The Devil’s Bargain:
Should justice be negotiable?
by Fabia Chenivesse-Wong
Recently, plea-bargaining has made the headlines, a sufficiently remarkable occasion to warrant attention. Plea-bargaining, or the bringing about of a negotiated end to criminal proceedings, has had an unusual trajectory in the US and Canada. Having developed into the primary means to secure a conviction, plea bargains have remained off the books: unregulated, unrecorded, and unpublicized. They are creations of pragmatism rather than principle, a backroom practice now rubber-stamped by the courts but remaining beyond effective judicial control. They are true creatures of obscurity – which is what makes the current buzz around the practice peculiar.
In July, the late billionaire Jeffrey Epstein was charged in New York with sex trafficking. The proceedings against him came to an abrupt end a month later, when Mr. Epstein died from an apparent suicide, but the issues raised by his alleged crimes and their initial disposition remain disturbing. The charges arose from the alleged abuse of dozens of minor girls over three years. In 2008, the US Attorney’s office accepted a plea bargain ensuring a soft landing for Mr. Epstein in spite of being aware of the extent of his alleged criminality. In an investigative report for the Miami Herald, reporter Julie K. Brown pieced together a troubling account involving the now-former Secretary of Labor Jim Acosta, and how Mr. Epstein and his well-funded team of lawyers were able to broker a secretive deal whose sole beneficiary appeared to be Mr. Epstein.
Earlier this year, a Florida judge ruled that federal prosecutors had acted illegally, not only by failing to advise victims that a deal had been reached, but misleading them into believing the FBI investigation was ongoing. The decision was being appealed, with federal prosecutors arguing that the courts were “not to interfere with the free exercise of the discretionary powers of the [US prosecutors] in their control over criminal prosecutions.” Though conceding that the matter could have been better handled, prosecutors appeared to be most interested in protecting their exclusive domain over the plea-bargaining process.
This should come as no surprise. As antithetical the idea of bartering may seem to any conception of justice, plea bargains have entirely eclipsed the constitutionally protected right to a trial to become the beating heart of the American and Canadian criminal justice systems. In the US, 95% of criminal matters never make it to trial. What began as an unacknowledged, unsavoury practice was quickly recognized by practitioners and the courts alike as a necessary evil and eventually, accepted as the uncontroverted lubricant of criminal justice, without which the system would collapse. In Canada, the practice was discouraged by law societies as late as the mid-1970s; less than twenty years later, it has become par for the course, endorsed by the Supreme Court, citing American authority in its decision. How did it come to pass, in our system whose integrity is based on its adversarial nature, that one party effectively administers justice in an unofficial and unregulated arena with nearly unfettered authority?
The ethical quandaries of plea-bargaining are legion. Prosecutors in the US and Canada have a loaded arsenal. They can adjust the seriousness of a charge or the number of charges, they can offer a reduced sentence, they can even bargain with the facts. An argument against judicial intervention is that an accused’s decision will no longer be freely made if the judge is seen to condone a plea arrangement. Can any decision truly be free if it involves the threat of years of incarceration? People innocent of crime are known to have pled guilty to avoid the possibility of longer jail time. Prosecutors can also barter in exchange for incriminating evidence against a co-conspirator. Can such information ever be reliable? And can we stomach the consequences: that someone occupying a higher and more culpable position in a criminal hierarchy may be able to bargain their way to a lesser punishment than someone sitting at the bottom of that ladder who has nothing to barter with?
The fair result of any negotiation is premised upon an equality of arms that simply does not exist in the justice system. Effective defense advocacy – whether at the bargaining table or before a jury – requires a command of the details of a case. It is expensive and unavailable to the majority of accused persons. On the flip side, as illustrated by the deal struck by Mr. Epstein’s counsel, those with the resources can force a lopsided result using political pressure or other objectionable means. Negotiations reduce what is supposed to be an impartial procedure to an arm-wrestling match, rigged in favour of whomever has the heavier billfold.
Finally, there are the victims. Our system does not permit the active participation of victims in criminal proceedings; it affords only some procedural rights regarding the disclosure of information and the reading of a victim impact statement prior to sentencing. But even these minimal rights fall away in the plea-bargaining arena.
