining in Jamaica's judicial system and the trading of blame between prosecutors and criminal-defence lawyers for the limited use of the facility so far.

According to Director of Public Prosecutions Paula Llewellyn, in the 16 months the regulations have been in place, perhaps 10 cases have been resolved by plea deals.

"... We don't have many attorneys offering a plea, and even when we suggest it, it is not often entertained," Ms Llewellyn told this newspaper.

Mrs Valerie Neita-Robertson, a prominent defence lawyer, who is also a vice-president of the Jamaican Bar Association, sees the matter differently.

"It's not operating because the prosecution doesn't take pleas," she said. "They want the whole hog."

We suspect that the truth lies somewhere between these two views. But, perhaps, more important is the failure of the Jamaican authorities to popularise the idea of plea-bargaining to make its concepts accessible to the Jamaican public.

Concerns arise, but ...

Indeed, the approach to plea-bargaining has been one that suggests that it is something that the Jamaican judicial system intellectually tolerates, but is wary of affording full embrace. It took, for instance, half a decade between the passage of the Criminal Justice (Plea Negotiations and Agreements) Act in 2005 and Parliament's approval of regulations to give practical effect to the law.

We appreciate the concerns of those who harbour reservations on the concept of plea-bargaining, on the basis that the process is potentially coercive to the point of impinging on the right of individuals to fair trial by juries. Such concerns, however, can be mitigated by ensuring that accused persons are represented by attorneys who have a clear obligation - as is required by the Jamaican legislation - not only to inform their clients about plea-bargaining negotiations, but fully explain the parameters of any agreement and the consequences that will flow therefrom.

There is also the legitimate concern that plea-bargaining may influence innocent persons to agree to sentences on lesser charges rather than risk conviction on greater ones. The process can, too, make investigators and lawyers lazy. Rather than spending the time preparing cases, they may go to court to craft deals, counter to the interest of justice.

Clearly, the courts must be vigilant in ensuring that the system is not abused. In any event, accepting a plea deal is, and must be, the prerogative of the accused.

Advantages to court system

Reservations apart, there are good reasons why plea-bargaining can be of value to Jamaica, not least the fact of the backlog of more than 450,000 cases that clog the judicial system. Beyond these cases, the process is slow. Delay impinges on the quality of justice to both victim and accused.

Plea-bargaining does not provide the whole answer, but some of the frustrations of a slow, curdling system can be cushioned, if not alleviated, by a process that gives a little satisfaction to all parties that justice is served. And it can help with the backlog of cases.

Creatively applied, plea bargains can be used with the Lilliputians to get to the big players in Jamaica's crime syndicates.

All sides can gain advantages from plea-bargaining, but the greater burden is on the State to make the system work.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.