Ani Comfort Chinyere (Mrs.)

LL.B (Hons.) BL; LL.M., Ph. D

View profile: https://bit.ly/3cv6UY2

 

INTRODUCTION

Plea bargain is one of Nigeria’s attempts at extending the concept of restorative justice within the criminal justice system. Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders[1].

Conventional criminal justice is retributive in nature and the most dominant source of the criticism against plea bargaining can be traced to retribution as a penal philosophy. Retributivists condemn bargain justice plea bargains and immunity deals as violating a number of conditions of just punishment[2]. Under retributivism, “punishment is justified because people deserve it.[3] In the words of John Rawls,

What we may call the retributive view is that punishment is justified on the grounds that wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. The state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.[4]

Statistics from the United States reveal that approximately ninety percent of criminal convictions in the United States result from guilty pleas, the overwhelming number of which are through plea bargains.

Plea bargaining made its debut in Nigeria in year 2004 in the celebrated case of FRN v. Nwude and others.[5] Chief Nwude, Mrs. Amaka Anajemba and Chief Okoli alongside their four companies were arraigned before an Abuja High Court in 2004 for swindling a Brazilian bank, Banko Noroeste S.A., Sao Paulo, Brazil the sum of $242 Million[6]. One of the accused persons Amaka Anajemba changed her plea to a guilty plea in the middle of the trial. The others followed the same trend. Chiefs Emmanuel Nwude and Nzeribe Okoli were both sentenced to a combined prison term of 37 years. They were to forfeit 110 Million Dollars to the Brazilian bank and pay 11.5 Million Dollars to the Federal Government. Chief Nwude got 25 years while Okoli got 12 years. The third accused person, Mrs. Amaka Anajemba was sentenced to two and half year imprisonment.[7] They were also to forfeit their property, including houses and vehicles.

A number of influential Nigerians have benefited from plea bargain, especially when charged with corruption and financial crimes. In 2005, former Inspector-General of Police Mr.Tafa Balogun pleaded guilty to an amended eight count charge of corruption and embezzlement of public funds to the tune of 10 Billion Naira. He gave up most of the funds and got just six months for the offence which attracts a maximum of five-year jail term following a touching allocutus rendered by his lead counsel. [8] 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, starting from the day he was arrested and detained.[9].

Also in October 2010, the Economic and Financial Crimes Commission (EFCC) charged the former Chief Executive Officer of Oceanic Bank International Nigeria PLC, Mrs. Cecilia Ibru with a twenty-five count criminal information bothering on financial crimes.  She entered into a plea bargain with the prosecution and pleaded guilty to a lesser three-count charge. The Court thereafter, convicted her 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 ran concurrently. In effect, Mrs. Ibru only spent six months in jail.[10]

There is the thinking in some quarters that the use of plea bargaining was being applied wrongly because most of the suspects allowed to make the pleas were paying back a fraction of the money they had stolen.[11] Critics of the concept, in addition to a plethora of arguments also argue that plea bargain operates as immunity against punishment. It is on this milieu that this paper proceeds to interrogate the argument and ultimately make a case that plea bargain should be viewed as a restorative justice model of punishment, which while not making the offender immune from punishment, adopts measures that makes the offender to first of all acknowledge his/her wrong doing, proceed to make amends and also receive conviction and sentence albeit, minimal sentence.

The Concept of Plea Bargaining

Plea bargaining is a concept that originated in the United States of America and has evolved to become a prominent feature of American criminal justice.[12] It has also spread to the United Kingdom, Canada and many other jurisdictions.[13]

 

Plea bargaining is a process whereby a person accused of a crime pleads guilty to a specified charge in return for an agreed sentence, recommended to the judge, or the dismissal or reduction of other charges. Typically, defense counsel and the prosecutor negotiate the charges to be brought. If the bargain pertains to the sentence to be meted out, a judge may also participate unless barred from doing so.[14]

Over the years, considerable objections grew against designating the practice in any way that implied that justice could be purchased at the bargaining table. Consequently, some use a wider term as against simple bargaining by an accused and merely pleading guilty in exchange for a reduced penalty. Other more neutral terminologies and expressions that involve the consideration of broader issues include “plea discussions”, “resolution discussions”, “plea negotiations” and “plea agreements”.[15]

Plea bargaining embraces such practices as charge bargain, sentence bargain and agreements as to the facts of the offence and the narrowing of issues in order to expedite the trial. Although they may sometimes involve a judge, these private discussions occur primarily between the prosecutor and the accused and his lawyer.

Charge Bargain- 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.[16] For instance, in return for dismissing a charge for murder, a prosecutor may accept a guilty plea for manslaughter.

Charge discussions may include the following:

• the reduction of a charge to a lesser or included offence
• the withdrawal or stay of other charges
• an agreement by the prosecutor not to proceed on a charge
• an agreement to stay or withdraw charges against third parties
• an agreement to reduce multiple charges to one all-inclusive charge
• the agreement to drop certain counts and proceed on others, and to rely on the material facts that supported the dropped counts as aggravating factors for sentencing purposes[17]

Sentence Bargain-A sentence bargain occurs when a defendant is told in advance what his sentence would be if he pleads guilty. If for example the defendant is facing serious charges and is afraid of being hit with the maximum sentence. Sentence bargains can only be granted if they have been approved by the trial judge.[18]

Sentence discussions may include the following:

• a recommendation by a prosecutor for a certain range of sentence or for a specific sentence
• a joint recommendation by a prosecutor and defence counsel for a range of sentence or for a specific sentence
• an agreement by a prosecutor not to oppose a sentence recommendation by defence counsel
• an agreement by a prosecutor not to seek additional optional sanctions, such as prohibition and forfeiture orders
• an agreement by a prosecutor not to seek more severe punishment
• an agreement by a prosecutor not to oppose the imposition of an intermittent  sentence rather than a continuous sentence
• the type of conditions to be imposed on a conditional sentence.[19]

No matter the type adopted, the end result is that the accused person is likely to get a lighter sentence for the offence if he pleads guilty to the charge.

