Four models of victim involvement during plea negotiations: bridging the gap between legal reforms and current legal practice.

AuthorVerdun-Jones, Simon N.
PositionCanada - Forum: The Role of the Victim in Plea Bargaining/Rubrique speciale sur le role de la victime dans les negociations de plaidoyer

Over the past 20 years, a number of policies have been explicitly designed to enhance the nature and scope of victim involvement in the criminal justice process (Erez 1990: 20; Finn-deLuca 1994: 404; Roach 1999; Roberts 2002: 1; Tobolowski 1999: 21-30; Young 2001). In Canada, one of the most dramatic reforms was the amendment of the Criminal Code in 1999 to permit victims to present victim impact statements orally and in an open court. Similar provisions exist in relation to parole hearings under the Corrections and Conditional Release Act. As a result of the growing use of victim impact statements, the profile of victims in the judicial process has been substantially raised (Schmalleger, MacAlister, McKenna, and Winterdyk 2000: 388).

However, given this increased interest in victims' rights, it is important to investigate whether victims should be accorded a more formal role at an earlier stage in the criminal justice process. In particular, it is necessary to consider whether there is a sound, prima facie case for according victims a meaningful role in the process of plea negotiation. This issue assumes considerable importance in light of the fact that in countries such as Canada, the United States, and Australia, approximately 90% of cases are resolved through guilty pleas that are frequently the direct outcome of successful plea negotiations between prosecuting and defence counsel (Canadian Sentencing Commission 1987: 406; Dick 1997: 1035; Colquitt 2001: 700; Klein 1997: 19; Federal Rules of Criminal Procedure: 385; Seifman and Freiberg 2001: 64).

For criminal justice researchers, plea bargaining is a compendious term describing a broad range of behaviours that may occur among actors in the criminal court system (Verdun-Jones and Hatch 1988: 1). Broadly speaking, the promises that may be made by Crown counsel fall into three overlapping categories:

  1. promises relating to the nature of the charges to be laid (charge bargaining);

  2. promises relating to the ultimate sentence that may be meted out by the court (sentence bargaining); and

  3. promises relating to the facts that the Crown may bring to the attention of the trial judge (fact bargaining).

    The impact and ramifications of plea negotiations within the criminal justice process are undoubtedly far-reaching. Indeed, the contents of a plea may well determine the nature of the specific charges laid against an accused person, and there is little doubt that the choice of charge exercises a considerable degree of influence on the type--and quantum --of any sentence ultimately meted out by the trial court. Similarly, the provisions of a plea bargain may frequently dictate the specific type of trial proceeding that will be taken against the accused (e.g., summary conviction, as opposed to indictable, procedures). Consequently, the parties are able to determine the nature and range of sentencing options that will be available to the trial judge. (2) In addition, the outcome of the plea negotiation process may well affect the extent to which Crown and defence counsel "shape the facts" that are ultimately presented to the trial judge at the sentencing stage: this is yet another plea-bargaining strategy that permits the parties to the agreement to exert a significant impact on the sentence imposed by the trial judge (Cousineau and Verdun-Jones 1979; Griffiths and Verdun-Jones 1994; Verdun-Jones and Hatch 1987, 1988).

    Finally, the victim of a crime may well be affected--profoundly and personally--by the nature and contents of any plea agreement that is ultimately negotiated by the Crown and the defendant. For example, it may be a matter of extraordinary significance to the victim of a crime of sexual aggression whether the charge laid accurately reflects "what really happened" rather than a "watered-down" version of events that effectively denies the reality of the victim's experiences.

    Ironically, to date, victims in Canada have been granted a formal role only at the sentencing hearing, and relatively little attention has been paid to the question of whether it would be desirable--and sound--criminal justice policy to accord them a right of meaningful participation in the plea negotiation process. Consequently, in Canada, very few rights have been accorded to victims in relation to the plea bargaining process. This situation stems from the fact that, although it is widely recognized that plea negotiations constitute an integral part of the criminal justice process in Canada, they nevertheless have no formal legal status and are hot subject to direct judicial regulation.

