THE SOLUTION TO THE DILEMMA PRESENTED BY THE GUILTY
PLEA DISCOUNT: THE QUALIFIED GUILTY PLEA - `I'm pleading guilty only because of the discount....'
Mirko Bagaric and Julie Brebner*
This is a pre-print
version of this article. For the published version see
‘The Solution to
the Dilemma Presented by the Guilty Plea Discount: The Qualified Guilty Plea
– ‘I’m pleading guilty only because of the discount …’ (2002) 30(1) International
Journal of the Sociology of Law 51-74
Summary: The guilty plea sentencing discount is arguably a triumph of expediency
over principle. Strong utilitarian reasons favour providing less severe
sentences to defendants who plead guilty. However, an unsavoury by-product of
the guilty plea discount is that some innocent people are pressured into
pleading guilty. This article suggests that a possible solution to the problems
caused by the discount is to permit defendants to enter a `qualified guilty
plea'. While formally amounting to a guilty of plea, the defendant would be
permitted to advance submissions consistent with innocence as part of the plea
in mitigation. If the sentencer is persuaded that the defendant had a tenable
chance of an acquittal a penalty discount in excess of that available for
merely pleading guilty would be conferred.
1 Introduction
and Overview of Reform Proposal
The
guilty plea discount remains one of the most controversial aspects of
sentencing. There is no obvious
principled criminological basis for punishing offenders who plead guilty less
severely than those who elect to proceed to trial. As John Willis has noted,
the consequence of the discount is that `the final product after allowing for
the guilty plea is not the appropriate sentence according to traditional
penological criteria'.[1]
There are, however, strong pragmatic reasons in favour of encouraging defendants
to plead guilty. A guilty plea saves the community the expense of a contested
hearing, reduces court delays and spares witnesses the stress of giving
evidence. However, the discount comes at a high price, placing pressure on some
innocent defendants to plead guilty. The High Court of Australia in Cameron[2]
recently approved of the discount and, in the process, the majority of the
Court rejected a number of arguments against the discount, including that it
constitutes a form of discrimination against offenders who elect to pursue
their `right' to a trial.
The
purpose of this paper is to suggest a different approach to the dilemma caused
by the guilty plea discount. It is important to note that this article focuses on the
discount for a guilty plea per se, as
opposed to a discount for an expression of remorse or cooperation with
investigating officials which often (but not always) coincide with a plea of
guilty. The desirability of providing a discount where there is remorse or
cooperation with authorities raises different issues to the guilty plea
discount.[3]
There
are two obvious ways in which the
problem caused by the guilty plea discount can be resolved. One is formal, the
other substantive.
The
formal approach is to take the view that the discount does not coerce offenders
into pleading guilty and hence deny the existence of a problem. This is most
commonly done by invoking the well-known argument that the discount does not in
fact punish those who plead not guilty more harshly, but rather simply reduces
the sentences of those pleading guilty. We reject this argument as being
illogical.[4]
The
substantive approach to resolving the problem is to abolish the discount. This
appears undesirable as there are strong reasons in favour of its
retention. We propose a different
solution.
Overview of Proposal
We
propose that the concept of a `qualified guilty plea' be introduced. Formally,
this would constitute a plea of guilty. However, it would enable defence
counsel to commence the plea on the footing that: `My client pleads guilty, but
only to preserve the guilty plea discount...'. Counsel would then be permitted
to make submissions consistent with the innocence of the client during the
course of the plea. If the submissions are persuasive, the defendant would be
eligible for a discount in excess of that available simply for pleading
guilty. This proposal strikes a balance
between the competing interests of law enforcers and accused. It does so by ensuring that the utilitarian
benefits of preserving the discount are retained, while giving appropriate
acknowledgment to the fact that (i) the discount places pressure on defendants
to plead guilty; and (ii) all persons who plead guilty are not equally guilty.
Some
commentators will dismiss the proposal due its highly revisionary character.
The most obvious criticism is that the integrity of the criminal justice system
will be impaired by imposing criminal sanctions on people who claim to be
innocent. Comments along such lines ignore the fact that the system is already
broken - and seriously so. Any legal system that deals with policies or
practices that lead to the punishment of innocent people, by denying or
ignoring the problem, is in need of significant reform.
The
proposal urged in this paper will not cure many of the ills of the current
sentencing system. It is suggested, however, that it will make the system more
transparent and, ultimately, better. A system that permits innocent people
(where innocence means an unsustainable prosecution case) to assert their
innocence in a limited sense, and receive a reduced sentence because of this,
is not as bad a system which induces innocent people to plead guilty and
receive only the same discount as those who plead guilty as a result of being
caught red-handed.[5] The basic maxim underpinning the suggested
reform is that usually the most satisfactory solution to life’s dilemmas, even
legal ones, is simply to be honest.
Advantages and Disadvantages of the Proposed Reform
The
proposed reform would have three main advantages:
1 It would
make the sentencing system more transparent, by acknowledging that the guilty
plea discount puts pressure on the innocent to plead guilty - in some cases
invariably leading to the conviction of the innocent.
2 It would
acknowledge that all defendants who plead guilty are not `equally guilty'.
