Conviction To Compromise: The Plea Bargain Option 19th April, 2012


Criminal Justice administration is taking new dimensions worldwide. One of the recent developments in the administration of criminal justice is the emergence of plea bargaining. Most criminal  prosecutions  are concluded  even without  trial, this happens  in the form of compromises between the parties concerned.
There is polarity of contemporary reactions to this practice. Nevertheless, most participants in the plea bargaining process find the practice as a panacea in the administration of criminal justice.  In  an  epoch  where  the  practice  of  plea  bargaining  has  come  under  opprobrium, especially in relation to the anti-corruption  fight, it is only apt to engage in an exercise of self-flagellation and make a few recommendations that will impact on criminal justice administration.

In furtherance of its resolve to bring contemporary problem to public discourse and arrive at practical  recommendations  that  will  move  the  nation  forward,  the  Nigerian  Institute  of Advanced Legal Studies, held a one day Roundtable on Conviction to Compromise: The Plea bargain option to articulate the problems and challenges facing our criminal administration with a view to providing solutions.

Perspectives for the Roundtable include:

i.      Plea Bargaining: History and Origin ii.      The paradox of plea bargaining
iii.      Guilty Pleas and Concessions of Bargaining iv.      Criminal Justice and Sentencing Policy
v.      Coercion to Compromise: The Imperatives of Plea Bargaining

vi.      The Negotiated Guilty Plea: A paradigm shift in Sentencing vii.      Plea Bargain in Nigeria: Constitutional Question
viii.      The Role of Plea Bargaining in Modern Criminal Law#

ix.      Economic Crime and Plea Bargain

x.      Plea Bargaining: The Law and Economics of Criminal Prosecution in Nigeria
xi.      The Prosecutors Role in Plea Bargaining
xii.      Plea Bargain: Immunity from Punishment


1          By  its  nature,  plea  bargaining  is  an  activity  undertaken  within  the  context  of prosecutorial discretion whereby the prosecutor in order to save time or cost, or avoid the difficulty  in certain  cases,  of having to strive  to prove certain  facts required  to establish certain offences, decides to offer certain concessions to the defendant in exchange for specific offence(s) charged or proposed to be charged.
2          Plea bargaining allows criminals who have accepted responsibility for their actions to receive consideration for their remorse in the form of a lighter sentence.
3          Plea  bargaining  is  part  of  the  prosecutorial  decision  making  process  where  the criminal  defendant  and  the  prosecutor  reaches  a  mutually  satisfactory  disposition  of  a criminal case, subject to court approval which often concludes a criminal case.
4          The United States of America operates plea bargain fully, Rule 11(e) of the Federal Rules of Criminal Procedure of the United States of America states that plea bargain must take place before trial.
5     In the United States of America, National Prosecution Standards have been laid down which the prosecutor must adhere to before making a decision to enter a plea bargain.
6     Apart from the National Prosecution Standards, in making a decision, the prosecutor must be guided by public interest before entering into a plea bargain.
7          Under the US system, the judge does not participate in plea bargain discussions, and will  only  authorise  a plea  bargain  where  the  defendant  makes  a  knowing  and  voluntary waiver of his/her right to a trial, understands the charges, maximum sentence if he/ she pleads guilty, makes a voluntary confession in court to the alleged crime, and there is factual basis to support the charge.
8          Plea bargaining is time saving and expedites the conclusion of the criminal process without the need for formal trial.

9          The use of plea bargaining system in the United States of America has reduced the cost of criminal justice from $76 billion to $3.8 billion annually.
10        Plea bargaining usually gives the defendants less punishment than they would receive if they were found guilty of all charges after a full trial.
11        Some of the criticisms of plea bargaining include:

a.         Plea bargaining has been criticized as being unfair to criminal defendants for it gives prosecutors too much discretion  in choosing the charges that a criminal defendant may face. b.         Prosecutors   use   overcharging   to  coerce   guilty   pleas  from   defendants   thereby depriving them of the procedural safeguards and the full investigation of the trial process.
c.         Defendants could face prosecutorial coercion due to the lack of level playing fields between the criminal defendant and prosecutor during plea bargaining.
d.         Refusal to plead guilty and accept plea bargain could lead to the criminal defendant being charged with a more serious offence.
e.         The Prosecutor is not bound to honour the terms of the plea bargaining agreement.

