Table Of ContentPLEA NEGOTIATIONS
PRAGMATIC JUSTICE IN
AN IMPERFECT WORLD
Asher Flynn and Arie Freiberg
PALGRAVE SOCIO-LEGAL STUDIES
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Asher Flynn • Arie Freiberg
Plea Negotiations
Pragmatic Justice in an Imperfect World
Asher Flynn Arie Freiberg
Monash University Monash University
Clayton, VIC, Australia Clayton, VIC, Australia
Palgrave Socio-Legal Studies
ISBN 978-3-319-92629-2 ISBN 978-3-319-92630-8 (eBook)
https://doi.org/10.1007/978-3-319-92630-8
Library of Congress Control Number: 2018948218
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To Bernard Freiberg 1925–2017
Who would have been quietly proud
Foreword
In many countries today, courtroom observers will see a small number of trials
and a much larger number of sentencing hearings consequent upon a guilty
plea where the broad outcome has been determined beforehand but with no
indication of how the plea arrangement has been reached. In most of this
guilty plea group, the outcome has been determined through an “agreement”
reached between the prosecution and defence lawyers in a practice variously
referred to as “plea negotiation”, “plea bargaining” or “state-induced guilty
pleas”. Although a lot has been written about the desirability, utility and con-
stitutionality of this guilty plea process, the way in which the settlement
comes about is heavily under-researched. This excellent study fills a much
needed gap in the literature and, through its astute information collection,
penetrating analysis and thoughtful reading of data, provides a bench mark
for future socio-legal researchers.
As I write, the criminal justice process in the UK is in a crisis of a depth
unparalleled in modern history. Late disclosure of prosecution evidence in
scheduled trials has destroyed the credibility of key state witnesses. Trials
involving allegations of rape and human trafficking have collapsed; hundreds
of other serious prosecutions have been abandoned; thousands more are now
subject to official review. Prosecution non-disclosure appears to be rife, per-
haps more so than at any time before recent “austerity” measures. The
Attorney-General, the Metropolitan Police and the Crown Prosecution
Service are vying with each other at the head of the queue to offer public
apologies. Instead of justice being done and being seen to be done, the public
perception is that justice is being done in. All of this is occurring against a
background of institutional pressure increasingly placed upon defendants to
plead guilty to save the state the time and expense of an adversarial trial.
vii
viii Foreword
A window into how legal practitioners respond to such an environment and
how they actually negotiate in a guilty plea setting could not, therefore, have
come at a better time.
In this book, Asher Flynn and Arie Freiberg provide a detailed account of
the plea negotiation process as it operates in Victoria, Australia, where, as in
the UK, the rationales of austerity—efficiency, economy and effectiveness—
enshroud the courtroom actors. The study focuses on a sample of cases that
had evidence of some form of negotiation (a term the respondents generally
preferred as against “bargaining” and its underhand connotations) leading to
a withdrawal of charges generally accompanied by a reduction in both the
number and seriousness of the remaining charges. In addition, substantial
interviews have been conducted with the main players, defence and prosecu-
tion lawyers and judges. Empirical data has been collected meticulously and
presented in a nuanced way. Utilising a mixture of qualitative and quantita-
tive methods, information drawn from de-identified case files is inter-laced
with material derived from sensitive interviews with the participants to eluci-
date the negotiation process.
So what’s to be said about plea negotiation that cannot be found in scores
of other books and hundreds of learned articles on this process? As it turns
out, a great deal! Although the authors offer insightful suggestions for re-
framing the official approach to plea negotiation (thereby laying the ground
for further debate), the emphasis throughout is on opening up this closed
world to give an understanding of the ways in which the actors conduct them-
selves and make sense of this negotiation environment. It is here that the
authors give insights into how decent people do their best under constrained
circumstances and explain their thought process, conflicts and choices. Of
course, despite the best efforts of the researchers, some shadows remain.
Resource constraints prevented involvement of defendants and victims. There
are also intriguing hints of puzzles yet to be resolved. Thus, for example, while
half the respondents indicated that bail was an element of negotiation, the
case files were completely silent as to this. In another instance, a judge said: “I
can provide examples, but I won’t.” But the overall picture is revealing, vivid
and entirely convincing.
