On October 8, 2010, the former Chief Executive Officer of Oceanic Bank International Nigeria PLC, Mrs. Cecilia Ibru was sentience to eighteen months imprison by the Federal High Court Lagos, Nigeria for  committing various economic and financial crimes.

The Economic and financial Crimes Commission (EFCC) had charged her with a twenty-five count criminal information bothering on financial crimes before the Court.  However, she entered into a plea bargain with the prosecution and pleaded guilty to a lesser three-count charge. The Court thereafter, convicted Ibru on the three-count charge and ordered the forfeiture of her assets amounting to about N191billion. She was sentenced to six months on each of the three counts which are to run concurrently. In effect, Mrs. Ibru would only spend six months in jail.

Few years ago, former Governor Alamieyeseigha of Bayelsa  State  was sentenced to 12 years in prison on a six -count charge that bothered on corruption and other economic offenses. He was sentenced two years on each count but all sentences ran concurrently. In accordance with the Criminal Procedure, the sentences ran from the day he was arrested and detained. He was arrested and detained in 2005.

In order to receive a lighter sentence, the former Governor entered into a plea bargain with the Economic and Financial Crimes Commission (EFCC), gave up his right to trial and pled guilty to the charges. Rather than serving a prolonged prison term if convicted, he accepted the EFFC’s offer of guilty plea. However, because he had almost completed two years in jail before accepting the bargain, he was released few days after his conviction by the Court.

 Expectedly, the release of the Former Governor  as a result of the plea bargain drew a lot of sharp criticisms from the general public and some notable members of the Nigerian Bar Association (NBA).  Many raised objections to the plea bargain because they felt that the offer and the subsequent conviction and release were nothing but a slap on the wrists for such a very serious crime.

They felt also that the whole process was meaningless and unnecessary. Overall, the critics who included a one-time Justice of the World Court believed that plea bargaining and the weightless conviction sent a wrong kind of message for such a serious crime. They also viewed it as a way of letting criminals off lightly.

Other beneficiaries of plea bargaining in Nigeria included Tafa Balogun, the former Inspector- General of Police and Mr. Lucky Igbinedion, the former Governor of Edo State.

The above example of plea bargaining points out the significance of the new process in Nigeria’s criminal justice system and what to expect in the years to come. Even though, it was forbidden in most of Europe a long time ago, plea bargaining has steadily inched into the criminal justice systems of several countries in recent times. While it may be new to Nigeria’s justice system, the process is now very popular in other common law countries.

An important aspect of plea bargain is that it usually gives a defendant lighter penalty than he would receive if he was found culpable of all charges after a full trial. Most defendants face a 90 percent chance of conviction if they go to trial. Few years ago, I was a co-counsel in a celebrated case in the U.S on a Nineteen - count criminal indictment, one of which carried a maximum punishment of life imprison including forfeiture of our client’s property. Our client would also forfeit cash worth over one Million U.S Dollars found in his residence.

Using the local rules and practice of the Federal Rules of Criminal Procedure, we entered into a negotiated agreement with the U.S Attorney’s office as a result of which seventeen out of the nineteen charges including the ones with severe penalties  were dismissed. And in the spirit of fairness, a portion of the cash amount found in his house was also released to his family. In return, our client pled guilty to the remaining two charges which obviously, carried much lighter penalties and conviction.

When plea bargaining, a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend to the court a particular sentence or agree not to oppose the defendant’s request for a particular sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. In most cases, plea bargaining must take place before trial unless the parties show good cause for the delay.

While plea bargaining is a new trend in Nigeria, the practice is considered a common phenomenon in the U.S legal system and it can be argued that the American criminal justice system would simply cease to function without plea bargaining,

According to Dirk Olin, plea bargain is a prosecutorial tool used only episodically before the 19th century. “In America,’’ Fisher says, ‘’it can be traced almost to the very emergence of public prosecution. Although not exclusive to the U.S., it developed earlier and more broadly here than most places”. “But because judges, not prosecutors, controlled most sentencing, plea bargain was limited to those rare cases in which prosecutors could unilaterally dictate a defendant’s sentence.

Not until the crush of civil litigation brought on by the explosion of personal injury cases in the industrial era did judges begin to appreciate the workload relief plea bargaining promised”.  “In other words, plea bargaining is arguably another outgrowth of late-19th-century industrialization”. (Dirk Olin, Plea Bargain, The New York Times Magazine, September 29, 2002). Black’s Law Dictionary defines it as follows: “[the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

A “charge bargain” occurs when the prosecutor allows a defendant to “plead guilty to a lesser charge,” or to only some of the charges that have been filed against him while a “sentence bargain” occurs when a defendant is told in advance what his sentence will be if he pleads guilty. In U.S, England and Wales and Australia, it is allowed only to the extent that the prosecutors and the accused can agree that the accused will plead guilty to some charges and the prosecutor will drop the remainder.

However, while both the prosecutor and the Defendant can bargain on the charges, they do not have the power to decide what the appropriate penalty would be. In U.S, less than ten percent of criminal cases go to trial.