Defendants who have a tenable defence would be eligible for a discount in
excess of the thirty per cent, or so, currently available for pleading guilty.
3 A higher
portion of cases are likely to be finalised by way of guilty pleas - equating
to more cost savings to the community.
The
principal disadvantages are as follows:
1 The time
taken to establish that a defendant has a tenable defence threatens to
undermine the cost and efficiency rationale for the reform.
2 Providing
an even greater discount will place even greater pressure on defendants to
plead guilty.
It
is argued that the advantages outweigh the disadvantages and that consideration
should be given to trialing the proposed reforms.
Prior
to canvassing reform issues, we briefly overview the way in which the guilty
plea discount currently operates. This is followed by an analysis of the
arguments for and against retention of the guilty plea discount. Finally we
consider how the discount can operate in the most desirable manner possible by
explaining our proposal for reform.
2 Present
Legal Position
In
the United Kingdom and all Australian jurisdictions (other than Tasmania)
accused who plead guilty are given a sentencing discount.[6]
This is so irrespective of whether the plea is coupled with remorse. For
example, in Morton the Victorian
Court of Criminal Appeal stated that:
A plea of guilty may be taken into account
regardless of whether or not it is also indicative of some other quality or
attribute such as remorse ... A court may always take a plea of guilty into
account in mitigation of sentence even though it is solely motivated by
self-interest'.[7]
While
courts are normally reluctant to state the exact amount of the discount,[8]
the normal range appears to be between one-quarter and one-third, depending on
the circumstances of the case.[9] The general rule is, the earlier the plea,
the greater the discount.[10] The weight of decisions support this,
indicating that the timeliness of the plea is, in fact, the main variable
relevant to the size of the discount.[11] Thus,
theoretically the full discount is available to offender who pleads guilty at
the first reasonable opportunity, despite the absence of a legitimate defence.[12] It has been noted in this regard that an
accused will only be encouraged to give early pleas of guilty ‘if they lead
(and are seen to lead) to a substantial reduction in the sentence imposed'.[13]
It
has also been suggested that the discount is greatest when the prosecution case
is weak.[14] However,
this does not seem to reflect the state of the law.[15]
As was noted by Byrne J (with whom McPherson and Moynihan JJ agreed) in the
Queensland Court of Criminal Appeal, such an approach is contrary to the
rationale for the discount:
I remain to be convinced that this
reluctance to make any allowance for guilty pleas in apparently indefensible
cases is justified. If administrative expediency resulting from a guilty plea
is a sufficient basis for moderation in sentencing, it ought not to be decisive
against a lesser sentence that conviction seems certain in the event of a
trial. Unless there is an incentive for an offender to admit guilt, there is
always the prospect the trial will proceed to a verdict, if only because the
accused perceives that there is nothing to be lost by risking the contest....
Another intended benefit of a submission to conviction, one frequently
mentioned in sexual cases, is sparing the witnesses the ordeal of a trial. That
advantage is no less valuable in seemingly irresistible cases.[16]
The
view that the size of the discount should depend on the strength of the
prosecution case is also incompatible with present sentencing law and practice,
given that, from the material presented at a sentencing plea, sentencers are
rarely in a position to meaningfully evaluate the strength of the prosecution
case.[17]
As is noted by Ashworth, `the idea of being caught red-handed refers only to
factual situations, and there may be more to them than meets the eye - for
example, a possible defence such as duress of circumstances, automatism, or
whatever'.[18]
There is some evidence that the plea discount makes very little
difference to the ultimate penalty, especially in the lower courts, with
sentencers merely paying lip service to it as a mitigating consideration.[19]
On the other hand, surveys of sentences handed down in the Crown Court show
that the average reduction in prison sentence for pleading guilty was 22% in
one study; 31% in another; and most recently 40% in another.[20]
A curious aspect of the most recent study was that for some offences, such as
indecent assaults and causing death by dangerous driving, the average sentence
after a plea of guilty was higher than following conviction after trial.[21]
That there would be little correlation between theory and practice and so much
diversity in practice is not surprising. Legislative action in the United
Kingdom and Australia has done little to curb what Andrew Ashworth described
almost a decade ago as the `cafeteria system'[22] of sentencing, which
permits sentencers to pick and choose a rationale or objective of sentencing
which seems appropriate at the time with little constraint.[23]
3 Does the Discount Penalise those who Elect to Proceed to
Trial?
As indicated earlier, some commentators have
attempted to circumvent the conceptual and normative problems associated with
penalising those who exercise their right to trial by urging that it is not that the system punishes those who plead not guilty more; rather it simply punishes those
who plead guilty less.[24] Framed in this way, the guilty plea discount is more palatable and it
can be used to counter the argument that some offenders are coerced into
pleading guilty.
In Cameron,
it was a view endorsed by all members of the Court, except McHugh J. In their
joint judgment, Gaudron, Gummow and Callinan JJ stated:
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction (emphasis added).[25]
Similarly Kirby J stated:
This
is a common form of argument. It places semantics over reality.[27]
Perhaps it is not surprising that it is frequently used in the legal domain.
