SENTENCES FOR SALE - A NEW LOOK AT PLEA BARGAINING IN ENGLAND AND AMERICA, PART 1

• NCJ Number: 30298
• Journal: Criminal Law Review Volume: 1971 Issue: 1 Dated: (JANUARY 1971) Pages: 150-161
• Author(s): A DAVIS
• Date Published: 1971
• Length: 12 pages
• Corporate Author: Sweet and Maxwell
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

COMPARATIVE ANALYSIS OF THE NATURE AND SCOPE OF PLEA BARGAINING IN ENGLISH AND AMERICAN COURTS, WITH EMPHASIS ON THE GUILTY PLEA AS A FACTOR IN SENTENCING AND THE PROBLEM OF VOLUNTARINESS OF GUILTY PLEAS.

Abstract

THE AUTHOR POINTS OUT THAT WHILE IN ENGLISH COURTS AN OFFENDER'S REMORSE, EXPRESSED IN HIS PLEA OF GUILTY, MAY PROPERLY BE RECOGNIZED AS A MITIGATING FACTOR, THERE ARE CONTRADICTORY OPINIONS ON WHETHER THE AMERICAN PRACTICE OF REWARDING GUILTY PLEAS WITH LENIENCY (WITHOUT LOOKING FOR EVIDENCE OF ACTUAL REMORSE OR ANY OTHER MITIGATING FACTOR) IS JUSTIFIED. UNITED STATES AND ENGLISH CASE LAW IS CITED TO ILLUSTRATE THE COUNTRIES' DIFFERENT STANDS REGARDING THE DETERMINATION OF THE VOLUNTARINESS OF A GUILTY PLEA. THE ENGLISH POSITION IS THAT, PROVIDED THE JUDGE HAS NOT INTERVENED, A GUILTY PLEA IS DEEMED TO HAVE BEEN VOLUNTARY IF THE DEFENDANT, PROPERLY ADVISED AS TO THE POSSIBLE ALTERNATIVES BY HIS COUNSEL, HAS THE FREEDOM IN HIS OWN MIND TO CHOOSE THE PLEA HE WILL MAKE. THE SENTENCING DIFFERENTIAL IS NOT ITSELF CONSIDERED AN UNFAIR INDUCEMENT WHICH WOULD AFFECT THAT FREEDOM OF CHOICE. AN INDIRECT (OR DIRECT) INTERVENTION INTO THE DEFENDANT'S CONSIDERATION OF HIS PLEA BY THE JUDGE, OR A REASONABLE BELIEF IN SUCH AN INTERVENTION WILL, IF HELD BY THE DEFENDANT, VITIATE A PLEA OF GUILTY ENTERED UNDER THE INFLUENCE OF SUCH INTERVENTION OR SUCH BELIEF. THE AUTHOR POINTS OUT THAT AMERICAN COURTS, ON THE OTHER HAND, THAT A PROMISE DOES NOT MAKE A PLEA INVOLUNTARY IF THAT PLEA IS FREELY ENTERED BY THE DEFENDANT, WITH AN AWARENESS OF ALL THE RELEVANT FACTS AND THE ASSISTANCE OF COUNSEL. SO LONG AS THERE IS A REAL 'CHOICE', THE 'FREEDOM' WILL BE ASSUMED. ONLY WHEN THE CHOICE AS WELL AS THE FREEDOM BECOMES ILLUSORY, AS A RESULT OF THE INDUCEMENT OFFERED, WILL A PLEA OBTAINED THEREBY BE HELD INVOLUNTARY. FOR PART TWO OF THIS ARTICLE, SEE NCJ-30299. (AUTHOR ABSTRACT MODIFIED)