DEVELOPMENT OF PLEA BARGAINING IN THE ADMINISTRATION ...

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58 NIALS Journal of Law and Development unworkable as a routine depictive procedure. A variety of factors, some quite fortuitous, inclined caseload into contrail plea bargaining procedure rather than to refine its trial procedure as contemporary legal system was doing. Plea bargaining was unknown during most of history of the common law. 28 Only in the nineteenth century we found significant evidence of the practice in either England or America. These findings beckon to legal historian for explanation. In modern time, plea bargaining has become the primary procedure through which we dispose of the vast proportion of cases of serious crimes. How then could common law procedure function for so many centuries with practice that is today so prevalent and seemingly so indispensable? The Nature of Plea Bargain Let us reiterate here once again, though at the expense of repetition that there are two basic types of plea bargain viz: Charge bargain and sentence bargain. In the case of charge bargain, it is arranged in a way that the prosecutor takes out a less serious offence charge which carries a consequent less punishment than what would have been obtainable if the original charge were preferred and the accused successfully prosecuted. In this case, the accused person must have pleaded guilty to one or more charges, depending on the bargain. The second type of plea bargain is sentence bargain. In this case, the charges or counts need not be more than one. It may be a single charge or count. Here the accused person agrees to plead guilty to the charge in exchange for the prosecution agreeing to a minimal punishment. Under sentence bargain, it is necessary that the offence in question must carry alternative punishments. If the offence carries a 28. Beatie, J. M. (1977): ‘ Crime and Courts in Surrey: 1736-1753”, in J. S. Cocburn (ed):
Development of Plea Bargaining in The Administration of Criminal Justice in Nigeria : A revolution, Vaccination Against Punishment or mere Expediency? single mandatory punishment without any option, then it is the view of the present writer that there is nothing to bargain as the accused person may have nothing to gain from the bargain. Moreover, it will become necessary, where there alternative punishments, that the judge be involved in the bargain in order to give effect to the bargain by way of lenient punishment. This is because if the judge is jettisoned from the bargain, he chooses what to do in terms of punishment since he is not in the know of the bargain. In the case of sentence bargain, although the charge may correctly reflect the conduct for which the accused is charged, the prosecutor recommends a lenient sentence. 29 Despite the above distinctions, it has been said that there is no strict dichotomy between the two types of bargains. This reasoning has been explained in the following words: This is due to the fact that whichever is adopted, the end result is that the accused person is likely to get a lighter punishment for the offence he has committed in consideration for pleading guilty. The above categorization of plea bargain depicts the practice in the U.S. where plea bargaining is deeply entrenched in the administration of criminal justice. In England, Wales, Australia and Scotland, 30 only charge bargain is allowed. In the U.K. two forms of plea bargains similar to charge bargains is practiced. The first is where the prosecution agrees with the accused that if the accused pleads guilty to a lesser offence they will accept the plea. The other is where the 29. James F.P.: “Plea Bargaining” (1972) 1 AM, CRM, L. 187. 30. Moody, S.R. & Tomps J.: “Plea Negotiations in Scotland” Criminal Law Review, Jan-Dec. (1983) p. 297. 59
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