For example, it is often used to justify the extra punishment meted out to
recidivists: it is not, so the argument runs, that we punish repeat offenders
more harshly; rather we give a discount to first offenders.[28]
Arguments of
this nature are logically flawed, and constitute no more than an appeal to
confusion by invoking the perennial glass is half empty or half full
subterfuge. There is, however, a ready solution to such dilemmas; simply change
the point of reference to an objective measure. The correct question is: How much water is in the glass? And to get
to the crux of the matter hand, all that needs to be asked is: Do offenders who
plead not guilty who commit identical
offences to offenders who plead guilty receive harsher sentences?
McHugh J was the only member of the Court in Cameron
who appeared to accept that the effect
of the discount is to penalise those who plead not guilty more severely. He
stated that:
The result [of the guilty plea discount] is that a person who pleads guilty at the earliest possible time almost always obtains a shorter sentence than a person who pleads not guilty and is convicted. The courts are well aware that it "is impermissible to increase what is a proper sentence for the offence committed in order to mark the court's disapproval of the accused's having put the issue to proof or having presented a time-wasting or even scurrilous defence." But the courts maintain that the accused who pleads not guilty is not being punished and given an increased sentence for pleading not guilty. Rather, the accused who pleads guilty merely gets a lighter sentence than he or she otherwise deserves. The subtlety of this scholastic argument has not escaped criticism from those who see legal issues in terms of substance rather than form. In Shannon, Cox J said that a defendant "will need a very subtle mind, unusually sympathetic to the ways of the law" to accept this argument. And, speaking extra-judicially, Pincus J has said that "people are being punished for insisting on a trial, at least in the sense that they may receive a longer sentence if they plead not guilty than they would if they pleaded guilty".[29] (references omitted; emphasis added).
Thus, there seems little question that providing a
discount to offenders who plead guilty logically entails that accused who are
found guilty after exercising their right to a trial are punished more
severely. Not surprisingly, this is the way defendants, who are not versed in
the `logical intricacies of the law', see things. Following interviews with
defendants who pleaded guilty, Balwin and McConville note that `as far as we
can tell, the sentencing differential is viewed by virtually all defendants as
a penalty imposed on those who unsuccessfully contest their case'.[30]
4 Reasons
in Favour of Retaining the Discount
Prior
to elaborating on the proposed reform, we first indicate the shortcomings of
the most obvious solution to the problems raised by the guilty plea discount –
that is, to simply abolish the discount.
We do this be considering the main arguments raised for and against the
discount.
4.1 Utilitarian
Reasons - Cost savings
The
most persuasive consideration in favour of the discount is economics. Trials
and contested hearings take time, which in turn amounts to community money -
and lots of it.[31] The guilty
plea discount provides offenders a pragmatic incentive to plead guilty and
thereby eliminate, or at least reduce, these costs.[32]
In essence, it serves the same purpose as costs orders in civil cases.[33]
There are several other reasons for providing the discount which are summarised
in the joint judgment of Gaudron, Gummow and Callinan JJ in Cameron:
Australian
courts have enthusiastically embraced the proposition that a person who pleads
guilty should receive a lesser sentence than one who pleads not guilty and is
convicted. In so far as a plea of guilty indicates remorse and contrition on
the part of the defendant, the courts have long recognised it as a mitigating
factor of importance. But in recent years, under the pressure of delayed
hearings and ever increasing court lists, Australian courts have indicated that
they will regard a plea of guilty as a mitigating factor even when no remorse
or contrition is present. They have taken
the pragmatic view that giving sentence "discounts" to those who
plead guilty at the earliest available opportunity encourages pleas of guilty,
reduces the expense of the criminal justice system, reduces court delays,
avoids inconvenience to witnesses and prevents the misuse of legal aid funds by
the guilty.[34] (references
omitted; emphasis added)
Similar observations were made by Kirby J:
The main features of the public interest, relevant to the discount for a plea of guilty, are "purely utilitarian". They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds. ... [I]t is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered.[35] (references omitted; emphasis added).
The
time and cost savings stemming from guilty pleas provide powerful arguments in
favour of maintaining the discount. If all persons charged with a criminal
offence pleaded not guilty the criminal justice system would literally grind to
a halt - the delay between charge and trial would blow out to many years.[36]
Absent
the guilty plea discount there is no incentive for accused persons to plead
guilty - no matter how compelling the case against them. It would, in fact, be
contrary to the best interests of the accused to plead guilty. This was a point
noted in Shannon; `If a plea of
guilty ... cannot be regarded as a factor in mitigation of penalty, there is no
incentive ... for an accused to admit
... guilt... If the offender has nothing to gain by admitting guilt, he will
see no reason for doing so'.[37]
If
the discount did not exist, prudent counsel should encourage client's to pursue
even remote or theoretical chances of acquittal. To this end, it is noteworthy
that, in virtually every criminal prosecution, there is some possibility of
acquittal. The technicalities of evidence law and the inability to predict with
total certainty how a witness will come across when giving evidence ensure
this. Sometimes the best prospect of acquittal may rest in the hope that a key
witness will not appear. However, even such desperate defences should be
pursued in the best interests of the accused if the guilty plea discount is
abolished. In this regard, it is noteworthy that the guilty plea discount seems
to be an effective inducement. The weight of empirical evidence suggests that
the sentence discount is a relevant consideration to the decision to plead
guilty.[38]
4.2 Avoiding Inconvenience to Witnesses
Apart
from time and cost savings (and the consequential reduction in court delays),
the main reason advanced for according the discount is that it avoids
inconvenience to witnesses.[39]
In Thomson the Court noted:
A plea permits the healing process to commence. A victim does not have to endure the
uncertainty of not knowing whether he or she will be believed, nor the
skepticism sometimes displayed by friends and even family prior to a
conviction. A victim will also be
spared the personal rumination of the events … Like the element of remorse, this consideration depends
on the specific circumstances of the offence and overlaps to a substantial
extent with other aspects of the specific case which are relevant to the
sentencing task.[40]
Similarly,
in Cameron, Kirby J stated:
A plea of guilty may also help the
victims of crime to put their experience behind them; to receive vindication
and support from their families and friends and possibly assistance from the
community for injuries they have suffered.
