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[DEBATE] Amendment to the Judicial Act (Plea Bargains)
#14

I don't have issues with the general intent of the bill, though I'm not a fan of how it's put into practice in the proposal. In general, I prefer language that eschews specific enumeration in favor of general language that is robust to changes in other places of the law and doesn't leave too much room to "rules lawyering". Particularly in this case, the bill is awkward to read as, for example, 5.4.e-5.4.f are a separate item from 5.4.a-5.4.d, particularly since we tend to use sub-sections exclusively for enumerations. I would like to see that cleaned up significantly before it goes to a vote.

I don't see why the court has to be in deadlock over this issue. The High Court is the sole body with judicial authority in the region, so unless their lawful procedure were to prevent a ruling on it (in which case it would be the job of the assembly), they can rule on the legality of plea bargains. That being said, Sasha's argument regarding the judge becoming prejudicial is compelling, and supported by Judicial Act Article 2.1. As it stands, I would say that plea bargains during a criminal case are legal if and only if the bargain is not performed by the judge assigned to the sentencing case.

Now, to clean up the actual language and make it more generally applicable, it might be worth going back to what we're trying to solve. It's not the act of a lessened sentence for an individual that was indicted but is cooperative that is the problem, but rather the process by which such a lessened sentence can be brought about, and even formalized, by the same judge delivering the verdict and potentially the sentencing in the first place. The Judicial Act does separate sentencing from verdict by design, so this may be an appropriate place to hook into the law.

Another point is that, as OP already stated, in our non-adversarial system, we don't have a classical "prosecutor" role. Such a prosecutor would be able to handle plea bargains, but not be responsible for delivering the sentencing; that is still the job of the judge, who handles that sentencing based on the sentencing recommendation delivered by the prosecutor.

Putting these two components together, I can think of a simple and elegant solution: The criminal judge may not be assigned to the sentencing case. That way, plea bargains during the criminal trial can be made if appropriate, but the only thing the criminal judge making the bargain may promise is a sentencing recommendation with a lighter sentence based on the extent of the charged individual's cooperation. That should do it, right?
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RE: [DEBATE] Amendment to the Judicial Act (Plea Bargains) - by Roavin - 10-23-2019, 07:44 PM



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