Plea Deals Shrouded in Mystery
Parkes, Debra, Winnipeg Free Press
Manitobans have questions in the wake of allegations the Crown dropped charges against Shawn Lamb for the sexual assault of a 14-year-old girl as part of a bargain that saw him plead guilty to manslaughter, rather than murder, for the unrelated homicides of Lorna Blacksmith and Carolyn Sinclair. Concerns have been expressed that the charge in relation to Tanya Nepinak's death will also be stayed as part of the same package.
This episode has focused attention on the common and controversial practice of plea bargaining.
The prevalence of plea bargains today is largely pragmatic. The majority of charges are resolved without a trial through guilty pleas and the withdrawal of other charges. Quite simply, if all charges went to trial, the system would collapse.
Yet the ubiquity of plea bargaining is relatively new. In 1975, the Law Reform Commission of Canada criticized the practice, saying justice should not be "purchased at the bargaining table."
A bargain entails an agreement in which both Crown and defence give something up. The accused gives up the right to a trial and the Crown stays some charges or seeks a lower sentence than might otherwise be possible. But, not all agreements are true plea bargains. Some are simply joint submissions on the appropriate sentence without the Crown giving anything up in exchange for the accused's plea.
There are advantages to a system that encourages resolution of charges before trial. Trials are costly in fiscal and human terms. Plea agreements are efficient, reduce court costs, and provide an element of certainty to all parties. Witnesses do not have to testify, which can be traumatic. A guilty plea is seen to convey remorse and is therefore a mitigating factor in sentencing.
However, plea bargaining carries some risks. Deals are reached behind closed doors and there is often little discussion in open court about the reasons behind the agreement. Prosecutorial discretion is strongly protected in our system, meaning we do not know much about the reasons for proceeding to trial with some charges, taking pleas to others, and staying still others. We have little research on the subject but studies in the U.S. indicate prosecutorial discretion is exercised unevenly on the basis of race. …