Pre-trial agreement and plea bargain: pragmatism without conflict with morality?

Abstract

A comparative legal analysis of plea bargain in the continental Europe, England and the USA is conducted. The history of the plea bargain emergence in common law is examined, its features are shown. Such agreements to plead guilty are often reached after bringing a charge. The freedom of agreement is guaranteed by the powers of police, court and public prosecutor to decide on the severity of the charge, its change or dismissal (partial or complete). An obvious “conflict of interests” is shown: the economic benefit of plea agreement is complicated by ignoring the public morality principles. It doesn’t allow to use the same form of plea bargain in the Russian realities: the essence of the pre-trial agreement institute doesn’t imply that the defendant pleads guilty, but contributes to solving a crime (disclosure of information about accomplices, compensation for damage). The proposals to improve the regulation of the Russian pre-trial cooperation agreement are made. The foreign models of plea bargain are studied: German, French, Spanish, Italian and Portuguese. Their comparison allows to conclude that such deal can be used in different national legal systems and in various models of criminal procedure. It’s argued that the institution of pre-trial agreement is the objective response of the Russian law enforcement bodies to modern challenges. American model of plea bargain can be considered optimal despite its shortcomings. Other states don’t accept it unchanged. Russia also has to transform the western model of plea bargain, taking into account the requirements of the domestic legal culture.

Keywords

• plea bargain
• pre-trial cooperation agreement
• admission of guilt
• conciliations