Economics of plea bargaining

By Indra Giri on August 21, 2015

Plea bargaining is an agreement between the prosecutor and the defendant where the defendant agrees to confess to a crime in return of a benefit (Devers, 2011).  The Black’s Law Dictionary defines plea bargaining as “The process whereby the accused and the prosecutor in a criminal case, work out a mutually satisfactory disposition of the case Subject to the Court approval. It usually involves the accused pleading the guilty to a lesser offence or to only one or some of the courts of multi-count indictment in return for a lighter than that possible for the graver charge” (The Black Law Dictionary, 2004).

Plea bargaining can be classified into three categories:

  1. Charge bargaining,
  2. Sentence bargaining and
  3. Fact bargaining.

Charge bargaining, is the most common form and involves negotiation of crimes by defendants in return of a lesser charge. Sentence bargaining involves agreement where the defendant confesses in return for the lighter sentence and lastly, fact bargaining involves defendant providing truth and existence of provable facts with the agreement that the prosecutor does not introduce other facts as evidence (Santhy, 2012).

Inception of plea bargaining in India and debates attached

The concept of plea bargaining came into effect in the Indian Judicial system on 5th July 2006. This idea of plea bargaining was added to chapter XXI A into the Code of Criminal Procedure (CrPC), 1973 [1]. Since the inception of Plea bargaining Law in India there has been mixed response, wherein the supporters argue that it would help in reducing the criminal cases with quick disposal. Further they also argue that the victim’s family will be compensated on time. However, it is argued that it is most beneficial to the accused who can get concessions in their punishment. On the other hand, opponents of plea bargaining argue, this can reduce the faith of the people and tag this law to be “unfair” and a “contempt of system”. Also the police moral will be affected and a plea bargaining does not always lead to revelation of truth about the crime committed (Fernandes, 2012; Kathuria, 2007).

Economics of plea bargaining

The introduction of economics in plea bargaining was first initiated by Landes (1971), who indicated plea bargaining to be a rational response where the prosecutor tries to maximize the sum of punishment on the defendants and the defendants try to minimize the expected punishment (Landes, 1971). Later Grossman and Katz (1983) studied the efficiency and effects of plea bargaining in terms of erroneous outcomes and sources spent on criminals during the period of their punishment. More recently, Givati (2007) built a model to study the factors of plea bargaining. It was found that the concern of countries towards innocent people and increase in crime rate (Givati, 2007) as the two most important factors.

There have been cases in the past where plea bargaining has been accepted, for example in Vijay Moses Das v CBI, the person was accused of supplying sub-standard products to ONGC at wrong port leading to immense loss to ONGC. However, when asked for plea bargaining his application was accepted. In another case in 2011, the court accepted the plea bargain of four accused foreign nationals who plead guilty after 21 months of being imprisoned for stealing diamonds worth Rs. 6.6 crores.

Impact of plea bargaining in India

However, importance of economics attached with the concept of plea bargaining within India is not well understood yet. Not many accused who plead bargaining are able to avail the opportunity. The first case under plea bargaining in India was the case of Sakha-ram Bandekar v/s CBI, who was accused of being involved in siphoning of Rs 1.48 crore through. The accused requested for plea bargaining however CBI opposed his appeal (Santhy, 2012) and thus his appeal was rejected. Similar to this case, there are several cases which are pending across different courts in India. Figure 1 below, reflects the statistics of total pending cases in India uptill 2012 and the number has been increasing with each passing day.

Statistics of total pending cases in India
Percentage of total inmates in Indian prisons (Source: Prisons Statistics India (2012))

According to Press Trust of India (2014), there are more than 3 Crore pending cases while the total capacity is for five lakh prisoners (National Crime Records Bureau, 2011). The average cost of one prison is Rs 55- 60 per day and the state governments spend more than Rs 361 Crore annually on prisoners (Ministry of Home Affairs, 2012) which adds to the economics. The amount spent is multiplied with each passing year which impacts the overall economics of the country which is still emerging. Further, the economics should also be linked with the time and cost involved in the overall procedure of court hearings and salaries of people involved in the process.

The present scenario with respect to India, there are numerous cases which are piling up in  different courts of India. The minor cases can be resolved using plea bargaining law which will not only reduce the number of cases in the courts but will also impact the economy of the country.

[1] Plea Bargaining under the sections 265 A to 265 L can be used when; a) offences penalized y imprisonment below 7 years (265 A); however cannot be applied when a) the accused is previously convicted for same crime; b) offences affecting socio-economic condition of country; c) offences committed against women and children below 14 years (265 L).

References

  • Devers, L. (2011). Plea and Charge Bargaining. Arlington.
  • Fernandes, M. A. (2012). LAW AND SOCIAL CHANGE TOPIC : Plea Bargaining it ’ s relevance in India. Kare College of Law.
  • Garner, B. A. (2004). The Black law Dictionary (8th editio). Eagan: West Publishing Co.
  • Givati, Y. (2007). Plea Bargaining : A Comparative Legal and Economic Analysis (pp. 1–26). Cambridge.
  • Grossman, G. and Katz M., (1983). Plea Bargaining and Social Welfare. American Economic Review 73: 749-757.
  • Kathuria, S. (2007). 3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf. Banglore.
  • Landes, W. (1971). An Economics Anlaysis of the Courts. Journal of Law and Economics, 14, 61–107.
  • Ministry of Home Affairs. (2012). Prison Statistics India. New Delhi.
  • National Crime Records Bureau. (2011). Prison Statistics India. New Delhi.
  • Press Trust of India. (2014). Cases pending for 3 decades. Retrieved August 19, 2015, from http://www.ndtv.com/india-news/more-than-3-crore-court-cases-pending-across-country-709595.
  • Santhy, K. V. K. (2012). Plea Bargaining in US and Indian Criminal LawConfessions For Concessions. Hyderabad.
Indra Giri
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