Although charge bargaining and sentence bargaining are the most common forms of plea bargaining, there is also the fact bargaining. In fact bargaining, a prosecutor agrees not to contest a defendant’s version of the facts or agrees not to reveal aggravating factual circumstances to the court. This form of bargaining is likely to occur when proof of an aggravating circumstance would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines[20]

 

A prosecutor also may agree to provide leniency to a defendant’s accomplices, withhold damaging information from the court, influence the date of the defendant’s sentencing, arrange for the accused to be sent to a particular correctional institution, request that an accused receive credit on the sentence for time served in jail awaiting trial, agree to support the defendant’s application for parole, attempt to have charges in other jurisdictions dismissed, arrange for sentencing in a particular court by a particular judge, provide immunity for crimes not yet charged, or simply remain silent when a recommendation otherwise might be unfavourable.[21]

 

There are two further classifications of plea bargaining, as endorsed in International jurisprudence, namely, express and implicit plea bargaining. Express bargaining occurs when an accused or his lawyer negotiates directly with a prosecutor or a trial judge concerning the benefits that may follow the entry of a plea of guilty. Implicit bargaining, on the other hand, occurs without face-to-face negotiations. In Implicit bargaining, trial judges especially, establish a pattern of treating accused who plead guilty more leniently than those who exercise the right to trial, and the accused therefore come to expect that the entry of guilty pleas will be rewarded.[22]

The Concept of Punishment

Punishment is seen as one of the ideal legal element of a crime. For a behavior to be considered a crime, there must be a statutory provision for punishment or at least the threat of punishment.[23]  Without the threat of punishment, law is unenforceable and is therefore not criminal law.[24]

Punishment is the authoritative imposition of penalty for criminal wrongdoing .The authority may be either a group or a single person, and punishment may be carried out formally under a system of law or informally in other kinds of social settings such as within a family.[25] The Criminal Code of the Russian Federation defines Punishment[26] as a measure of state compulsion assigned by a court’s judgment. Punishment is applied to a person who has been found guilty of the commission of a crime. It consists of the depreciation or restriction of the rights and freedoms of the person.

Rationale for Criminal Punishments

Criminologists believe that punishments should be guided by some underlying principles. The guiding principle of the new Criminal Law of Lagos State 2011, are amongst other things, the need to ensure that the sentence prescribed for an offence serves any of the following purposes:

• Rehabilitation;
• Restoration;
• Deterrence;
• Prevention; and
• Retribution

Retribution- Right from biblical times,[27] retribution was the dominant justification for punishment. Retribution is hinged on two main principles, each of which can be invoked to apply it- Revenge and Just deserts.  Revenge implies paying back the offender in his own coin, and making the offender to suffer for what he has done wrong. Just desert goes beyond vindictive revenge, and is devoid of the emotional element of revenge. The philosophy behind just deserts is that offenders should be punished automatically because they deserve to be punished for the crime they have committed. It is also based on the principle of proportionality of punishment[28].

 Incapacitation- This is the removal or restraint of the freedom of offenders. Incapacitation makes it virtually impossible for offenders to commit crimes during the period of restraint. Forms of achieving it include:

• Banishment or exile
• Deportation
• Imprisonment
• Capital punishment

Deterrence- This rationale sees punishment as a way of preventing crime. It can be special or specific on a particular individual or general deterrence on the general public.-

Specific deterrence focuses on the individual in question with the aim of discouraging the criminal from future criminal acts by instilling an understanding of the consequences in him.[29]

General or indirect deterrence focuses on general prevention of crime by making examples of specific deviants. The individual actor is not the focus of the attempt at behavioral change, but rather receives punishment in public view in order to deter other individuals from deviance in the future.[30]Classical theorists like Cesare Beccaria spear headed this theory.

Rehabilitation– Rehabilitation aims to correct the personality or behavior of the convicted offender, through education, vocational, or therapeutic treatment with the major goal of returning him/her to society as a law abiding citizen. The point of rehabilitation is to remove a problem and then strengthen the weakened area.
Implicit in this notion of rehabilitation is that the individual has become functionally defective.  An example of punishment as rehabilitation, then, would involve the idea that the bad habit or bad behavior of the offender needs to be broken, and new habits cultivated.[31]

Restoration- Until recently, the criminal justice has relegated the victims and their survivors to the background, without paying attention to their plight. The system rather focused on punishing the offender for a crime committed against “the state”. Crime is seen primarily as an act against the state rather than an act against the individual. There is little or no regard for the victim of the offence. At best, he or she is used mainly as a witness without having any influence in the quantum of punishment. The criminal justice system pays particular attention to the rights of the accused, determining his guilt or innocence and punishment where necessary. Justice is actually supposed to be three way traffic: justice for the offender, the state and the victim.[32]

Restorative Justice

The practice of plea bargain cannot be divorced from the principles of restorative justice.

Restorative programmes are characterized by four key values:

1. Encounter: Create opportunities for victims, offenders and community members who want

to do so to meet to discuss the crime and its aftermath.

2. Amends: Expect offenders to take steps to repair the harm they have caused
3. Reintegration: Seek to restore victims and offenders to whole, contributing members of

society.

