Leiden Law Blog

To plead or not to plead? Now Finns have to worry about it too

To plead or not to plead? Now Finns have to worry about it too

Anyone who has ever watched legal drama shows is familiar with the classic, every so often occurring dilemma: the plea bargain. In short, plea bargains are defined as deals, between a defendant and a prosecutor, in which the defendant makes a guilty plea and consequently foregoes his right to trial in return for a certain benefit, namely, a more lenient sentence. Plea bargains have a long history in some countries but there has been a recent addition to the list of states in which they are allowed: Finland. As of 1 January 2015 plea negotiations have been allowed in Finland for crimes where the maximum penalty is six years in prison. Homicides, causing bodily injury to another person, and certain sex crimes have been excluded from the sphere of plea negotiation.

Why was the practice introduced into the Finnish system?

It is easy to understand the appeal of plea bargaining from the perspective of the Finnish legislator. The justice system is strained and judicial proceedings take increasingly more time. Consequently, the European Court of Human Rights has made several decisions, such as Landgren, Horsti, Taavitsainen, and many more in 2009 alone, where it considers the state of Finland to have violated Article 6 of the European Convention on Human Rights due to its failure to organise judicial proceedings within a reasonable time. For instance in financial crimes the average length of the criminal procedure from pre-trial investigation to the decision of the court of first instance is 1088 days. Of this, the case spends, on average, 304 days in the court of first instance. Plea bargains are a cost-effective way to reduce the time proceedings take and thus relieve the burden on the judicial systems.

The Finnish legislature is not alone in its decision to embrace the practice. As the government proposal for the policy pointed out, plea deals are used in many countries, and the practice has been accepted by the European Court of Human Rights and even encouraged by the Council of Europe Committee of Ministers. While some countries are careful to restrict the use of plea bargains, others embrace it wholeheartedly: nowadays in the United States in some 97% of all federal cases, excluding those that are acquitted, a sentence is followed by a guilty plea while only 3% go to trial.

What is there to worry about?

Throughout its history, plea bargaining has faced its fair share of fierce critique. A study has showed that innocent people often choose to admit quilt if, by doing so, they gain a benefit. This theory is supported by the fact that almost 10% of the individuals the Innocence Project has helped to get exonerated through DNA evidence had falsely pleaded guilty. Shocking as it seems, the phenomenon is not all that surprising considering the drastic effect a guilty plea may have on the sentence.

However, the concerns over the practice of plea bargaining are not limited to false guilty pleas. Already in the preparatory stages of the policy, the parliamentary ombudsman of Finland voiced his concerns over the equality and realisation of justice if the policy was to be introduced. Similar concerns have also been raised in the U.S. by judge Rakoff, who noted that plea negotiations often take place behind closed doors and thus avoid the direct judicial supervision of the courts. With the imbalance in power between the defendant and the prosecutor in mind, some have even gone as far as to call plea bargaining torture.

In order for the justice system to treat defendants equally, there should be a clear answer as to how much a confession should weigh. Additionally, each defendant – regardless of the evidence collected against them – should be given the opportunity to accept a plea bargain. These issues call for the systematisation of plea bargaining, which would, consequently, turn the practice into a deduction automat. After all, guilty defendants have nothing to lose but a lot to gain by pleading guilty.

Setting aside the principled objections against plea bargains, what makes them particularly tricky in Finland’s case is the public perception of too lenient sentences. Every once in a while an incident, such as the Tapanila rape case in May 2015, comes to light and causes a public outcry for stricter sentences. The current practice for courts is to use the lower half of the sentencing spectrum for most crimes. In 2007, for instance, the average duration of an unconditional custodial sentence imposed by a court of first instance for a robbery was 11.5 months in prison, though the Criminal Code of Finland sets the scale of punishment between four months and six years’ imprisonment. Further, only 234 of the total 430 robbery convictions were imposed as unconditional prison sentences. Considering the generally lenient sentences, it is very problematic to add plea bargaining into the mix. Naturally, in order for the idea of plea bargaining to work in practice, pleading guilty must be made appealing enough. When a noticeable chunk of the sentences currently imposed in Finland is deducted, what will there be left to serve as a punishment?

So, what now?

The aim of justice systems is to serve justice and the purpose of the criminal procedure is to make sure that those who commit crimes are punished to, and only to, the extent to which they deserve to be punished. Sentence-oriented plea bargaining may be effective with regards to the processing times, but is it safe to say justice will be served? If the procedure focuses on handing out punishments while disregarding their quality and making the judges mere stamp officials, who is there to supervise that the procedure has been conducted appropriately and that the sentences reflect the reprehensibility of the act?

As plea bargaining was only recently introduced in Finland, there is currently no data to show the consequences of the change in legislation or the frequency of use of the policy. Nevertheless, plea bargaining poses a threat not only to the rights of the defendants, but also to the general trust towards the judicial system in Finland. In order to avoid the misuse of the policy and to guarantee equality and fair practice, there is an urgent necessity for carefully placed restrictions and clear guidelines concerning the use of plea bargains. Additionally, it pays to revisit the current practice of using the bottom half of the punishment scale as it does not mix well at all with plea bargaining.

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