12        The suggestion that plea bargaining “usually involves the defendant’s pleading guilty to a lesser offence in return for a lighter sentence” also distorts the reality of plea bargaining by ignoring the vast array of concessions that may be offered to a defendant in exchange for his guilty plea.
13        A troublesome  derivative  of plea bargaining  in the United States is over charging which is used to coerce guilty pleas.
14        Guilty plea or plea bargaining is not restricted to misdemeanours alone, it extends to felonies as well.
15        Some  of  the  factors  that  necessitate  the  practice  of  plea  bargaining  in  courts  in

America and other places are present in Nigeria today.

16        The presence of counsel during the negotiating stage of plea bargaining constitutes satisfactory safeguards.
17        The Supreme Court has enormous powers to interfere in issues relating to sentences passed by lower courts, but it has however set criteria for interference for itself.
18        First offender  status  could  be combined  with  other  mitigating  factors  to reduce  a prison sentence
19        Our courts in recognition  of the delay which is at times inevitable  if justice  is to prevail reflects this recognition while sentencing so that an offender is not worse off for being detained in the course of his trial, especially when a prison sentence is to be imposed.

20        Courts are sometimes moved by the conduct of the offender when sentencing

21        Where an accused person pleads guilty, he saves the time of the court, witnesses and the prosecution.
22        Aggravating  factors  could  either  lead  to  the  enhancement  of  the  punishment  or playing  down  the  mitigating  factors  in  which  case  the  offender  will  be  deprived  of  the possibility of having a lighter sentence.
23        Mitigating  factors  in  sentencing  are  not  mutually  exclusive  and  could  not  be combined together to produce desired results by the Court.
24        Plea bargain is one of Nigeria’s attempt at institutionalizing the concept of restorative justice.
25        Conceivably, the most dominant source of the criticism against plea bargaining can be traced to retribution as a penal philosophy.
26        There  is  a  view  that  plea  bargaining  process  is  being  abused  via  paying  back  a fraction of the money that had been stolen.
27        The  guiding  principle  of  the  new  Criminal  Law  of  Lagos  State  2011  includes rehabilitation, restoration, deterrence, prevention and retribution.
28        The practice of plea bargaining cannot be divorced from restorative justice.

29        There had always been provisions in Nigerian laws for the accused person to plead guilty to a charge or charges leveled against him in a court of law.
30        The  statutory  basis  for  plea  bargain  in  Nigeria  is  Section  127  of  the  Criminal

Procedure Act (CPA).

31        Provisions have always existed in our procedural laws on amendment and substitution of charges (Sections 162 and 163 CPA).
32        Specific  plea  bargaining  provisions  in our laws include  Section  14(2) EFCC  Act,

2004, Section 76 of the repealed Criminal Justice Law of Lagos State, 2007, Section 76 of the

Administration of Criminal Justice Repeal and Renactment Law (CJRRL) 2011, and Section

248(2) of the 2005 Administration of Criminal Justice Bill.

33        Plea bargaining was never part of the history of the Nigerian legal system.

34        Plea  bargaining  was  introduced  to  our  statutory  laws  with  the  creation  of  the

Economic and Financial Crimes Commission (EFCC).

35        Plea  bargaining  under  the  Lagos  State  dispensation  encapsulates  both  plea  and sentence  bargain;  preserves  and/or  reckons  with  rights/  interests  of accused,  victims,  the community and the investigator; reckons with the nature and circumstances of the offences;