These issues aside, the fundamental problem posed by plea-bargaining is that it transforms our justice system into an administrative machine, without the implementation of the necessary protections that exist in all other realms of administrative law. In Canada, there is no provision of the Criminal Code expressly permitting plea-bargaining, nor is there any legislative regulation. As is the case in the US, any limitation derives from either professional ethics or case law; lawyers operate as a self-regulated profession, and common law restrictions are minimal at best. It is a system without real checks and balances, with one primary actor – the prosecutor – performing largely without oversight. There are few written records, making any appeal as impracticable as an effective historical analysis of the practice. Transparency, reliability and fairness in the criminal justice system seem to have gone the way of the trial.
North of the border, Prime Minister Justin Trudeau recently found himself embroiled in a controversy of a completely different sort, involving Montreal-based engineering firm SNC-Lavalin and his ex-Attorney General and Minister of Justice Jody Wilson-Raybould. The question revolved around whether the Prime Minister’s team had interfered with the administration of justice by unduly pressurizing Ms. Wilson-Raybould to direct the responsible prosecutor to enter into plea negotiations. Wilson-Raybould was eventually shuffled out of her position as Attorney General after her refusal to intervene.
First, some background: SNC-Lavalin faces charges of fraud and corruption concerning nearly $180 million (CAD) for acts taking place between 2001 and 2011. Selected executives have already been prosecuted for these acts, with varying results. If the company is convicted it is barred from bidding on federal contracts for ten years.
SNC-Lavalin had lobbied the Trudeau government to adopt a Deferred Prosecution Agreement (DPA) regime since 2016, after charges had already been laid. The government did so in the fall of 2018, passing the amendment in omnibus legislation. DPAs – already in use in the US and the UK – allow corporations to obtain a stay of criminal proceedings in exchange for a laundry list of terms that include an admission of responsibility, a forfeiture of profit as well as payment of reparations and fines, and a continuing obligation to report any individuals who are part of the wrongdoing.
The law is essentially a compromise. Its supporters argue that corporate crime is too onerous to prosecute and that the new regime presents a middle ground that protects innocent shareholders while encouraging self-reporting, transparency and accountability. Its detractors point out that it creates a more lenient kind of criminal justice for wealthy corporations, a kind of mercy that is unavailable to the average criminal defendant.
There are two aspects of the legislation that warrant a Prime Ministerial headache in the context of the scandal. The first is the explicit grant of discretion to the prosecutor as to whether to enter into negotiations for a DPA, as well as the explicit grant of authority to the Attorney General to either approve or reject the prosecutor’s decision. In this case, the Director of Public Prosecutions decided not to enter into negotiations, and the Attorney General did not see fit to overturn her decision. There is no governmental override to this decision-making process – at least not in the text of the law. Second, the legislation makes explicit that the prosecutor must not consider the “national economic interest” in making his or her decision, when the corporation is alleged to have committed an offence under the Corruption of Foreign Public Officials Act, which appears to have been the case with SNC-Lavalin. Notwithstanding this last point, the Prime Minister continues to cite Canadian economic interests in defending his office’s actions.
Ms. Wilson-Raybould has cited prosecutorial independence as the principle from which her actions spring – the notion that in her role directing prosecutions, the Attorney General should be independent from the Executive branch and immune from its pressures. The idea is related to that of prosecutorial discretion, which provides that the prosecutor has the authority to decide whether or not to pursue a criminal matter. The latter notion is the basis for plea-bargaining, and has also been used as an argument to shield plea bargains from substantive judicial review.
The Supreme Court of Canada has recognized prosecutorial independence as a constitutional convention and principle. The independence of the prosecutor is necessary to protect the rule of law: an Attorney General unprotected from political pressure is an open door to cronyism and the unfair application of the law. But in Canada, the Attorney General is also the Minister of Justice, and as such has a position in the government’s cabinet. While the law has evolved to some extent to divide the two roles, until they are permanently severed, the Attorney General’s independence remains largely contingent on the good faith of the person occupying the post.
There is little to hold the government to account for not respecting the independence of its Attorney General. There is a conflict of interest law that prohibits holders of public office from using their role to seek to influence a decision that furthers their private interests, but the law does not contemplate any sanctions for the situation that PM Trudeau finds himself in. [Shortly before publication of this article, an independent ethics commissioner found that PM Trudeau’s office had violated the law.] That a prosecutor’s independence from political direction remains largely aspirational raises troubling questions.