4. Inclusion: Provide opportunities for parties with a stake in a specific crime to participate in

its resolution.[33]

Justice is being done in a restorative manner when it.

• Focuses on crime’s harm rather than rules broken.
• Shows equal concern for victims and offenders and involves both.
• Works toward restoring victims, empowering them, and responding to their needs as the victims themselves see them.
• Supports offenders while encouraging them to understand, accept and carry out their obligations.
• Recognizes that while offenders’ obligations may be difficult, they should not be intended as pain.
• Provides opportunities for direct or indirect dialogue between victims and offenders – as appropriate.
• Finds meaningful ways to involve the community and to respond to the causes of crime in the community.
• Encourages collaboration and reintegration rather than coercion and isolation for the offenders.
• Pays attention to unintended consequences arising from restorative justice efforts.
• Respects all parties in the conflict – victims, offenders, and justice colleagues[34].

Restitution

In equity, restitution is a remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she  would have been had he the breach not occurred.[35] It is the act of restoring anything to its rightful owner, the act of making good or giving equivalent for any loss, damage or injury; and indemnification. In criminal law, there are restitution programs under which an offender is required to repay the victim or society as a condition of his sentence. Instead of completely ignoring the harm done to individual victims, restitution acknowledges and attempts to repair the injury they have suffered. Whereas retributive and rehabilitative responses fail to address the harm inflicted on victims, restitution, when sought as an outcome of a restorative process, has as its primary motivation reparation to the victim. Thus, restitution is said to better satisfy a victim’s need for vindication, as the offender must personally acknowledge and account for the offence[36]. Research carried out on victims of crime show that most victims of crime in Nigeria prefer restitution and compensation to the sentencing of their victimizers to imprisonment or fine.[37]

Plea bargaining enables the prosecutor to get his or her desired convictions and in addition, he proceeds of crime are forfeited and restitution is made to victims in appropriate cases.[38]

Plea Bargaining and Compounding of Felonies

Section 339 of the Criminal Procedure Code[39] (CPC) applicable to the northern parts of Nigeria, designates some offences as offences that may be compounded, and the persons who may compound such offences.[40] The offences mentioned in Part I of Appendix C may be compounded without the leave of court at any time before the accused person has been convicted by the court or committed for trial at the High Court[41]. Offences under this category include: causing hurt; assault or use of criminal force; mischief, when the only loss or damage caused is loss or damage to a private person; criminal trespass; criminal breach of contract of service, and so on[42].

The offences mentioned in Part II of Appendix C may be compounded before the accused person has been convicted by a court or committed for trial only with the consent of the court which has jurisdiction to try the accused person for the offence.[43] Some of the offences in Part II include: Grievous hurt on provocation, Grievous hurt without provocation, wrongfully restraining or confining any person, unlawful compulsory labour, uttering words or making gestures intending to insult the modesty of a woman, and so on.[44]

 

The Criminal Procedure Act (CPA) applicable to the southern parts of Nigeria has an entirely different provision on compounding. Section 127 of the CPA provides as follows:

Any person who asks, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue, or delay a prosecution for a felony, or will withhold any evidence thereof, is guilty of an offence.

If the felony is such that a person convicted of it is liable to be sentenced to death or imprisonment for life, the offender is guilty of a felony, and is liable to imprisonment for seven years. In any other case the offender is liable to imprisonment for three years.

Section 128 adds that:

Any person who, having brought, or under pretence of bringing an action against another person upon a penal Act, Law or Statute in order to obtain from him a penalty for any offence committed or alleged to have been committed by him, compounds the action without the order or consent of the court in which the action is brought or is to be brought, is guilty of a misdemeanour and is liable to imprisonment for one year.

Section 128 stretches the definition of compounding further to cover situations of compounding offences without the consent of the court.

According to the Black’s Law Dictionary, compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.[45] From this definition, the procedure for plea bargaining is clearly outside the contemplation of the provisions against compounding of offences. The Black’s Law Dictionary and section 127 contemplate situations where a person asks or receives a benefit to prevent, stop or in any other way, frustrate the prosecution of an offence. There have always been provisions in our procedural laws on amendment and substitution of charges[46].  The difference with that procedure and plea bargain is that under sections 162 and 163 of the CPA, only the prosecutor can do so at his discretion. Furthermore, section 180 (1) of the CPA provides that when more than one charge is made against a person and a conviction has been had on one or more of them, the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court on its own motion, may stay trial of such charge or charges.

Where it is as a result of any confession obtained perhaps as a result of promise or threat, it may not be made known to the court as the sections did not state that he has to give reasons for the action. Moreover, the Constitution[47] which is superior to the CPA expressly authorizes the Attorneys-General in sections 174 and 211 to institute, undertake, take over, continue and to discontinue criminal proceedings against any person. It is worth noting that section 180 (1) did not state whether the prosecutor is one from the Attorney-General’s office or from the police, EFCC, etc. This therefore enables any prosecutor to withdraw any charge against a person after securing a conviction on one or more of the charges.

Plea Bargaining and the Evidence Act

By virtue of the provisions of section 28 of the erstwhile Evidence Act[48], the confessions of a suspect, made as a result of any inducement, threat, or promise by a person in authority; where the suspect has grounds to think that he would gain an advantage or avoid any temporary evil by making it, is irrelevant during criminal proceedings. This means that such will make the confession inadmissible.

This provision has been substituted with section 29 (2) of the new 2011 Evidence Act, which provides that:

      (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained –

• by oppression of the person who made it; or
• in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution  proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section”.