Especially in cases of homicide and sexual offences, a plea of guilty
may spare the victim or the victim’s family and friends the ordeal of having to
give evidence. (footnotes omitted)[41]
The
persuasiveness of this justification involves a degree of speculation. The Court in Thomson recognized that
this ‘is a consideration which varies to a significant degree with the nature
of, and circumstances of, an offence. …’.[42] Studies have also shown that some witnesses,
especially complainants want `their day in court'.[43]
Nevertheless, at least in some circumstances, the avoidance of inconvenience
and distress to witnesses may have a value worth rewarding through a guilty
plea discount.
4.3 Facilitation
of the Course of Justice
In their joint judgement Gaudron, Gummow and
Callinan JJ took a novel approach to justifying the discount. Their Honours
noted that the discount potentially discriminated against defendants who plead
guilty. However, they ultimately denied that this was the case because there
was a relevant difference between them and the guilty pleaders - the latter
facilitated the course of justice.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation
of the requirement that a person not be penalised for pleading not guilty with
the rule that a plea of guilty may be taken into account in mitigation requires
that the rationale for that rule, so far as it depends on factors other than
remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and
not on the basis that the plea has saved the community the expense of a
contested hearing.[44]
(emphasis added)
Thus,
the manner in which their Honours seek to justify the discount is not by
reference to time and cost savings, but rather by the fact that it shows a
willingness on behalf of the offender to facilitate
the course of justice. This phrase is not without its difficulties.
First,
it is so open ended and nebulous to be arguably incapable of serving as a
justificatory ideal. Secondly, the corollary of the justification for the
discount advanced by their Honours is that an offender who exercises his or her
right to trial has in some way
thwarted or acted contrary to the interests of justice.
This appears to be at odds with the latitude the High Court of Australia has, on other occasions, accorded to accused persons who exercise their legal rights. For example, in the context of the pre-trial right of silence the High Court has stated `an incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer questions or provide information. To draw such an adverse inference would be to erode the right of silence or to render it valueless' (emphasis added).[45]
It
is not necessarily contradictory to assert that one should suffer a
disadvantage as a result of exercising a right. As is discussed below, no right
is absolute. At the conceptual level `the fact a right exists does not mean that no
disadvantage may flow from its exercise'.[46] However, where the
practical effect of a legal principle (in this case to offer a discount to
those who plead guilty) is to limit or attenuate the scope of a right (the
right to trial) the soundest and most transparent manner in which to justify
the limitation is not to purport that the right has not been curtailed, but to
indicate the nature of the limitation and the reasons for the limitation.
Thus,
`facilitating the course of justice' does not constitute an additional reason
for preserving the discount.
Incompatibility
with Sentencing Principle
Most probably the reason
that the majority of the High Court in Cameron refused to accept
incidental considerations, such as pleading guilty, as being relevant to
sentence was the underlying concern that the efficient running of the criminal
justice system has nothing to do with sentencing principle. This has been
expressed as a reason for rejecting the guilty plea discount: `with the
sentence discount, the outcome is determined by administrative considerations,
rather than appropriate sentencing principles'.[47]
This argument fails to
appreciate that criminal justice and sentencing do not occur in a vacuum.
Sentencing `principles' are not stand alone constructs. Sentencing involves the
deliberate infliction by the State of unpleasantness on its citizens. Hence, it
must be justified by reference to a broader moral theory.[48]
One theory which is clearly capable of justifying our system of punishment is
the utilitarian theory of punishment.[49]
Hence, unless critics are capable of dismissing utilitarianism as a coherent
theory of criminal punishment it is premature to simply assert that the
discount is inconsistent with sentencing principle. For those inclined towards
a retributive (or just deserts) theory of punishment the sentencing discount
may yet by justified. Acceptance of the discount merely reflects the reality
that the community is unprepared to spend inexhaustible resources on any public
institution, whether it be health, transport or sentencing. It is a case of
making the (retributive) system the best it can be given the resourses
available. If retributivists are not willing to accept the discount, assuming
that the amount of government funding for the criminal justice will not
substantially increase, they must then suggest other reforms which can make up
for the efficiencies lost as result of abolishing the discount.