The two stories offer insight as to what happens when negotiations overtake the justice system. Though the issues raised differ, they demonstrate some of the ways in which power dynamics can subvert the course of justice. Our justice systems process scores of human beings, reducing their experiences and destinies to a cost-benefit analysis, unless they are amongst the lucky few with the means to force a trial. Meanwhile, corporations have managed to negotiate the implementation of a separate system that is in many ways fairer and more transparent.
Plea-bargaining is often presented as the only way to keep our overburdened justice system afloat, notwithstanding the existence of the midway DPA regime, and the fact that around the world, there are alternative systems wherein plea bargains are employed under strict limitations. In France, for example, a plea deal is a relative rarity, available only in respect of non-serious offences, and subject to judicial review. It is simply unavailable for crimes of rape, murder, and child trafficking. A comparison without context is not definitive but it does raise a question: is there anything specific to our legal tradition that somehow makes plea-bargaining more ethically acceptable here?
Rule of law, or the equal application of one law to all, is conceptually inseparable from democracy and is one of our favourite ideological swords to brandish when we wage war or criticize other countries’ practices. This, in spite of the fact that at home, the rules differ depending on how much you can spend. In the hierarchy of rights, those enshrined in the constitution are intended to sit up top. What does it mean when the defense of a constitutional right depends entirely on the depth of interested pockets? Who will defend the interests of the economically marginalized, racialized group that makes up the North American prison population, as the weapons and gun lobby does in respect of the Second Amendment?
It is unsurprising that a free-market approach to justice yields inequities. More interesting is how these inequities have been created, expanded and defended. The literature summarizing the historical evolution of plea-bargaining is brief. Prosecutorial discretion lacks a clear textual foundation, although in the US some scholars argue that its origin is Article Two of the Constitution and particularly the executive “take care” clause which imposes upon the President, and therefore his agents, the obligation to take care that the laws be faithfully executed. How a clause conferring responsibility can be transformed into a source of power, however, requires the form of reasoning best suited to constitutional law scholars. It is generally agreed, though, that the concept originates in the English doctrine of nolle prosequi, which provides that it is within the prosecutor’s right to end a prosecution. The post of the Attorney General in England was created to represent the crown’s interests before the law courts and so the purpose of such a power is evident: though his subjects must submit to the rule of law, the King would retain the authority to end any process that might imperil his interests.
We may not live in a monarchy (this is less clear in Canada) but the discretion remains, and has since grown in scope. In the US, since the 1970s, prosecutorial power has been legislatively increased as the ambit of the judiciary has been legislatively reduced through the imposition of mandatory minimum sentences and sentencing linked to charging. In the meantime, the Supreme Court has dismantled attempts by lower courts to impose judicial supervision over the plea-bargaining process. Effectively, in the US lawmakers have worked hand-in-hand with the highest court of the land to ensure the unchallenged authority of the Executive. The evolution of criminal justice raises serious concerns regarding not only whose interests the system was designed to serve, but even more so the integrity of our democracy. A system without effective checks and balances is, after all, as sound as the presumption that a person seeking to occupy a position of power is acting in good faith and in the interests of the people.
Innocent until proven guilty. Beyond a reasonable doubt. The first challenge in assessing a system is to get beyond the elegant rhetoric to what lies beneath. The trial was conceived as a means to discover the truth, through an open and transparent party contest between prosecutor and defense with a judge acting as neutral arbiter. Rules of evidence and procedural safeguards permitted the testing of evidence; the imposition of the presumption of innocence and the high burden of proof on the prosecutor reflected the ideal that it is better that ten guilty persons escape than one innocent suffer, in recognition of the fallibility and the terrible power of the state. It is said that the measure of any society is how it treats its most vulnerable. In examining the current state of criminal justice, we ought to consider all that has been bargained away in the name of expediency and cost-efficiency – truth, transparency, fairness and justice, but only for those who cannot afford it – and what that reveals about our society.
 Brown, J.K. (2018, 28 November) Perversion of Justice. Miami Herald. Retrieved from: https://www.miamiherald.com/news/local/article220097825.html.
 Brown, J.K. (2019, 25 June) Jeffrey Epstein plea deal must stand, prosecutors tell sex abuse victims. Miami Herald. Retrieved from: https://www.miamiherald.com/news/state/florida/article231916968.html.
Fabia Chenivesse-Wong. Fabia studied and practiced law at a regional law firm in her hometown of Toronto, Canada, before moving to The Hague, the Netherlands, in 2011. For six years she worked for UN tribunals, prosecuting international crime. Currently based in the south of France, she writes about gender, race, culture and the law.