subjects the process to review and validation by the presiding judge; and reduces the risk of abuse.
36        The  economic  underpinning  s  of  plea  bargaining  indicates  that  it  could  save  tax payers money and enrich the public treasury, especially where the  bargain includes recovery, forfeiture and refund of substantial sums of money, and includes gorging provisions.
37        The  challenges  facing  our  justice  delivery  system  includes  delays  in adjudicatory process, undue reliance on technicalities in adjudicatory process, inadequate funding of the judiciary, encroachment on the independence of the judiciary, deliberate subversion of constitutionalism,  lack  of  due  process,  absence  of  rule  of  law,  breaches  of  fundamental human rights and ethics of professionalism, lack of transparency and travesty of good governance.
38        Congestion of cases in courts, long adjournment of cases, indiscipline on the bench and the bar, corruption among officials of the judiciary, missing files, shameless demand for gratification before administrative duties in the judiciary are carried out, prohibitive cost of filing fees in the litigation process, incompetence and unqualified judicial delivery system, lack of confidence by the rank and file on the judicial process, wide spread adoption of sharp practices outside the framework of the legal system and absence of political will to apply and enforce the law are more challenges.
39        In many common law jurisdictions, plea bargaining is applied only to the extent that the prosecutors and the defence can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder.
40        A survey  of its application  in some  common  law jurisdictions  shows  that a legal framework or some form of legislation regulating the expected roles and limitations of all stakeholders involved in the process is put in place.
41         Upon its introduction into Nigeria via the EFCC Act, plea bargain had been applied in a number of cases, particularly those bordering on economic crimes.
42        Plea bargaining as introduced by the Act gives the commission limited plea bargain options.
43        Plea bargaining  assist prosecutors  and the courts in the effective administration  of justice by doing away in delay in the dispensation of justice. Use of plea bargaining can save the prosecutor from the burden of proving his case beyond reasonable doubt.
44        The present criminal process arrangement in Nigeria is grossly inadequate, and may have  accounted  for  the  arbitrariness  and  uncoordinated  approach  in  the  implementation option.

45        Plea bargain has some similar feature to a contract, in terms of legality the fact that a contract becomes void due to illegality in this case, legality  of plea bargaining equally gives an accused person the right to decide what his plea should be.
46        Guilty plea in itself is not sufficient mitigating factor to justify leniency.

47        A guilty plea is usually a part of a plea bargain.

48        Banning the application of plea bargain does not eliminate all guilty pleas.

49        In the United States, plea bargaining operates in the form negotiation  between the state and an accused person.
50        A  criminal  defendant  has  a  right  to  accept  or  refuse  plea  bargains,  he  can  also derogate from plea bargaining
51        The  process  of  plea  bargaining  could  be  initiated  by  all  stakeholders  including victims, offender and prosecutor.
52        A challenge facing the application of the discretionary principle of plea bargaining is its alleged selective and discriminatory application.
53        Plea bargaining may work for lesser offences not economic  crimes and corruption cases.
54        The law reform commission  is harmonizing  the Criminal  Procedure  Act, Criminal Procedure Code, Criminal Code and Penal Code hopefully the issue of plea bargain may be addressed.
55        Plea bargaining is used as a last resort when the system cannot prosecute a case fully.

56        In Nigeria what we have is compounding an offence and compounding extinguishes criminal liability.
57        Lagos  State  through  their  administration  of  Criminal  Justice  Law  made  a  clear provision for Plea Bargain.
58        The Prosecutor should understand that his role is to prosecute and not persecute and must understand clearly what public interest is.
59        Our criminal justice system recognizes that it is only the Attorney General that can discontinue a proceeding against a criminal.
60        In Nigeria the accused person who used the option of plea bargain remains an ex- convict and cannot hold public office
61        The  practice  of  plea  bargain  cannot  be  separated  from  the  practice  of  restorative justice, both seeks to restore criminals and the victims.’
62        It is better  to restore  victims  to the place  where  they were  before  the crime  was committed.

63        There are several opportunities under our laws for the Attorney General to use plea bargain.
64        There is no need for an amendment of section 174 and 211 of the constitution.

65        The  cost  of imprisonment  in Nigeria  makes  plea  bargain  imperative  to the entire system.
66        Plea Bargain  ensures full restitution;  it addresses  the issue of fast criminal  justice administration.
67        The problem  is that the institutions  in Nigeria are weak, human capital should be enhanced.