Initially the former Act makes confessions obtained as a result of inducement, threat, or promise by a person in authority; where the suspect has grounds to think that he would gain an advantage or avoid any temporary evil by making it, irrelevant. Currently, with the new provision in section 29 (2), inducements and promises by a person in authority can no longer make a confession irrelevant.  This provision lends support to the plea bargaining process.

It is equally important to state that there has always been provision in our laws for the accused person to plead guilty to a charge or charges leveled against him in a court of law. Where an accused person does so, the trial judge is required to verify the facts admitted by the accused person and ensure that it amounts to an admission of all the essential elements of the offence before proceeding to conviction and sentence.[49]

This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. In Continental legal systems, someone who is accused of a serious crime may confess, but he will nevertheless go to trial. Confession shortens the trial by affecting the quality of the evidence, but confession does not eliminate trial[50].

 

Statutory Basis for Plea Bargaining in Nigeria

A semblance of plea bargaining was introduced in Nigeria by section 14 (2) of the Economic and Financial Commission (Establishment Act), 2004. The section provides:

“Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria 1999, the Commission may compound any offence punishable under this  Act by accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence”

Up until 2007 when the Lagos state enacted the Administration of Criminal Justice Law, 2007, as amended in 2011, there was no concrete statutory basis for plea bargaining in Nigeria. Section 76 of the ACJRRL 2011 makes provision for plea bargain and sentence agreements [51]. By the provisions of section 75, the Attorney General of the State has the power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process. Section 76 makes provisions for plea and sentence agreements. The prosecutor and a defendant or his legal practitioner may enter into an agreement in respect of –

1. a plea of guilty by the defendant to the offence charged or a lesser offence of which he

may be convicted on the charge

1. an appropriate sentence to be imposed by the court if the defendant is convicted of the offence to which he intends to plead guilty[52].

 

The prosecutor can only enter into a plea or sentence agreement after consultation with the investigating police officer, and the victim, with due regard to the nature and circumstances relating to the offence, the defendant and the interests of the community[53]. The prosecutor where it is reasonably feasible is to afford the complainant or his representative the opportunity to make representations to the prosecutor regarding the contents of the agreement and the inclusion in the agreement of a compensation or restitution order[54].  Such agreements between the parties must be in writing and signed. The presiding judge or magistrate is not permitted to be part of the discussions. He may only be approached by counsel regarding the contents of the discussions and may inform them in general terms of the possible advantages of discussions, possible sentencing option or the acceptability of a proposed agreement. After the prosecutor has informed the court of the agreement reached by the parties, it is the duty of the Presiding Judge or Magistrate to inquire from the defendant to confirm the correctness and the voluntariness of the agreement[55].  After considering the sentence agreed, the presiding Judge or Magistrate may impose the sentence, or impose a lesser sentence[56]. Where he is of the view that the offence requires a heavier sentence, than the one agreed, he is to inform the defendant of his view. The defendant may decide to abide by his plea of guilty and accept the sentence by the Judge or Magistrate, or he may decide to withdraw from his plea agreement. If he does so, the trial precedes de novo before another presiding Judge or Magistrate.[57]

 

The 2005 Administration of Criminal Justice Bill also provides in section 248 (2) for plea bargain.

Section 248 of the ACJ Bill provides thus:

248 (1) Notwithstanding anything in this Act or in any other Act of the national Assembly, the Attorney-General of the Federation shall have the power to receive and consider a plea bargain from any person charged with any offence either directly from that person charged or on his behalf, by way of an offer to accept to plead guilty to a lesser offence than that charged.

(2) Where the Attorney- General is of the view that the acceptance of such plea bargain is in the interest of justice, the public interest and public policy, he may accept such plea and the court seized of the matter shall be so informed and shall proceed to enter a guilty plea to such lesser offence and impose the due punishment accordingly.

(3) When a person is convicted and sentenced under the provisions of subsection  (1) of this section, he shall not be charged or tried again on the same facts with the greater offence earlier charged to which he had pleaded to a lesser offence.

The provisions of this section shall not apply to persons-

• charged with capital offences, rape, or defilement or any offence involving the use of violence, or
• persons who had, in the last ten years been convicted and sentenced to any such offence involving grievous violence or sexual assault.  

 

This provision requires to be backed up with adequate guidelines for the operation of the plea bargain with respect to the prosecutor, the defendant, the witness and the victim.[58]

 

The EFCC is empowered under Section 14 (2) of its Act, to compound any offence punishable under the Act by accepting such sum of money as it thinks fit not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence. The section provides thus:

Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue, takeover or discontinue criminal proceedings against any person in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.

 

 

Plea Bargaining: Immunity from Punishment?

The practice of what has come to be known as “plea bargaining” has been the subject of considerable debate over the last few decades. In a sense, it may be seen as immunity from punishment for crime(s) not yet charged; that is, if the defendant is actually guilty of the offence(s).  In its very essence, plea bargain does not operate to make the accused free form guilt and therefore escape punishment. The concept rather makes the accused person to acknowledge guilt and be punished for the crime admitted, even though by a lighter sentence. Many guilty persons have escaped punishment after going through regular trial, due to many factors which may include technicalities, insufficient evidence, lack of diligent prosecution, etc. Former CEO of now acquired Intercontinental Bank Plc, Mr. Erastus Akingbola and his co-accused were standing trial before the court on a 26 count amended charge bordering on stealing over N42 Billion depositors funds while he was the Chief Executive Officer of the now acquired bank. Justice Charles Achibong while dismissing the charges, noted the: “serious and professional incompetence” of the prosecution team made up of five Senior Advocates of Nigeria.[59]

To further respond to the query as to whether plea bargain is a form of immunity from punishment, we shall proceed to examine two models of justice- Retributive Justice and Restorative Justice and also consider the advantages and disadvantages of plea bargain. The query is answered in the negative. This will be appreciated if one considers the weighty arguments in favour of plea bargaining and also views punishment as not only meant to be retributive, but also intended to serve a restorative purpose.