5 Reasons
for Abolishing the Discount
5.1 Pressure to Plead Guilty
It
has been noted that `it is a paradox [that] courts are diligent to prevent ...
pressure or inducement ... to bring about an admission, .. and yet with ... the
plea of guilty such inducements have become institutionalised'.[50]
The main reason for abolishing the discount is the risk that it may cross the
threshold between providing an incentive
to plead guilty and coercing accused
persons to forego their right to a hearing. For those who place a premium on
substance and outcomes, this is not necessarily troubling - the discount merely
serves to expedite the punishment of the guilty. However, the luster of the
discount readily diminishes if the pressure it exerts is so great that it
results in some people that are actually innocent pleading guilty.[51]
This would constitute a violation of perhaps the most important right in our
legal system - the right against wrongful conviction.[52]
There
has been little empirical research done to ascertain the number of innocent
people who plead guilty for fear of losing the discount. There is, however,
evidence which suggests that some accused are so perturbed about the prospect
of losing the discount that they plead guilty for this reason. Research carried out in the United Kingdom for the
Royal Commission on Criminal Justice suggests that up to 11 per cent of people
who plead guilty claim innocence.[53]
The report by the Royal Commission ultimately held that this risk must be
balanced `against the benefits to the system of encouraging those who are in
fact guilty to plead guilty.'[54]
Some
offenders, even after their matter has been dealt with in court, have an
interest in protesting their innocence - it may be seen as a way of minimising
the damage to their reputation. Thus, it is not possible to ascertain what
portion of the 11 per cent were actually innocent. However, one can be
confident that the discount coerces at least some innocent offenders to plead
guilty. As Willis has noted, it is certainly understandable that some innocent
offenders would plead guilty. For the defendant `the stakes will be generally
high - acquittal or imprisonment; the outcome uncertain; a plea of not guilty
likely to lead to further delays in the determination of the case; and the
actual trial a lengthy ordeal to be endured ... even for an innocent defendant,
the guilty plea with an expectation of leniency can be an attractive soft
option.'[55] In a
similar vein, the Royal Commission also concluded that the risk of innocent
people being pressured into pleading guilty `cannot be avoided and although
there can be no certainty as to the numbers ... it would be naive to suppose'
that it does not happen.[56]
It
follows that the discount will inevitably result in some innocent people being
convicted. Despite this, in section 6, we argue that it is still desirable to
preserve the discount while at the same time implementing measures that
minimise the amount of punishment inflicted on defendants that are actually
innocent, as well as those who have a defence which is at least tenable.
5.2 The Argument that the Discount Discriminates Against Non-guilty pleaders
The
other main argument against the discount is that it potentially discriminates
against offenders who elect to pursue their legal right to a hearing. This was a point
addressed, unsatisfactorily, by the majority in Cameron.[57]
It was also of concern to McHugh J, who indicated that
it could lay the foundation for a future constitutional challenge[58]
to the discount:
[I]t is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that one group has been convicted on pleas of guilty and the other group has been convicted after pleas of not guilty. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen (2001) 76 ALJR 79 at 92:
"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."[59]
The
discrimination argument is not a strong one. The guilty plea does not
discriminate against non-guilty pleaders because there is an obvious relevant
difference between them and guilty pleaders: only the latter conducted their
affairs in a manner which saved the community thousands of dollars. For this,
they are rewarded. The reason that the High Court got into difficulty
concerning the concept of discrimination, and had to rely on such desperate
arguments as facilitating the interests of justice to find a relevant
difference, was that it assumed that a relevant difference between the parties
(in terms of evaluating their respective merits and deserts) could only be
found by contrasting the intrinsic features of their respective cases - such as
nature of the crime and factors personal to the offenders. For some reason, the
Court did not accept that incidental
consequences which are caused by a person are relevant to an assessment of the
person's merits and deserts. The Court was wrong to miss the point. The law
recognises that incidental consequences or considerations clearly count as
relevant considerations. Thus for example, informers are usually given a
significant sentencing discount; discounts may be given where the sentence will
have an exceptional impact on the offender[60]
(and in some cases even third parties, such as family members[61]);
and recidivists are normally punished more severely.[62]
Discrimination on the Basis of Race
A
stronger foundation for the discrimination argument (which was not raised in Cameron) is not that the guilty plea
discount discriminates against non-guilty pleaders, but rather that it
discriminates against socially disadvantaged minority groups. Chief Justice Spigelman of the New
South Wales Court of Criminal Appeal has commented that `[s]ome parts of the
community, like Aboriginal accused, may be particularly vulnerable to
inappropriate pressures to plead guilty. A sizeable discount for a [guilty]
plea may increase such pressures.'[63]
The reverse trend appears to be evident in the United Kingdom. Research by
Roger Hood suggests that Afro-Caribbean offenders plead guilty less than white
offenders.[64] This too
has been claimed as potentially discriminatory on the basis that `a general
principle (the sentence discount) has a disproportionate impact on members of
ethnic minorities simply because they more frequently exercise a right (the
right to be presumed innocent until convicted).[65]
The curious point to emerge from these comments is
that there seems to be a tenable argument for claiming that the discount
discriminates where a group utilises it too much or too little. This underlies the complexity of the discount; in
particular the uncertainty regarding whether or not it is a desirable
principle.
