Speeding up justice

By Dana Seetahal

 T he fact that in less than a year Doreen Alexander, the final accused in the kidnapping and murder of her common-law husband Balram Maharaj, was convicted of hostage taking resulting in the death of Mr Maharaj and sentenced by United States courts is said to be a lesson to the authorities in T&T as to how cases may be disposed of quickly. In truth it is a testament to the effectiveness of the US plea-bargaining system.

In T&T in 2013 alone we have seen the appointment of three different minsters of national security presumably in the hope that they would be able to effectively treat with the most significant problem in the country – crime. Various long term social measures, the provision of educational opportunities and other interventions may have actually resulted in a reduced murder rate, as well as in serious crimes. For example,  murders in 2008 numbered 547 (rising from about 100 in 1999). Not surprisingly this increase coincided with the growth of gangs and some might say the social malfunctioning of families in the urban areas. From 2009 onward, however, the numbers  decreased so that in 2011 (the year of the state of emergency) the figure had dropped by about 40 per cent to 352. This year the total will most likely be around 400.

Yet crime continues to be the most obvious social problem. Undoubtedly part of the reason for that is the low detection rate: for murder about 25 per cent and other serious  crimes maybe 30-40 per cent.  It is apparent that the likelihood of being able to escape detection  will empower a perpetrator so that he will  continue committing more crimes with  little fear that punishment will follow. The State has over the last decade or so  expended  billions  of dollars on resources and passed various pieces of legislation in the hope of improving the detection rate. 

The irony however is that if this were to actually come to pass – more people are arrested and charged – it is highly unlikely that the current system of prosecution will be able to cope with more cases and accused.

At present it could take years for an accused person to obtain a trial in the High Court or even in the magistrates’ courts. Last year alone the few murder cases to be tried  in the High Court each took over four months to complete. Meanwhile hundreds of other matters are still listed. Over time witnesses not only lose interest in their case but may also forget the evidence. Add to that the fact that jurors may be reluctant to convict a person who has waited five or even ten years for a trial with the threat of imprisonment hanging over his head. The conviction rate thus is  also likely to be negatively affected.

The authorities must focus now on accelerating the trial and prosecution process in order to restore some faith in our system of criminal justice. One way of doing so is to activate the plea-bargaining system.

Twenty-five years ago, when I reviewed plea-bargaining in the US (in partial fulfilment of the requirements of  my master’s programme in Criminology), I found that there was a total guilty-plea rate of as much as 95 per cent and the majority was through plea-bargaining. Even though at that time there were calls for the reform of the system (which has existed as part of the US common law for over 100 years) it was generally agreed that the US could not function without plea-bargaining.  The system was first formally recognised by the US Supreme Court in 1970 in the case of Brady v the US where Brady had bargained to be safeguarded from the death penalty in exchange for a guilty plea. 

The US Supreme Court outlined the advantages of the system thus: “For a defendant who sees slight possibility of an acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious – his exposure is reduced, the correctional processes can begin immediately and the practical burdens of trial are limited. For the State, there are also advantages – the more promptly imposed punishment after an admission of guilt may more effectively attain the objective of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved.”

Later in Santobello, then US chief justice Burger held that plea-bargaining was to be encouraged. He said that if every  criminal charged were subjected to  a full scale trial the state and federal governments would need to multiply the number of judges and court facilitators. This statement reflects the now commonly accepted view in the US of why judges support the system: to alleviate the need to schedule and hold a trial on an already overcrowded docket. It takes months, if not years, to get a trial date, so judges are always keen to have parties settle the matter through the bargain.

For a defendant plea-bargaining provides the opportunity for a lighter sentence on a less severe charge, or to have fewer (or less serious) offences listed on a criminal record. It must be noted that plea-bargaining involves both charge bargaining (pleading guilty to one or more charges in return for a dismissal of another or others) as well as sentence bargaining. If they are represented by private counsel, defendants also save the monetary costs of a lengthy trial by accepting a plea-bargain.

In the foreseeable future there is no way that our justice system can accommodate criminal trials in the normal way without further exacerbating the problem. If we continue as we are going now in five years or so an accused person who is to be tried in the High Court may not obtain a trial for 15 years. Then chances are the jury will acquit with their own ingrained system of justice. This cannot be right. It is time to activate plea-bargaining and enable swifter justice.

* Dana S Seetahal is a former independent senator

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