No Nonsense
Plea bargain and corrupt politicians
On September 11, Law Adviser Mainul Hosein told reporters that the government was considering enacting a new law -- a "plea bargain" for an accused criminal in exchange for a reduced penalty. Such a practice existed as early as 1633, when Galileo was given house arrest by the Inquisition in exchange for reciting penitential psalms weekly and recanting Copernican heresies. A plea bargain is a prosecutorial tool -- an arrangement in which a prosecutor and a defendant negotiate to settle the case. The defendant pleads guilty, or no contest, to a charge and in exchange the prosecutor recommends a lesser sentence or punishment. The tool is a significant part of the American criminal justice system -- nearly 90 percent of all criminal cases are settled by plea bargain rather than by a jury trial. Under the US law, as of January 27, the maximum a plea bargain can reduce jail sentences and fines by is 50%. Plea bargain is widespread for many pragmatic reasons. * Defendants can avoid the time and cost of defending themselves in a trial, and the risk of harsher punishment and the humiliating publicity that a trial could involve. * The prosecution saves the time and expense of a protracted trial. * Both sides are spared the uncertainty of the trial's outcome. * The court is spared the burden of conducting a trial for every crime. In the US, the validity of a plea bargain is dependent upon three essential components: a knowing waiver rights, a voluntary waiver, and a factual basis to support the charges to which the defendant is pleading guilty. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. However, before accepting the recommendations the court ensures that the above three components are fulfilled. There are generally three areas of plea bargaining: * Charge bargaining: Prisoner agreeing to a plea of "guilty" to a lesser charge, a prosecutor agrees to dismiss the higher or other charge(s) or counts. * Sentence bargaining: Agreement to a guilty plea (for actual charge) in return for a lighter sentence. * Fact bargaining: Admission to certain facts in return for an agreement not to introduce certain other facts as evidence. Plea bargain is essentially a non-zero-sum game of cooperation by the prisoners. Table-1 assumes two politicians, both detained for crimes, with each being cognisant of (and to an extent culpable for) the other's crimes. The strategies opened to the prisoners: Confess vs. don't confess, and the prosecutor offers four options to the prisoners separately. In option-1, the prisoners are told that non-confession forces a trial, and 16 years of mandatory sentencing for each if convicted. This assumes that the prosecutor has convictable evidence -- a scenario contrary to the prisoners' dilemma. Non-confession by both prisoners in a typical prisoners' dilemma entails much less than 8 years. Although the years of sentencing (in parenthesis) are set arbitrarily, the differences in years are persuasively assigned to reflect leniency for cooperation and severity for non-cooperation. The prosecutor negotiates with each prisoner separately. Rational strategies would culminate in both prisoners confessing to the crimes. The game assumes that both prisoners only care about minimising their own jail terms. As in Table-1, Kalu might reason as follows: Milu can confess or Milu doesn't confess. If Milu confesses he gets 2 years -- I get 16 years if I don't confess. But if I confess I get 8 years. On the other hand, if Milu doesn't confess and I don't either -- I get 16 years. Given the uncertainty and the fear that the court will confirm my guilt I will confess for a lesser sentence. Since each prisoner must choose his own strategy, independent of his counterpart, Milu will presumably strategise his moves the same way -- so they both confess and get 8 years each. Even if each knew that the other would confess, the dominant strategy for each is still to confess, as each will receive a lesser sentence by confessing. A game with two players is a standard example in game theory literature. Arguing along the same lines, I constructed a plea bargain with a single prisoner, as in Table-2. Once again, the prosecutor offers four options to the prisoner. Here a "no contest" plea is slightly preferable to a "guilty" plea since the defendant isn't admitting guilt officially, whereas a guilty plea is preferable to the prosecution. Plea bargains aren't without shortcomings -- they can put pressure on defendants to plead guilty to crimes that they know they didn't commit. The outcome of a plea bargain may depend on the negotiating adroitness and personal demeanour of the defense lawyer, which positions prisoners who can afford deft lawyers at an advantage. However, this can be circumscribed by ratifying a mandatory minimum and maximum sentence commensurate with the nature of the crimes -- a modus operandi that'll also lessen prosecutorial discretion while keeping corruption and other irregularities away from the court. Plea bargaining was introduced in India by the Criminal Law Act, 2005, and enforced from January 11, 2006. Offenses affecting the socio-economic condition of the country, and those committed against a woman or a child below the age of fourteen, are excluded. In Pakistan, plea bargain was enacted by the National Accountability Ordinance 1999 -- an anti-corruption law. Here, the accused initiates a plea bargain, admitting guilt and offering to return the proceeds of corruption. Acceptance of the plea disqualifies the accused from taking part in elections, holding public office, obtaining bank loans, and continuing in government service. In Bangladesh, enactment of formal plea bargaining laws is long over-due, and has become more crucial now, given that the nation's prisons currently house nearly 8 times more convicts than their stated capacity of 27,000. As for corrupt politicians, it seems that Pakistan's plea bargaining legislation should be examined critically, with the provision that all convicted politicians and public servants will be denied their fundamental right to a passport. Dr. Abdullah A. Dewan is Professor of Economics at Eastern Michigan University. (The author thanks Guy Downs and Professor Bill Woodland for their comments).
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