Ultimately, however, the notion of discrimination is
more than simply a numbers issue. The fact that a certain group are
disproportionately affected by a certain principle does not mean that the
principle is necessarily discriminatory. Otherwise, it would be open for men to
claim that the law of murder discriminates against them. If there is a
defensible rationale consistent with the objectives of sentencing and criminal
justice for conferring the guilty plea then the discount will not be relevantly
discriminatory. As is noted earlier, the utilitarian theory of criminal justice
and sentencing supports the discount on the basis of the cost savings to the
community.
5.3 Interference
with Legal Rights
The
third main criticism of the discount is that it dilutes several rights and
freedoms including `the right to require the prosecution to prove guilt, the
right to trial in open court, and most fundamentally the right not to be
subjected to unfair pressure in determining how to plead to the charges.[66]
Some of these rights are now contained in the Human Rights
Act 1998
(UK).[67]
This
criticism of the discount is not persuasive. All rights, whether moral of legal, including
those supposedly being founded on a deontological picture on morality, are
subject to some qualification.[68]
Even Ronald Dworkin, perhaps the leading deontological rights philosopher, who
urges us to take rights ever so seriously, accepts that it is appropriate to
infringe on a right when it is necessary to protect a more important right, or
to ward off some great threat to society.[69]
Similarly, Robert Nozick, another leading rights proponent, acknowledges that
consequentialist considerations can take over in certain circumstances.[70]
Mere assertion of an interest in the language of
rights (that is prefacing an interest - such as life, property, employment or
putting the prosecution to the proof of its case) with the words `right to'),
does not therefore substantiate the validity of the claim in all circumstances.
In each case, the claim must be balanced against other competing interests to
ascertain its validity. The community has a legitimate interest in establishing
an efficient criminal justice system. We agree that the criminal justice system
does not presently strike a correct balance between the interests of the
accused and that of the community so far as the discount is concerned. However,
we suggest that the reform discussed below will better strike this balance.
6 Proposed
Reform
6.1 Details
of Reform Proposal
The
present situation concerning the guilty plea discount is unsatisfactory. The
State has a strong interest in ensuring that criminal cases are finalised
expeditiously and efficiently. Thus, it makes sense to structure the sentencing
system so that defendants have an incentive to promote this interest. However,
one side-effect of the guilty plea discount is unacceptable. A system that
punishes the innocent violates one of the most, if not the most, cardinal norms
of the criminal justice system. A system which refuses to acknowledge that it has
deliberately implemented principles and practices which significantly increase
the chance of innocent people being punished is even more offensive. Worse
still, is a system which fails to recognise that not all guilty pleaders are
equally guilty. There is a vast difference between the defendant who pleads
guilty after being caught red-handed and the defendant who pleads guilty
despite a tenable or even strong chance of acquittal - the latter has
sacrificed an opportunity to avoid any criminal sanctions whatsoever.
A
different balance needs to be struck between the interests of the State in
ensuring the efficient treatment of criminal cases and the pressure on
defendants to advance their case without penalty. Possible reform in this area
is constrained by the reality that any discount will place pressure on some
innocent accused to plead guilty. We believe that, alarming as it might sound,
the system must accept that some innocent people will plead guilty as a result
of the discount. In light of this, the issue becomes how to best reduce the
harm caused by this unwanted outcome.
We
suggest that the compromise is found in the truth. Defendant's who feel
pressured to plead guilty should be permitted to inform the court of the
reality of the situation and put in a qualified guilty plea. While formally
amounting to a plea of guilty, defendants would be permitted to advance reasons
consistent with innocence. A successful submission would make the defendant
eligible to receive a sentence reduction in excess of the standard thirty per
cent, or so, that is available in most jurisdictions for pleading guilty.
The
plea would commence with the proposition that the reason the defendant pleads
guilty is because of the guilty plea discount. The defendant would then be able
to advance arguments consistent with innocence as part of the plea material.
This material would obviously vary considerably in each case, but would include
submissions that certain items of evidence were not cogent (for example, in the
case of identification evidence) or were inadmissible (for example records of
interview).
Size of Discount to be
Stated
We also suggest that when a discount is conferred that that fact and the size of the discount should be expressly acknowledged by the sentencer. To this end, we endorse the reasons advanced by Kirby J:
I remain of the opinion that where a "discount" for a particular consideration relevant to sentencing is appropriate, it is desirable that the fact and measure of the discount should be expressly identified. Unless this happens, there will be a danger that the lack of transparency, effectively concealed by judicial "instinct", will render it impossible to know whether proper sentencing principles have been applied. Moreover, if the prisoner and the prisoner's legal advisers do not know the measure of the discount, it cannot be expected that pleas of guilty will be encouraged in proper cases, although this is in the public interest as I have shown. Knowing that such a discount will be made represents one purpose of such discounts. Unless it is known it may not be possible for an appellate court to compare the sentence imposed with other sentences for like offences or to check disputed questions of parity (emphasis added).[71]
Size of Discount
Further,
consistent with the rationale for the discount, the biggest discounts should be
given for the early pleas. In terms of the size of the discount, the practice
of a discount in the order of one-third for an early guilty plea should
continue. Where a defendant enters a qualified guilty plea and establishes a
reasonable defence we suggest that a discount in the order of another one-third should be available.
