Plea-negotiations, prosecutors and discretion: An argument for legal reform

Abstract

Unlike the cynicism and accountability concerns applied to the use of discretion by police and judicial officers, prosecutorial discretion in plea-negotiations operates essentially free from external scrutiny or transparency. Globally, there is a scarcity of data and research on plea-negotiations, meaning we do not have the capacity to accurately measure their frequency, the contexts in which agreements are reached or to identify patterns in the types of offenders/offences most commonly involved. Additionally, in almost all Australian jurisdictions, plea-negotiations are not recognised as a legitimate legal process in statute, despite empirical evidence from the legal community suggesting their overtly encouraged and common use. Drawing from research in which 51 Victorian prosecutors were observed engaging in plea-negotiation practices over several months, and 54 interviews were conducted with prosecutors, defence counsel, judicial officers and policy advisors, this article intends to reignite discussions of the nontransparency of plea-negotiations in Australia, including highlighting the need for increased criminological research in this underexamined field. The article contends that all Australian jurisdictions should define plea-negotiations in legislation and record data on how often plea-negotiations occur, similarly to the current process of recording guilty pleas. Without such reform, plea-negotiations will remain nontransparent and misunderstood, as there will be no adequate mechanism to understand or examine how negotiations operate in practice or what their true impacts might be.