The forms of plea negotiation (14 are described) in Victoria are more var-
ied, complex and situationally specific than has been commonly understood.
Despite the lack of formal regulation, there is a framework of informal rules
and procedures known primarily to those within the legal community with
some indications of a closed world suspicious of “outsiders”.
The files and interviews suggest that negotiations are not simple, ill-consid-
ered or precipitate, thereby giving some comfort to those who may be con-
Forewor d ix
cerned that defence practitioners do not have their clients’ best interests in
mind when engaging in negotiations. The reader hears in rich detail the
authentic voice of the legal actors and learns the strategies and procedures
they employ, how they understand and justify their role in a process that,
while not lawless, rests in large measure on pragmatism and the stresses and
challenges that such a context necessarily brings. It is in these accounts that a
major contribution to the literature is made.
There is much to promote further discussion and, hopefully, more research.
One concern explicated by the authors, not confined to but arguably exacer-
bated in an informal setting, is that although negotiations were said to turn
on standard criteria (the strength of the evidence, the public interest and the
client’s interests), the majority of respondents considered that the outcome of
negotiations depended upon personality—which prosecutor or defence prac-
titioner (or indeed judge) was involved—and their respective skill sets.
Interestingly, as between lower and higher courts, in pointing to the more
serious crimes, participants implied that it was necessary to “pay more atten-
tion to negotiations” and “negotiate much more thoroughly and much more
based on the evidence” in the higher courts which might imply a differen-
tial—even idiosyncratic—form of justice well-attested in other jurisdictions.
Again, seemingly authoritative court rulings which might inhibit the plea
negotiation process turn out to have had a limited effect upon these practitio-
ners. The incentives to negotiate appear strong enough to bypass higher court
rulings.
Although the authors come down on the side of reforming the plea nego-
tiation process and pay respect to the dedicated professionals working within
a constrained environment, this is not a proselytising account. It is more
about gene sequencing: uncovering the roles of prosecution and defence law-
yers and judges in a plea negotiation which takes place within an imperfect
environment; and it does this very well indeed. Moreover, the study is far
from limited to contextualising the process within a changing criminal justice
environment. Instead, it locates detailed and insightful empirical findings of
one jurisdiction within the broader international jurisprudence keeping a
constant and even-handed dialogue with both critics and defenders of plea
negotiation.
This perceptive, insightful and stimulating book will accordingly have wide
appeal in the international community of scholars and practitioners, even
those who are unaccustomed to compromising their views!
Kowloon Tong, Hong Kong Mike McConville
February 2018
Acknowledgements
This book arose out of a Criminology Research Council-funded project
Negotiated Guilty Pleas: An Empirical Analysis (CRG51/13–14). We are thank-
ful for the funding contributions and support of the Criminology Research
Council (administered through the then Australian Institute of Criminology)
and our institution, Monash University, to enable this research to be
conducted.
The idea behind the study informing this book arose from research Asher
had completed as part of her doctoral thesis, and several projects Arie has
been involved with as part of his role as Chair of the Victorian Sentencing
Advisory Council. But completing the research would not have been possi-
ble without the assistance of a number of people and organisations. First and
foremost, we wish to thank all the participants involved in the study for
giving up their valuable time to contribute their perspectives and experi-
ences in interviews, group discussions and consultations. Your perspectives
provided a rich source of information to shed light on plea negotiations for
those outside the legal community. We are grateful for the immense support
of Victoria Legal Aid, with a special thanks to Gabriela Pulczynski, Helen
Fatouros and Rosy Jolic. We also acknowledge the support of Victoria
Police—in particular, Inspector Richard Koo, Acting Senior Sergeant Sherril
Handley, and Dr David Ballek—and the assistance and feedback offered
from the Office of Public Prosecutions by the former Director of Public
Prosecutions, Mr John Champion SC, Vicki Prapas and John Cain. We
would also like to thank and acknowledge Monash University Law students,
Monica Lee, Jake Collom and Jacob Uren for their assistance in de-identify-
ing the case files. This was a mammoth, sometimes tedious, but incredibly
xi