1.         Plea bargaining though useful in cost, time and human resources  savings, requires some edge trimming even in the US.
2.         Nigeria  has reached  a stage  in its developmental  process  when  it has to face  the challenges  facing its justice  delivery  system  and explore  viable options to move its legal system forward.
3.         Government must not leave plea bargaining as a practice of courts, and go further to make legislation.
4.         There is need to look at some other forms of punishments including non- custodial punishments using guidelines on sentencing to obliterate or eclipse the likelihood of gross abuse by the courts and provide scope of operation.
5.         More effort should be made by counsel to furnish the Courts with relevant facts which could enable the judge to pass an appropriate sentence.
6.         Judges  should  devote  more  time  in  reviewing  and  where  necessary  inquire  from relevant materials necessary before passing their sentence.
7.         The number of years of imprisonment awarded should always appear so that anybody carrying out research on sentencing practice could appreciate the trend and the degree of the variation in sentencing.
8.         Those  responsible  for  reporting  cases  should  endeavour  to  remember  to  always include  aspects  relating  to “Allocutus”,  bearing  in  mind  that  some  still  include  it at the moment, It should be a regular feature.

9.         It should be mandatory that judges should give reasons for the sentences imposed to be able to advert to its guiding principles.
10.       Practice direction on sentencing should be laid down by the superior courts, more appropriately  the Court of Appeal  as the need arises especially  with respect  to prevalent offences.
11.       Prosecuting counsel should, whenever necessary, emphasize the aggravating factors, by showing for example the prevalence of the offence and urge a deterrent policy.
12.       Judges should familiarise themselves with the conditions in our prisons and should visit them from time to time to get firsthand knowledge of the sentence involved.
13.       Seminars should be organized from time to time for judges to deliberate on sentencing practices.
14.       Statistics of reports of after effects of particular sentences should be kept. These may form the basis of useful discussion at seminars.
15.      More sentencing options such as suspended sentence, partly suspended sentence, community service order and weekend imprisonment should be created to reduce reliance on imprisonment as a form of penal sanction.
16.        Sentencing and treatment of offenders should be taught both at the undergraduate and professional levels.
17.       Plea  bargaining  should  be  viewed  from  a  holistic  angle  of  both  restoration  and retributive models of justice to avoid giving the impression of immunity from punishment, freedom from guilt and escape from punishment. This will also reduce the chances of making a mockery of the criminal justice system.
18.       Practice direction should be given by Chief Judges on procedure to be followed as regards the quantum of restitution, restoration, compensation and sentence of imprisonment to be made in cases bothering on fraud, breach of public trust and corruption.
19.       It is imperative for law enforcement efforts to be focused on detection and prevention of crimes rather than concentrating on dealing with the end result of crime.
20.       Law  enforcement  agencies  and  their  personnel  should  be  equipped  with  forensic science capabilities and high tech equipment that have capacity to, for instance, track down and incapacitate terrorism financing, economic and financial transactions that border on criminality, cyber crimes and more.
21.       The capacity of law enforcement  agents and their support staff should be built for more effective discharge of their duties.