A defendant cannot bargain on the issue of penalty which is exclusively determined by the presiding judge even though, it is the prosecutors that make sentence recommendation to the judge. The judge, however, is not bound to follow the prosecution’s recommendation. The judge must agree to the result of the plea bargain before accepting the plea. This implies that the judge reserves the prerogative to reject a bargain if he feels uncomfortable with it or if he is of the opinion that it was not intelligibly and voluntarily entered into by the accused.

A guilty plea must be an informed choice entered into voluntarily by the defendant. Due process of law prohibits all the government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.

The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. However, because defendants who plead guilty would waive three fundamental constitutional rights- the rights to trial, confront and cross examine the accusers and be free from self incrimination including exculpatory or impeachment evidence that tends to establish the factual innocence of the accused, the Court record must disclose that the accused person voluntarily and knowingly pled guilty to the charges.

To this effect, the validity of a plea bargain is dependent upon three essential components: knowing waiver of rights, voluptuary waiver and a factual basis to support the charges to which the defendant is pleading guilty. Courts will usually take proofs to ensure that the above three components are satisfied before accepting the recommendation of the prosecution.

In practice, effective assistance of counsel in criminal actions also includes an ability to bargain and negotiate on behalf of the accused person. Effective assistance of counsel in criminal cases can also involve a situation where an attorney may advise his client to agree to testify against a co- defendant or to provide evidence that incriminates a co- defendant.

Under this arrangement, the prosecutor may agree to either dismiss or reduce the charges against a defendant if he agrees to testify against his codefendant as a prosecution witness. Many have dubbed this arrangement as being analogous to bribery but the U.S Courts have ruled that the federal bribery statute did not apply to the federal government (U.S Attorneys) with respect to plea bargains. However, when the negotiated agreement fails or the parties fail to reach an agreement or the agreement is revoked by either or both parties, statements or confessions made by the accused during the negotiation are inadmissible against the defendant during trial.

The process has not gone without challenges even in the jurisdictions where it is very popular. Many perceive the process as a system in “which bargaining replaces evidence as the paramount determinant of guilt or innocence” ( Oxford ). According to George Fisher, a former prosecutor now at Stanford Law School : ‘’The general public tends to regard plea bargaining as too lenient”.

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals in U.S recommended that it should be abolished but the recommendation suffered a set back when the U.S Supreme Court ruled that the process is an “important and necessary component of the American system of justice” and subsequently called for its encouragement. “If every case went to jury trial,” wrote Mirsky and Kahn (1997) in their article in The American Prospect, “resources would have to multiply by “many times” (p. 56). Thus a provision must be in place to administer justice in a reasonable, timely and cost effective manner. This is the concept of plea bargaining.

One of the major advantages of plea bargaining is that it helps prosecutors and the Courts in the effective administration of justice. In all criminal prosecutions, the accused shall enjoy the right to a speedy trial because justice delayed is justice denied. The right to speedy trial cannot be compromised or negotiated away. Speedy trial is a constitutional and common law right.

The constitutional guarantee of speedy trial is intended to ensure that defendants are not subjected to unreasonably lengthy confinement before trial. In the U.S for example, when prosecutors violate this principle or fail to bring a case to trial for an “unreasonable” period of time, Courts may be inclined to grant a dismissal of the action.

Our Courts are not equipped to handle cases speedily and if the defendants are to be kept indefinitely in prison, not only would it violate their rights, it would also strain and impact tax payers money. In addition, if a practice offends the constitution, it ought to be driven into the shadows. To this effect, the prosecutor may offer the defendant a plea bargain in order to “get on with his life”.

A very damaging effect of plea bargain in the U.S however, is that when a defendant pleads guilty to a felony and he is convicted, he would lose his right to vote, access to federal student aid, and if they are non citizens, being deported. Writing on the advantages of plea bargain, Wikipedia argues that “the process allows criminals who accept responsibility for their actions to receive consideration for their remorse and for not causing limited resources to be expended in further investigating and litigating their case”. This is why in general, most of those pleas involve a deal that reduces punishment.

According to the Division for public education of American Bar Association, plea bargaining is prevalent for practical reasons: Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve. The prosecution saves the time and expenses of a lengthy trial, both sides are spared the uncertainty of going to trial, the court system is saved the burden of conducting a trial on every crime charged.

As explained in Schmalleger (2001), such a process is beneficial to all parties. “A plea bargain is in the best interest of a defense team if they feel they cannot win an acquittal and prosecutors will choose to plea bargain if they feel their evidence is weak. The accused benefits from the possibility of “reduced or combined charges, lessened defense costs, and a lower sentence than might have otherwise been anticipated” (p. 312). The victims also begin to restore their lives to some sort of normalcy. One strong point in favor of plea bargain is that it assures a conviction while reducing the Judges’ dockets and lightening the prosecutors’ caseload.

In conclusion, while plea bargain is a welcome development, it should not be restricted to the rich and the powerful alone neither should it be discriminately applied. As a functional part of access to justice, it should be made available to all defendants in criminal cases, particularly, first offenders, irrespective of class and status. If we do not have plea bargain as an option in our criminal justice system, the courts and prisons would continue to be so overloaded with cases that nothing would ever get done and justice delayed is justice denied.

 

 

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