Thus, cumulatively a discount in the order of two-thirds would be available
where an offender enters an early guilty plea and has a reasonable chance of
acquittal. Where the strength of the defence is less than reasonable, the size
of the discount (for the qualified plea component) would obviously be less than
one-third.
A
discount in the order of two-thirds may seem excessive. However, a defendant
who at early stage gives up his or her chance of acquittal sacrifices much.
Further, it should be noted that it is not extreme on the basis of current
sentencing practice. Although, sentencers do not state the size of a discount
where mitigatory factors are established, at least in theory, a similar
discount would apply to, say, a defendant who pleads guilty at an early stage
and assists authorities[72]
or enters an early guilty plea and is remorseful.[73]
Admittedly,
this solution is less than the ideal. But it is more ideal than the current
system.
6.2 Response
to Likely Criticisms of Reform
Punishing those claiming to be Innocent
Three
main criticisms are likely to be made of the proposed reform. The first is
theoretical, the other two are pragmatic. We deal with the theoretical one
first.
At
the jurisprudential level, it will to many seem indefensible that a sentencer
can inflict punishment on a person who refuses to acknowledge his or her guilt.
In most cases, an admission of guilt is, at least ostensibly, a necessary
precursor to sentencing. The need for this is most readily explicable by the
desire to avoid punishing the innocent. A system which acknowledges that it
sometimes punishes people who have not committed criminal offences seems
unacceptably flawed.
There
are several responses to this. First, the criminal law already punishes people
who claim to be innocent. Sentencers
have no difficulty inflicting punishment on accused who proclaim their
innocence even after an adverse verdict is reached against them. Granted that
in such circumstances defendants have been `found' guilty following an
assessment of the relevant evidence. However, in principle this is not a
relevant basis for differentiating from those who plead guilty because of the
discount. In both cases the defendants maintain innocence in the real sense,
but are either deemed guilty or ultimately plead guilty as a result of
principles or practices of the criminal justice system.
Secondly,
it is illusory to pretend that the criminal process does not at times punish
the innocent. It
is inevitable, given the fallibility of any institution, that any criminal
justice system will at times inflict punishment on the innocent. A recent
scandal centered upon a corrupt Los Angeles police officer Rafael Perez
provides a spectacular recent example of this. As part of a plea bargain with
prosecution authorities after Perez was caught stealing cocaine from a police
evidence, Perez admitted that he `perjured himself at least 100 times in court,
wrote more than 100 false reports and stole as much as $80,000 from the people
he arrested'.[74] As a result of Perez's
admissions dozens of convictions were set aside.[75] Most of the convictions
involved charges of possession of drugs or firearms. According to Perez, during
the mid to late 1990s, he and his partner Nino Durden regularly planted drugs
and weapons on innocent people and then lied on their reports and in court to
secure convictions.
The problem of punishing the
innocent could be largely circumvented by increasing the amount and level of
safeguards in the criminal justice process. For example, the standard of proof
could be raised from beyond reasonable doubt to, say, beyond any possible
doubt; admissible evidence could be limited to direct observations of the
relevant act; and a confession could be made a mandatory pre-condition to a
finding of guilt. However, such a response is not feasible. It would be
self-defeating since it would result in more innocent people being harmed than
is presently the case as a result of our imperfect criminal justice system. A
justifiable system of criminal law and punishment should have at its foundation
some theory of morality, given that the prohibition against punishing the
innocent is not a freestanding principle. The broader principle which logically
flows from this prohibition is that people who are not blameworthy in any way
should not be harmed. The effect of radically increasing the amount of legal
safeguards in criminal cases would result in very few guilty people being
punished and thereby an increase in the amount of crime and innocent people
being harmed.
The unpreparedeness of the
system to implement more extensive safeguards to prevent punishing the innocent
signifies tacit acceptance of the fact that sometimes the good of the community
outweighs the damage caused by punishing some innocent people. There is no
reason in principle that this determination and sentiment should be confined to
the operation of criminal procedure and rules of evidence and not extend to
sentencing principles and practices, such as the guilty plea discount.
It should be noted that
tacit endorsement of the preparedness to punish the innocent in some
circumstances applies irrespective of whether one adopts a utilitarian or
retributive theory of punishment.[76]
Retributivists
who advocate punishment are relevantly like utilitarians who will sacrifice the
welfare of innocents for the greater good, since retributivists are willing to
trade the welfare of the innocent who are punished by mistake for the greater
good of the punishment of the guilty. While never intending to punish the
innocent, they nevertheless do not choose to withdraw their support for
arrangements that have this result.[77]
Acknowledging the fact that
some innocent people will be punished and that as a community we, at least
implicitly, accept this state of affairs is a first step to implementing
meaningful and constructive sentencing reform.
For
those who still refuse to accept a system that punishes those who assert their
innocence, they can presumably take some solace in fact that accused who enter
a qualified plea have `formally' acknowledged guilt.