22.        Substantial  justice  uninhabited  by servitude  to technicalities  is imperative  for the success of this option.
23.       There is the imperative need to build the capacity of prosecutors and end the rampant practice of outsourcing criminal prosecutions to private legal practitioners, unless cogent and verifiable reasons compel otherwise.
24.        There is an imperative need to take a cue from the Lagos State model.
25.       There  is the imperative  need to engender  integrity  in the criminal  justice  system. There is a need to institutionalize a regulatory framework for the operation of plea bargain in Nigeria in line with our peculiar circumstance.
27.       Need  for  prosecutors  to  be  highly  knowledgeable  particularly  in  prosecution  of criminal matters, and must be conscious of his duty to prosecute and not to persecute in every case.
28.       Preservation of public interest, sense of justice, integrity, fairplay, sense of balance, practicability and feasibility should be behind the minds of prosecutors at all times.
29.       Prosecutors should have the ability to recognise and predict/ approximate the outcome of true adjudication at a lower cost when opting for plea bargain.
30.       Cost  and  benefit  analysis  should  be  considered  in  order  to  save  time  and  avoid unnecessary  public  trials  and protect  innocent  victims  of crime  from  going  through  trial process ordeals which could engender their privacy and expose them to unnecessary risks.
31.       Prosecutors should guarantee transparency of the plea bargaining process via avoiding inducement, threats or coercion.
32.       Effective  confidence  building  measures  should  be  devised  for  parties  to  the  plea bargain option.
33.       Critical  to the  success  of plea  bargain  in Nigeria  is the  need  to institutionalise  a standardised legislation that would guide the practice and define clearly the role of the prosecutor, the accused person, the defence counsel, the victim, the judge and the society in order to forestall abuse.
34.       The National Assembly should place a viable mechanism for setting in motion a legal framework  for  the  adoption  of  plea  bargaining  as  part  of  our  criminal  jurisprudence  in Nigeria.
35.       Plea  bargaining  should  not  be  an  exclusive  preserve  of  the  rich;  it  should  be applicable to all criminal cases with great caution in criminal cases, and.
36.       Legislations should be put in place in both Federal and state level to accommodate plea bargaining.
37.       Some  sentencing  guidelines  must  be  made  available  for  judges  so  as  to  ensure impartiality  in the  practice  of  plea  bargaining,  especially  when  it comes  to the  issue  of concession.
38.       Nigerian should consider the option of penal orders as practiced in West Germany when it comes to simple offences.
39.       The Georgian Model of plea bargaining is worth considering when designing a legal framework for plea bargaining in Nigeria.
40.       The process of initiating the plea should be made broader so that any of the party involved can initiate the plea.
41.       The  need  to  use  other  terms  like  plea  agreement,   plea  negotiation   and  plea arrangement is suggested
42.       Before a Plea bargain the prosecution should consider several issues before using plea bargain i.e. the age of the case, whether or not to call witnesses, availability of witnesses and the victims; and the emotional trauma caused.
43.       The accused person must be fully aware of what a plea bargain is all about; there must be factual bases on what the accused is being charged with
44.       A  clear  sentencing  guideline  should  be  worked  out  to  guide  our  judges  in  the execution of their duties to form the guidelines for the execution of plea bargain.
45.       Government should not just leave Plea Bargain as a practice of the courts but it should be looked into with clear guidelines so that it can be enforced by our courts.
46.       Nigerians should appreciate human loss and human indignities suffered in our prisons and opt for plea bargain
47.       There must be a mechanism  for monitoring  the actions of prosecutors,  judges and investigators.
48.       We  must  ensure  that  only  people  who  have  a  sound  knowledge  of  criminal  law processes are given the task of prosecuting plea bargain.
49.       The  Attorney  General  does  not  need  guidelines  it  is  the  prosecutors  that  need guidelines for plea bargaining so there is no need  for the amendment of section 174 and 211 of the constitution of Federal Republic of Nigeria , 1999
50.       In Nigeria an accused person should be allowed to intervene in his case, if he feels his lawyer is being too legalistic he should be allowed an opinion through plea bargain.
51.       To decongest our courts we need plea bargaining in Nigeria
52.       There should be proper investigation before Plea bargain can be brought in
53.       Capacity of lawyers working in the ministry of justice should be built and improved
54.       Our  Prosecutors  go  into  plea  bargain  from  a  position  of  weakness,  we  need  to reposition  our  laws  to  enable  the  prosecutors  enter  the  plea  bargain  from  a  position  of strength.
55.       The law of plea bargain should ensure that corruption is minimized, the law should include double jeopardy, compounding,  prison decongestion, and it should break down the applicability and the framework of plea bargain.
56.       The major problem in Nigerian laws is sentencing; we should have more sentencing options in our laws example suspended sentence.
57.       There  is  need  to  look  at  plea  bargaining  from  human  right  perspective  not  only economic perspective.
58.       A compensation package should be designed to include all parties.
59.       Plea bargain should be initiated at the instance of the accused,  prosecutor  and the victim.
60.        Nigeria  has reached a stage  in its developmental  process  when it has to face the challenges  facing its justice  delivery  system  and explore  viable options to move its legal system forward.

Professor Epiphany Azinge, SAN Director General