 

 

Two Models of Justice[60]

RETRIBUTION		RESTORATION
1	Crime is defined as violation of a law against the State	Crime is defined as violation of one person by another
2	Emphasis is on establishing blame, on guilt, on the past.	Focus is on problem solving, on liabilities and obligations, on the future (What should be done)
3	State imposes pain to deter or prevent future crime	Focus is on restitution as a means of restoring both parties; goal is reconciliation and restoration
4	One social injury is replaced by another	Emphasis is on repair of social injury
5	Action is directed from the state to offender; victims are ignored and the offender is passive	Victim’s and offender’s roles are recognized in problem/solution; victim’s rights and needs are recognized, and offender is encouraged to be responsible for his /her actions
6	The offence is defined in purely legal terms devoid of moral, social, economic, or political dimensions	The offence is understood in whole context –moral, social, economic, and political
7	The offender’s “debt “ is owed to society in the abstract	Recognition that the debt or liability is owed to a specific victim(s)
8	Response of the state focuses on offender’s past behavior	Response is shifted to the harmful consequences of the offender’s behavior
9	The stigma of crime cannot be removed	Stigma of crime is removed via restorative action.
10	No encouragement for repentance and forgiveness	Possibility of repentance and forgiveness

 

Arguments in Favour of Plea Bargaining  

The United States Supreme Court affirmed and advocated plea bargain in a 1971 decision, Santobello v. New York [61] Chief Justice Warren Burger said in that case:

Plea bargaining is an essential component of the administration of justice. Properly administered, it is to be encourages. If every charge were subjected to full –scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Also arguing in favour of plea bargaining, Hon. Justice Joseph Oyewole, in delivering judgment in FRN v. Nwude and Others[62] stated:

I have duly considered the submissions of counsel and I must commend the candor, wit and erudition displayed. This is in line with the best tradition at the bar. In imposing sentence on the accused persons, the court has noted the fact that in changing their pleas, valuable time and resources are being saved and is evidence of remorse and common sense, a point appreciated by the prosecution as reflected in the present amended charges.

The following arguments are advanced in favour of plea bargaining.

1. Plea bargaining is useful in case management for both the prosecutor and the court. Cases that need not proceed to trial are not keyed into the system, thereby, lessening the case load burden and also helping to attain speedy trial, even for the other cases.[63] Resolving a criminal case either through a plea of guilty or by reducing the length of a trial alleviates the workload of prosecutors, reduces the need for judicial resources and courtroom facilities and decreases all the other expenses necessitated by a trial.
2. Plea bargaining obviates the need for the expended time and resources in prosecuting cases. The costs of crime include the expenditures required for protection, those incurred by victims, and those associated with the functioning of the justice system. These costs include expenditures on police, investigations, prosecution, legal aid, courts and prisons. For instance, in Canada, the total cost of crime in Canada is estimated to be close to 59 billion dollars per year. Measures such as resolution discussions can help reduce expenditures.
3. Plea bargaining also cuts cost for the defendant. It reduces the expenses he/she would have incurred on a prolonged trial.
4. The Accused person and the complainant can reach an agreement which settles the case satisfactorily and effectively between them and gives each of them a sense that justice has actually been done.[64]
5. Plea bargaining allows criminals who accept responsibility for their actions to receive consideration for their remorse in the form of a lighter sentence.
6. There may be cases where the defendant may be culpable in one criminal matter, but have information that would help in prosecuting a broader or more significant matter. In such cases, the prosecutor may agree to reduce the charges or sentencing in the first matter, in exchange for the defendant’s cooperation in the other matter.[65]
7. Plea bargaining is convenient for the prosecution where the prosecution is weak. If trial is concluded, the ultimate result may be an acquittal, for want of proper witnesses or evidences.
8. In Nigeria, we operate an accusatorial system of criminal justice. Such a system places the evidential burden entirely on the prosecutor to prove a criminal charge beyond a reasonable doubt. There is no obligation on the accused to demonstrate his innocence. As a result, criminal trials can be long and heavy. By exploiting plea bargaining, harrowing and lengthy trial is averted. The victim is not made to endure a harrowing and lengthy trial. Long detention period is also averted. Testifying and undergoing rigorous cross examination can be very difficult for the young, the old, the infirm and survivors of sexual abuse and rape[66].

The Committee on the Reform of the Criminal Justice Administration, in introducing plea bargaining in the Administration of Criminal Justice Bill 2005, noted a number of advantaged in introducing plea bargain. Some of which are:

