An accused may choose to plead guilty to a criminal charge brought up by the public prosecutor. Sometimes the public prosecutor offers the concession of a reduced charge or a reduced number of charges if the accused elects to plead guilty. An accused who elects to plead guilty might also receive a lighter sentence, which the public prosecutor can recommend to the judge. This process, also known as ‘plea bargaining’, takes place informally in Singapore in the absence of an institutionalised framework. Negotiations typically take place through the Criminal Case Management System where the prosecution and defense meet early in the case, or through the Criminal Case Resolution process in the presence of a judge.
In Singapore, such plea bargaining is also a common practice when an accused is potentially faced with charges warranting the death penalty.
What are the potential issue with plea bargains?
Any criminal legal process ought to ensure that not only is there accurate fact finding in each and every case, but that it is done in a manner that respects the rights of an individual. This is reflected in the use of adversarial trials with procedural safeguards to ensure fairness. Plea bargaining, however, is effectively the waiver of this right of fair trial in exchange for a reduced charge or sentence.
In many jurisdictions, higher levels of criminalisation over the years meant an increase in workload for the prosecutor and the courts. Hence an increasing acceptance of plea bargaining in an attempt to reduce the cost of administering justice. But the pursuit of efficiency in this manner can also be prejudicial to the fairness of the criminal process for a number of reasons.
For example, an accused’s decision to plead guilty might be compromised by structural features of the criminal legal process – for example, an accused who cannot access legal aid and finds paying for legal representation in a lengthy trial too costly might be unduly incentivised into taking a guilty plea on a lesser charge. It might also be compromised by relatively weaker fundamental rights protection in the criminal process, giving someone less confidence in the ability of the legal system to achieve fair outcomes for them. Weak access to justice and insufficient protection of the procedural rights of individuals in the criminal process can make guilty pleas less than fully voluntary.
Plea bargaining negotiations also favour the prosecutor, who has extensive discretionary powers that could be used in a coercive manner to strongarm individuals into guilty pleas. One such possibility is overcharging, where stacking a more serious charge or more charges pressures the accused into taking a plea bargain. Another is ‘exploding offers’ made with time limits with no other reason than pressuring the defendant into taking it up.
Plea bargaining in capital cases
The use of plea bargains in capital cases should be distinguished from its typical usage in offences with less severe sentences. It polarises the choices an accused has – either they plead guilty for the certainty of a non-capital sentence, or claim trial and face the possibility of death.
Much research in other jurisdictions has also highlighted that the threat of death penalty has been used coercively to obtain plea agreements, creating harsher bargaining terms for the accused. One extensive empirical study in the US found that the threat of the death penalty ‘has a substantial causal effect on the likelihood that a defendant accepts a plea agreement’, but despite that, it did not reduce the dollar cost of using the capital punishment.
In Singapore, given the mandatory nature of the death penalty and the extensive discretion of the public prosecutor in determining the charges against an accused in drug-related cases, the use of plea bargaining in death penalty cases is prejudicial to a fair and just criminal process. As highlighted previously, the public prosecutor has de facto control over the use of the death sentence in drug cases.
PP v Kannan s/o R Kumaran: This involved three individuals facing drug-related charges. The three men – Kannan, Ashvin, and Arun – were scheduled to be jointly tried in the High Court, each facing capital punishment for drug-related charges involving cannabis. However, “All three accused were subsequently offered reduced non-capital charges premised on similar facts should they elect to plead guilty.”
Ashvin and Arun accepted this offer, pleading guilty and receiving the lesser sentences of 25 years imprisonment with 15 strokes of the cane, and 24 years imprisonment with 15 strokes of the cane respectively. However, Kannan did not plead guilty, and subsequently faced the High Court earlier this year where he was convicted, and is now sentenced to death. The implications surrounding the rejection of a plea bargain are exemplified in the outcome of Kannan’s case.
This is neither the first nor only instance of plea bargaining in relation to capital charges.
In a Straits Times article in 2017, the Deputy Attorney General was quoted, on the matter of plea bargaining, that the “prosecution presses charges based on the evidence and seeks sentences based on the facts and sentencing precedent” and that the “prosecution also does not intentionally ask for excessive sentences or seek inadequate sentences as part of plea bargains.” But this also raises the question: if the prosecution, in offering reduced charges, believes that the negotiated charges and the resulting sentence still adequately reflects the case at hand – why should the prosecution proceed with a capital charge even if the accused chooses not to plead guilty?
Leveraging the threat of the death penalty against an accused in plea bargaining undermines the right to a fair trial. When faced with the possibility of death, an individual may feel compelled to accept any charge of lesser severity – even if the only recourse is pleading guilty.
In response to the recent case of PP vs Kannan, Transformative Justice Collective condemns the prosecution’s use of plea bargains where the accused is facing charges warranting the death penalty.
Unlike plea bargaining in other criminal offenses, rejecting the offer of a plea bargain in a capital case means an accused will face the death penalty if they are unable to prove their innocence, since the capital charge has the death penalty as the mandatory sentence.
If the public prosecutor is of the view that the sentence that an individual receives on the non-capital charge upon accepting the plea bargain is fair or adequate, then it should commit to that lesser charge even if the offer is not taken.
Ultimately, the ethical complexities and difficulties of plea bargaining under the death penalty only serves to illustrate the profound unjustness of the death penalty. This is why the death penalty should be abolished.
- Ho Hock Lai, The Privilege Against Self-Incrimination and Right of Access to a Lawyer, 25 SAcLJ (2013).
- Cynthia Alkon, Hard Bargaining in Plea Bargaining: When do Prosecutors Cross the Line?, 17 Nev. L.J.401 (2017).
- Sherod Thaxton, Leveraging Death, 103 J. Crim. L. & Criminology 475 (2013).
-  SGHC 36