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The Plea Agreement Process:

An International and U.S. Perspective


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JOHN W. VAUDREUIL
FORMER UNITED STATES ATTORNEY
UNITED STATES DEPARTMENT OF JUSTICE
Overview
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What is the plea agreement process?


Benefits For the court, the public and the
criminal justice system, the accused, and law
enforcement
Criticisms of the plea agreement process
International perspective
United States perspective
What The Plea Agreement Process Is
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A fair negotiation to resolve the case without a trial


Conducted before or after the case is charged
A contract negotiated between the government and the
defendant, assisted by defense counsel, regarding charges
and/or the sentence to be imposed
Agreement with defendant for guilty to plea to fewer or less
serious charges
Defendant may agree to cooperate against co-defendants
Prosecutor agrees to recommend shorter sentence in return
for assistance in prosecution of other criminals
What The Plea Agreement Process Is Not
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Not bargaining in the market


Not an attempt to trick the accused
Not an attempt to hide facts from the court
and public
Not an attempt to let the guilty go free or get
off easy
Benefits For the Court, the Public, and the Criminal Justice
System
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Reduces delay and case backlog


Reduces unnecessary incarcerations in an
overcrowded prison population
Promotes accountability with the public
Publicly develops full facts in search for the truth
Encourages defendants to take responsibility for
criminal acts
Supports law enforcement in identifying witnesses to
prosecute corruption and organized criminal
organizations
Benefits for the Accused
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Accept responsibility for crimes with court, victims,


and the public
Serve a shorter sentencegovernment recommends
shorter sentence than after trial for early
acknowledgment of guilt
Receive an additional sentence reduction if defendant
provides assistance in prosecution of others
Avoid a lengthy trial
Achieve finalityresolve all charges
Benefits for Law Enforcement
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Avoid a lengthy trial--conserve resources and time for


other cases
Obtain assistance from less culpable defendants to
build cases against those more culpable in the
criminal organization
Achieve a fair and just conviction, but avoid risks of
trial
By avoiding the trial, reduce the increased trauma on
witnesses and crime victims caused by trial
Criticisms of the Process
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Criminals get off easy


Truth and facts are hidden from public and court
Innocent people pressured to plead guilty
Unsophisticated / mentally challenged people plead guilty
without full understanding
Unethical prosecutor seeks personal gain from defendant in
return for a reduced sentence or dismissal of serious charges
Victims not fully protected
Responding to Criticism
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The plea agreement process must:


Be open and transparent for the Court and public
Ensure that the guilty plea is voluntary, with a full
understanding of rights by the accused
Include effective defense attorneys helping the
accused
Protect the victims rights
Ensure consistency and honesty by prosecutors and
law enforcement
International Movement
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Worldwide trend favors increased use of plea


agreements
Substantial reduction of burden on courts and
prisons
Legislatures and courts world-wide introducing
plea agreement process to address overloaded court
systems
Assure public of justice without delay
International Experience-Key Factors to Consider
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Code limitations on nature and seriousness of crimes


where agreements allowed
Code limitations on what agreements can cover
Crimes charged? Sentence recommendation? Both?
Judicial role in negotiations
Judicial role in entry of guilty plea to ensure it is
voluntary and knowingly entered
Role of defense attorney
Republic of Georgia
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Introduced in 2003 code allows both charge and


sentence bargaining
Required written confirmation by accused
acknowledging rights
Requires participation of defense attorney
Approximately 60% of cases resolved by plea
agreement
Bosnia Herzegovina
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Introduced in 2003 code limits agreements to


only sentencing agreements, not charges
No code limitations on eligible offenses
Court ensures that defendant enters voluntary
guilty plea and that there is a sufficient factual basis
for the charges
Taiwan
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Introduced in 2004 code limits agreements to only


sentencing agreements, not charges
Plea agreement negotiations only allowed after charging and
confined to non-serious offenses
Any agreed sentence that exceeds six months in prison
requires right to counsel
No judicial participation in negotiations--the judge confirms
defendants voluntary waiver of rights and may reject the
agreement
Utilized in small percentage of cases due to difficulty in
obtaining defense counsel
Germany
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Civil law, inquisitorial system


Plea agreements common since early 1990s
Code allows agreements on charges and
sentencing
Judicial role in civil law system restricts
prosecutors in plea agreement process
Argentina
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Civil law, inquisitorial system


Incorporated in 1997 with proposed expansion in 2016
Sentencing agreements can be reached anytime after
charging negotiated sentence may not exceed six years in
prison
Judge can reject agreement if factual basis insufficient or if
the judge disagrees with the charge
Approximately 60% of cases resolved by plea agreement
France
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Introduced in 1999 with explicit goal of reducing caseloads


Only allowed with non-serious offenses listed in the Code
Plea agreement process occurs before the initiation of
formal proceedings
Requires admission of guilt and fulfillment of specified
conditions in agreement
Judge not involved in negotiations
If agreement with accused and attorney reached, prosecutor
seeks validation by the judge
India
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Common law system


Plea agreement process introduced in 2005
Accused files motion with the court to allow for plea agreement
discussions
If request approved, judge sets date by which an agreement must be
reached
Negotiations include the prosecutor, accused, victim, and
investigating police officer
Judge ensures voluntary process and must follow plea agreement terms,
with the ability to sentence below recommended punishment
Limited to cases where maximum prison term is less than 7 years not
allowed in cases with female victims or child victims under 14-years old
China
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2016 plea agreement pilot program in 18


major cities
Limited to minor cases
Guilty plea prior to trial will result in shorter
sentence
United States Plea System Protections
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No judicial involvement in negotiations of agreement


No limit on nature or seriousness of crimes where
agreements allowed
Agreements can cover both crime charged and sentence
recommendation
Prosecutor oversight and review to ensure fairness and
consistency in plea agreements
Full disclosure of prosecution evidence before the plea
Guilty plea entered in public court hearing
United States Plea System Protections
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Transparency full, written plea agreements filed


in public court record
Judge ensures guilty plea is given voluntarily with
knowledge of all rights
Judge ensures the case facts support the charge and
the plea
Accused has effective attorney at every stage of plea
process
Code ensures that victims are protected and
allowed to speak during plea process
The US Guilty Plea Hearing
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Judge questions the accused to ensure that:


Accused understands charges and penalties, his rights, is of
sound mind and is pleading guilty voluntarilyno threats or
coercion or hidden promises
Accused must understand and voluntarily waive his:
Right to plead not guilty and have a jury trial
Right to the help of an attorney paid by the government
Right to remain silent
Right to compel witnesses to testify and to present evidence
Right to cross-examine the prosecution witnesses
Right to appeal
US System Experience
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85%-95% of cases resolved by plea


agreement
Large reduction in pretrial delay and court
backlog
Extremely important in resolving corruption
cases and cases involving criminal
organizations

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