• “…It broadens the prosecutorial discretion of the Attorney-General in supervising and managing the Criminal justice system
• It provides a release valve in the system so that cases that do not deserve to go through the tedious full trial can be dealt with through plea bargain, especially minor offences and offences not involving intentional violence. In other words, it provides an alternative to trial (may be inappropriately, a kind of ADR in the criminal justice system)
• It would complement the provisions on compounding offences, and would encourage amicable settlement of cases between the offender and the victim (Victim-Offender Mediation). Usually, plea bargain is entered where the victim and the offender requests for it, having settled the violation through other reconciliatory processes.
• It is based on the admission of guilt, with element of remorse or contrition. At such point, it would discourage re-offending and encourage reformation of the offender if he is given another opportunity to be a better person in the society.
• It is a discretional tool, which the prosecution (Attorney-General) will use sparingly and in deserving cases.
• Reduced prison population and the attendant pressure on prisons and court system. Plea bargain will prevent those who ordinarily ought not to be in prison from going there. Through plea bargain, there can be rehabilitating impact on the defendant. First offenders or young offenders can be sentenced to lesser offences, and to non custodial sentences that would reform them rather than sending them to long awaiting trial remand or prison term, where they would be in prison with criminals, and by the time they come out of prison, they would become more hardened offenders.
• Plea bargain will help to reduce impunity, and strengthen faith in the system, which is eroded because cases are hardly finalized. To prevent impunity and to conclude cases, is a dis-incentive to offending. When cases are not processed effectively, it leads to loss of faith in the system. The strongest deterrence to criminal activity is a combination of the possibility of apprehension, and the knowledge that when arrested, the offender will be tried and brought to justice by the system. With plea bargain, a higher number of cases will be processed.”[67]

 

Arguments against Plea Bargaining

Despite its numerous benefits, plea bargaining has been severally criticized. The concept has been much maligned by the general public in large measure mostly because people do not fully understand the concept. Many people are confused about the term “bargain”, which is supposed to convey a sense of compromise and that people are getting a “good deal” at the expense of the victim and the criminal justice system.[68]

Antagonists of plea barging also argue as follows:

1. That plea bargain undermines several of the principles of the criminal justice system, such as the principles of fair hearing and due process as enshrined in chapter IV of the Constitution, by allowing the circumvention of the rigorous standards of due process and proof imposed during criminal trials. Thus effectively compromising the rights that fall under the constitutional guarantee of fair hearing.
2. That the plea bargaining process is superfluous and mortifying to the criminal justice system. One of the most serious concern with the plea-bargaining process being the possibility that an accused that is in fact innocent can be induced or coerced to plead guilty and bear witness against himself or herself.

 

3. That while it is a requirement of law that an accused admit his guilt before a court accepts a plea other pressures may frustrate this principle.[69] Langbein argues that prosecutors routinely charge offenders with crimes prosecutors cannot prove at trial, defendants often end up pleading guilty to crimes they may have been acquitted had the case gone to trial.[70] It is further argued that the disparity between the sentences offered to a defendant in plea gaining and the punishment threatened by a trial, intensifies the pressure to confess.
4. That plea bargaining is a lazy prosecutors approach which allows offenders to receive lenient sentences. The concern about this is that the practice undermines the deterrent effect of criminal sanctions and perpetuates the image that offenders can evade the law, provided they are willing to bargain. This concern is exacerbated by the significant differences that may sometimes exist between the sentences imposed after guilty pleas and those imposed after trials. [71]
5. Plea bargaining could result in offenders being let off with light punishments, which may not serve as sufficient deterrent to others and also expose the judicial system to ridicule.[72]
6. That compounding of criminal cases is an offence under the criminal code and some aspects of plea bargaining, involve compounding[73].
7. The Committee on the Reform of the Criminal Justice Administration, in introducing plea bargaining in the Administration of Criminal Justice Bill 2005, noted that even though plea bargain works in many other jurisdictions, it may be abused in Nigeria, both through connivance of the prosecutor’s office with the defence team, or by the court officials. The Committee noted three risk factors to the introduction of plea bargain, namely:

• “It may encourage reoffending, as the deterrent effect of plenary trial and punishment for the exact offence committed will be removed. Offenders will know that if they are caught, they can bargain themselves out for a lesser offence, or may just pay the fine and easily walk away free.
• The high level of corruption, compounded by the high rate of poverty, will undermine the plea bargain process. It is pointed out that officials responsible may begin to ‘sell’ lesser offences in all cases, and to use the provision to extort money from defendants so they would receive lesser punishment than they would have received had they been tried.
• Thirdly, it is suggested that plea-bargaining would not address the needs and interests of the victims of the offence, because it focuses on providing easy release for the defendant, without consideration of the pains and demand for justice from the victim.”[74]

 

Recommendations

Plea bargain should not be applied in a way that it will be perceived as a mockery to the criminal justice system. The major problem with plea bargain as it is presently applied is that it appears that it is only applied in favor of the politically and economically powerful than for the benefit of the underprivileged and common offenders. This is not the intendment of the Lagos State Administration Criminal Justice Law. Apart from for the application of section 14 (2) of the EFCC Act for financial crimes, there is no reason why the procedure should not be extended openly to other offenders. This will help reduce the current feeling by well meaning Nigerians that justice is being sacrificed at the altar of plea bargain for the wealthy corrupt individuals only and that it is a form of immunity for punishment.

The application of plea bargaining should be applied in such a way that it will not defeat the attainment of substantial justice. For instance, a Federal High Court in Enugu had on December 18, 2008 imposed a fine of N3.5m on the former Governor of Edo State, Mr. Lucky Igbinedion after he was found guilty of committing fraud while he was the Governor[75].

 

Procedural Guidelines/Directives should be issued to the Police, Prosecutors and Judges on the practice of plea bargaining as regards when it is appropriate to plea bargain, the role of the respective parties including the victim(s), and the quantum of restitution, restoration, compensation and sentence of imprisonment to be made, especially in cases relating to fraud, breach of public trust and corruption. This procedure must not be subjected to abuse or misapplication against the interest of the state and the society at large.

 

It is important that the Federal Administration of Criminal Justice Bill 2005 still pending at the National Assembly is passed into law after amending the section on plea bargain, to provide all the necessary safeguards for its application.