Increased Court Time Establishing Tenable Defence
The
first pragmatic potential difficulty with the reform proposal is that the
amount of court time involved in ascertaining the merits of the defence case
might be so extensive as to undermine the efficiency justification for the
guilty plea discount. This problem could be circumvented by placing a ceiling
on the length of time available to defence counsel to outline weaknesses of the
defence case. However, it is unlikely that this would be necessary. An
extensive hearing into the exact strength of the defendant's case would be
wasteful and unnecessary. The purpose of the inquiry is not to determine guilt
or innocence - this has already been resolved by the plea of guilty. The aim is
simply to determine if the accused has a tenable defence. In most circumstances
this can be determined quite readily by submissions from the bar table. In
other cases it might require the tendering of evidence in rebuttal of key
prosecution evidence. However, this is no different to the manner in which
mitigating considerations are already advanced.[78]
And even though some pleas in mitigation already take several hours, and
sometimes even days, the vast majority of pleas are finalised expeditiously. It
is not anticipated this will change as a result of the proposed reform.
Reform Could Result in More Guilty Pleas
The
availability of even a more substantial discount for pleading guilty would
logically place even more pressure on offenders to plead guilty. However, this
is not necessarily undesirable. The weighing process, between the harm caused
by wrongful convictions and cost savings to the community, has already been
conducted earlier. While the risk of punishing the innocent is increased, the
other side of the scales is also considerably heavier - even more guilty people
are likely to plead guilty and hence greater costs savings are likely to be
experienced by the community. There is now also the additional consolation that
the innocent will be punished less severely.
7 Conclusion
The manner in which the guilty plea discount
operates is unsatisfactory. While there are strong reasons for maintaining the
discount, it is wrong that the system does not acknowledge that the effect of
the plea places pressure on defendants to plead guilty. This wrong is
compounded by the fact that the system has no mechanism for providing an extra
discount to defendants who have a tenable defence.
The system would be improved by introducing the
notion of a qualified guilty plea. While formally
amounting to a guilty plea, the defendant would be permitted to advance
submissions consistent with innocence as part of the plea in mitigation. If the
sentencer is persuaded that the defendant had a tenable chance of an acquittal,
a penalty discount in excess of that available for merely pleading guilty would
be conferred.
Admittedly,
the proposed reform is not without its difficulties. Most notably, it would
result in even more pressure on defendants to plead guilty. However, this
disadvantage would be outweighed by the benefits of the reform, which are
considerable. The proposed reform would make the sentencing system more
transparent, by acknowledging that the guilty plea discount does put pressure
on the innocent to plead guilty - in some cases invariably leading to the
conviction of the innocent. It would acknowledge that all defendants who plead
guilty are not `equally guilty'. Finally, it would result in a higher portion
of cases finalised by way of guilty plea - equating to more cost savings to the
community.
There
is of course a degree of speculation concerning whether the advantages of the
proposed reform will outweigh disadvantages. This is the case with every reform
proposal. One can never be certain of how it will work until after it is
implemented. The proposal suggested in this paper concerns fundamental human
interests. Hence, it obviously makes sense to tread slowly. Thus, we suggest
that the reform should be introduced on a trial basis in a controlled manner.
Consideration could be given to, for example, trialing the process for a
defined period, say 12 months, in a designated Magistrates' Court. After the
trial period, relevant data from the Court (including the guilty plea rate, the
average time spent on each plea, and the severity of sentences that are
imposed) should be compared to that of Magistrates' Courts in the region. Interviews
with lawyers, magistrates, prosecution officials and defendants should also be
conducted to gain insight into how the reforms were received.
* Both from the School of Law, Deakin University.
[1] J Willis, `Sentencing Discount for Guilty Pleas' (1985) 18 ANZJ Crim 131, 143.
[2] Cameron v R [2002] 187 ALR 65.
[3] For comments regarding the relevance of remorse, see M Bagaric and K Amararsekara, `Feeling Sorry? Tell Someone Who Cares: the Irrelevance of Remorse in Sentencing’(2001) 40 Howard Journal of Criminal Justice (UK) 364.
[4] This issue is expanded in section 3.
[5] In many cases, the discount for the innocent will in fact be less because they are unable to claim additional discounts based on a show of remorse.
[6] See section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 (UK) (this replaced section 48 of the Criminal Justice and Public Order Act 1994 (UK) which was expressed in the same terms). The relevant statutory provisions in Australia are: Crimes Act 1914 (Cth), s 16A(2)(g); Crimes Act 1900 (ACT), s 429A(1)(u); Penalties and Sentences Act 1992 (Qld), s 13; Crimes (Sentencing Procedure) Act 1999 (NSW), s 22; Sentencing Act (NT), s 5(2)(j); Criminal Law (Sentencing) Act 1988 (SA), s 10(g); Sentencing Act 1991 (Vic) s 5(2)(e); Sentencing Act 1995 (WA), s 8(2).
[7] [1986] VR 863, 867. This approach was also adopted by the Spigelman CJ (with whom other members of the Court agreed) in R v Thomson (2000) 49 NSWLR 383 who stated that there are ‘benefits to the criminal justice system as a whole’ that result from a guilty plea (at 411, para 115). His Honour further noted that the ‘public interest served by encouraging pleas of guilty for their utilit