    This article examines the issue of victim participation during the plea negotiation process within the context of international trends--particularly those trends that have emerged in Canada and the United States. More specifically, the focus of the analysis is on the emerging trend towards granting the victims of crime certain rights in relation to the prosecution of "their" offenders. This trend has manifested itself at both international and national levels and has resulted in the promulgation of international declarations and the enactment of specific legislation in various jurisdictions. Particular attention is then paid to the provisions of federal and provincial/territorial legislation within Canada that deal with the rights of victims in relation to the prosecution of cases within the criminal courts. Subsequently, the focus of inquiry shifts to the development of victims' rights and the formalization of plea bargaining in the United States. The article concludes with an examination of four alternative models of victim involvement in the plea negotiation process and recommends the adoption of a model that permits victims to participate directly in a formal plea negotiation hearing before a judge--but without granting victims the right of veto.

    Victims' rights and the prosecution of criminal cases

    International context

    The recognition of the need to provide the victims of crime with opportunities to play a more active role in the criminal justice process is part of a significant international trend. For example, on 29 November 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime (United Nations 1985). Subsequently, the United Nations Commission on Crime Prevention and Criminal Justice developed a handbook to assist states in their implementation of this declaration (United Nations 1998). Particular attention is paid to the rights of victims in the prosecution phase of the criminal justice process. Indeed, among the specific roles and responsibilities assigned to prosecutors, the Handbook (United Nations 1998: chap. 3.2.2) highlights the duty to provide specific forms of information to victims, including

    * providing notification of the status of the case at key stages in the criminal justice system, [and]

    * coordinating, where applicable in the jurisdiction, the inclusion of victim impact information (i.e. written statements, allocution, audio, or video statements) into court proceedings (including plea bargains, pre-sentence reports, and sentencing) with probation authorities and the judiciary.

    Similarly, in Match 2001, the Council of the European Union issued a Framework Decision that--inter alia--addressed the right of victims to receive information concerning the prosecution of their cases within the criminal court process (European Union 2001).

    Canadian initiatives

    Provincial legislation

    Following the international trend towards a greater emphasis on the recognition of victims' rights in the criminal justice process, the various provinces and territories of Canada have implemented Victims' Bills of Rights. The authors of this article recently surveyed victims' rights statutes in Canada and round that one of the central features of this legislation is the right of victims to be informed of the status and progress of their cases within the criminal court system (Verdun-Jones and Tijerino 2001). In this particular context, it is significant that the province of Ontario has enacted legislation that grants victims of crime the right to be informed about "any pre-trial agreements that relate to a plea that may be entered by the accused at trial" (Victims" Bill of Rights [Ontario]: s. 2(x)).

    However, with the exception of Manitoba, Canadian jurisdictions have not enacted legislation that grants victims the right to be consulted about plea negotiations. The Manitoba Victims' Bill of Rights grants victims a definite right to be consulted about various aspects of the prosecution of "their" defendants. More specifically, s. 14(e) of the act states that prosecutors ought to consult victims in relation to "any agreement relating to a disposition of the charge." The new legislation in Manitoba represents a noteworthy expansion of victims' rights in relation to their involvement in the prosecution of "their" cases. In particular, the explicit statutory recognition of the right to be consulted about potential plea agreements elevates the role of the victim in plea negotiations to an entirely new level within the Canadian context. It remains to be seen whether other Canadian provinces and territories will follow Manitoba's lead in this respect.

    While there has undoubtedly been some progress towards a greater degree of statutory recognition of victims' rights in the Canadian provinces and territories, these rights are nevertheless somewhat "toothless" in terms of their enforceability. First, victims' rights are frequently circumscribed by statutory language that suggests they are far more discretionary than absolute in nature. In this respect, Steve Sullivan (1998: 7) suggests that a careful examination of the statutory words and terms employed in this body of legislation (e.g., "should have," "subject to limits," "in appropriate circumstances," "promote') reveals an underlying reluctance on the part of legislators to...

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