 

CONCLUSION

Plea bargaining, no doubt facilitates prosecution and conviction at a faster rate than conventional trial system. It conveniently settles cases where guilt is obvious as well as those where proof of all elements of the charge is problematic, thereby reducing the risk to both defendant and prosecution. For the plea of guilty, to be lawful, it must always be a free and voluntary act by the accused himself, untainted by any threats or promises to induce the accused to admit that he/she committed the offence when he/she does not wish or intend to do so. It is also essential that the accused be prepared to admit the necessary factual and mental elements of the offence charged at the time that a plea bargaining arrangement is made.

 

Where appropriately applied, plea bargaining unlike core retributive responses to crime, has the potential to repair the financial and perhaps relational harms that crime has left in its aftermath through forfeiture, restitution, restoration and/or compensation. Restorative justice is the preferred option because rather than increasing the total amount of harm suffered by interested parties, it aims at repairing the victim, and making the offender a productive person, while also  providing a sanction that is more clearly related to the offence than punitive measures. Most importantly, it better restores a victim to the place he/she occupied before the offence.[76]

 

Finally the words of Hon. Justice Joseph Oyewole in the case of FRN v. Nwude is instructive. He noted:

 

A balance must however be arrived at by the court in ensuring that not only is the  financial element which induces and motivates this class of offences is taken care of,  but also impose sanctions that would signpost to society that crime does not pay and  that certain conducts are simply not acceptable

 

FOOTNOTES:

[1] http://www.restorativejustice.org/university-classroom/01introduction Accessed on 15/4/2012.

[2] Russell L. Christopher “The Prosecutor’s Dilemma: Bargains and Punishments”, Fordham Law Review, Vol. 72, Issue1, p. 93.

[3] Kent Greenawalt, Punishment, 74 J. Crim. L. & Criminology 343, 347 (1981).

[4] John Rawls, Two Concepts of Rules, 64 Phil. Rev. 3, 4-5 (1955).

[5] Suit No. ID/92C/2004.

[6] $242 million Scam: Nwude, Okoli, Jailed for 32 years available at: http://www.assetrecovery.org/kc/node/e3e421ea-28f9-11de-900c-81c63910293a.0;jsessionid=8E56140A260A92CE09674794D7FB0DCB, Assessed on 15/4/2012.

[7] Wahab Abdulah, Gabriel Onyeaku & Faith Ifediora, “$242m scam: Nwude, Okoli jailed 37 years” Available at: http://nm.onlinenigeria.com/templates/?a=6062&z=17. See also www.asharq-e.com/news.asp?section=4&id=863 Accessed on 14/4/2012.

[8] Ige I., Available at http://www.vanguardngr.com/articles/2002/features/law/law123122005.html, Assessed on 15/4/2012.

[9]Available at: http://www.saharareporters.com/article/plea-bargaining-and-criminal-justice-system-nigeria. Accessed on 15/4/2012.

[10] Ibid.

[11] Francis Famoroti, Plea bargaining: A blessing or curse to Nigeria’s Criminal Justice System, available at: http://nigerianlawguru.com/articles/criminal%20law%20and%20procedure/PLEA%20BARGAIN%20A%20BLESSING%20OR%20A%20CURSE%20IN%20NIGERIA.pdf. Accessed on 15/4/2012.

[11]Act 51 of 1977 was amended in 2001.

[12] Rosie A. Joseph, “Plea Bargaining a Means to an End” Available at: www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf. Accessed on 14/4/2012

[13] South Africa –(South African Criminal Procedure Act, Act 51 of 1977); India- (Criminal Law (Amendment) Act 2005; Pakistan-(Anti-Corruption Law –National Accountability  Ordinance, 199) See Nweze C. C. “Plea Bargaining in the Administration of Criminal Justice”, paper presented at the  West African Regional Workshop on Constitutional Immunity and Criminal Justice Administration , held in Abuja, 3^rd-4^th July, 2008,pp. 6-8.

[14] Oxford Companion to the Supreme Court, available at: http://www.answers.com/topic/plea-bargain. Accessed on

15/4/2012.

[15] Milica Potrebic Piccinato, “Plea Bargaining”, http://www.justice.gc.ca/eng/pi/icg-gci/pb-rpc.html. Accessed on 15/4/2012.

[16] Expert law http://www.expertlaw.com/library/criminal /plea_bargains.html. Accessed on 15/4/2012.

[17] Ibid

[18] Ibid

[19] Ibid.

[20]K.P. Pradeep, “Plea Bargaining-New Horizon In Criminal Jurisprudence Available

at: http://kja.nic.in/article/PLEA%20BARGAINING.pdf. Accessed on 15/4/2012.

[21] Ibid.

[22] Ibid.

[23] Robert M. Bohm and Keith N. Haley, Introduction too Criminal Justice, (New York: Mc Graw –Hill Co. Inc.. 2005), p. 37.

[24] ibid.

[25] See http://en.wikipedia.org/wiki/Punishment. Accessed on 15/4/2012.

[26] Article 43

[27] This was expressed by the Phrase” An eye for an eye” “A tooth for a tooth”

[28] Robert M. Bohm and Keith N. Haley, Introduction to Criminal Justice, supra note 23, p. 320.

[29] “Deterrence” Available at: http://en.wikipedia.org/wiki/Deterrence_(legal). Assessed on 15/4/2012.

[30] http://en.wikipedia.org/wiki/Deterrence_(legal) Assessed on 15/4/2012.

[31] Mia Wood, “The Concept of Punishment” available at: http://www.girlzillawrites.com/The_Concept_of_Punishment.html. Assessed on 15/4/2012.

[32] See Ani Comfort Chinyere, “Extending the Frontiers of Remedies for Crime Victims in Nigeria”, (2009) 1 NJI L.J., p. 105.

[33] “What is Restorative Justice?”http://www.neighbourhoodjustice.vic.gov.au/webdata/resources/files/What_is_Restorative_Justice.pdf

[34] http://www.brattleborocjc.org/restorative-justice.html. Accessed on 14/4/2012

[35] Henry Campbell  Black,  Black’s Law Dictionary, (Minnesota: West Publishing Co., 6^th ed. ) 1990, p. 1313

[36] http://www.restorativejustice.org/university-classroom/01introduction/tutorial-introduction-to-restorative-justice/outcomes/restitution. Accessed on 14/4/2012.

[37] See Femi Odekunle, Restitution, Compensation and Victims ‘ Remedies: Background and Justifications in Sade Adetiba (Ed.) Compensation and Remedies  for Victims of Crime( Lagos: Federal Ministry of Justice, 1990)   p. 157

[38] Joseph O.  Oyewole, “Plea Bargaining and the Administration of Criminal Justice”, paper presented at the Training Workshop for Public Prosecutors, organized by the Nigerian Institute of Advanced Legal Studies, Lagos, on 15^th May, 2007, p. 5.

 

[39] Cap 30 Laws of Northern Nigeria, 1963

[40] See Appendix C for the list of offences that may be compounded.

[41] Section 339 (4) CPC

[42] See Part I, Appendix C of the CPC

[43] Section 339 (5) CPC

[44] See Part II of Appendix C of the CPC.

[45] Henry Campbell Black, Black’s Law supra, note 35, p. 286.

[46] Sections 162 and 163 of the CPA.

[47] Section 1 (3) of the Constitution declares the Provisions of the Constitution prevails over any law that is inconsistent

with it.

[48] Cap. E14 Laws o f the Federal Republic of Nigeria, 2004.

[49] Section 218 of the CPA. For more on guilty plea, see Oluwatoyin Doherty, Criminal Procedure in Nigeria, (London: Blackstone Press Ltd., 1990), pp. 253-254

[50] John Langbein,  “Understanding the Short History of Plea Bargaining” , 13 Law & Society / Winter 1979 , p. 267

[51] Plea bargain was earlier introduced in Lagos State by Section 76 of the repealed Criminal Justice Law of Lagos State, 2007.

[52] See also Section 248 of the ACJ Bill 2005, which provides for the possibility of a defendant to plead guilty for a

lesser offence than offence charged.

[53] Section 76 (2) of the ACJL Lagos, 2007.

[54] Section 76 (3). Section 248 of the ACJ Bill 2005

[55] Section 76 (6).

[56] Section 76 (8).

[57] See Ani Comfort Chinyere, “Reforms in the Nigerian Criminal  Procedure Laws,” NIALS Journal of Criminal Law and Justice, vol. 1 2011, pp. 83-84.

[58] See for instance the US National Prosecution  Standards, available at: http://www.showme.net/CapeCounty/pa/INETPLEABARGAINING.htm. Accessed on 16/4/2012

[59] “Another EFCC Case Quashed As Court Frees Erastus Akingbola of Graft Charges”. Available at:

http://ireports-ng.com/2012/04/02/another-efcc-case-quashed-as-court-frees-erastus-akingbola-of-graft-charges/. Accessed on 15/4/2012.

[60] Adapted from Zehr, Howard Retributive Justice, Restorative Justice(Akron: PA: Mennonite Central Committee, 1985), cited in Steven E. Barkan, George J,  Bryjack,  Fundamentals of Criminal Justice, (Boston: Pearson Educational, Inc. 2004),  p. 152.

 

[61] 404 U.S. 257 (1971)

[62] Supra, note 5.

[63] See section 35 of the 1999 Constitution Cap 41 LFN 2004 as amended.

[64] J. O. K. Oyewole, supra, note 38, p. 2.

[65] Ibid.

[66] See Nweze C. C. “Plea Bargaining in the Administration of Criminal Justice”, supra note 13, p. 10.

[67] See The Summary Comments on the Report of the National Working Group on the Reform of Criminal Justice Administration, June, 2005, pp. 124-125.

[68] Steven E. Barkan, George J,  Bryjack,  Fundamentals of Criminal Justice supra, note 60,  pp. 312-313

[69] Milica Potrebic Piccinato, “Plea Bargaining”, supra, note 15

[70] Langbein  J. H. “ On the Myth of Written Constitutions: The Disappearance of Jury Trial”, Harvard Journal of Law and Public Policy , (15) 1: 119-128, cited in  Steven E. Barkan, George J,  Bryjack,  Fundamentals of Criminal Justice, supra note 60, p. 315.

[71] Milica Potrebic Piccinato, “Plea Bargaining”, supra note 15.

[72] Joseph Oyewole, supra, note 38.

[73] See sections 127 and 128 of the Criminal Code, Cap. C. 38, Laws of the Federation of Nigeria, 2004.

[74] The Summary Comments on the Report of the National Working Group on the Reform of Criminal Justice Administration, supra note 67, p. 124. This argument is not tenable because if plea bargaining is properly instituted like in other jurisdictions like Canada, the victim will have to be carried along in the process.

[75] Francis Famoroti, “Plea Bargaining: A Blessing or Curse to Nigeria’s Criminal Justice System”, supra note 11.

[75]Act 51 of 1977 was amended in 2001.

 

[76] Hon Justice J. O. Oyewole in FRN v. Nwude and Others, supra.