Abstract
Plea negotiations have a long history. However, modern forms of negotiation take place in an ideologically different context with an increasing emphasis on economy and efficiency. Changes in the way governments fund legal services are occurring in many jurisdictions with significant implications for procedural and substantive justice, including a dramatic increase in unrepresented defendants and defendants presenting with some degree of mental impairment (and associated high levels of alcohol and drug use). This chapter examines the prevalence and implications of resourcing constraints in the context of plea negotiations, with a specific focus on unrepresented defendants and defendants presenting with mental health concerns.
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- 1.
Duty lawyers are lawyers from VLA who provide free legal information, advice and representation to clients. This includes duty lawyers working within the criminal law program, who service summary crimes in the Magistrates’ Court and crimes in the Children’s Court. In the 2016–17 financial year, duty lawyers provided 93,697 services (not all of these were criminal cases). As VLA (2017: 22) observe “duty lawyers do not represent everyone. We prioritise serious cases, including people who are in custody or at risk of going into custody and people who need intensive support”.
- 2.
[2016] VSC 532 (12 September 2016).
- 3.
Ibid. [at 57].
- 4.
Ibid.
- 5.
Ibid.
- 6.
VLA has an Independent Mental Health Advocacy Program funded by the Department of Health and Human Services, but this only provides support for those experiencing compulsory mental health treatment, not in criminal proceedings (VLA 2017: 20).
- 7.
Among other offences, Sean Price murdered 17-year-old Masa Vukotic in 2015 and pleaded guilty to murder and a separate rape in 2016.
- 8.
Among other offences, Adrian Bayley was convicted of the rape and murder of Jill Meagher in 2013.
References
References
Baldry, E, Dowse, L & Clarence, M 2011, ‘People with mental and cognitive disabilities: pathways into prison’, Background paper for the National Legal Aid conference, Darwin 2011, School of Social Sciences and International Studies, UNSW. Available from: https://www.mhdcd.unsw.edu.au/sites/www.mhdcd.unsw.edu.au/files/u18/pdf/MHDCDbackgroundOutlaws%20Conf1.pdf [accessed 18 January 2016].
Baldwin, J & McConville, M 1977, Negotiated justice: pressures to plead guilty, Martin Robertson, London.
Baldwin, J & McConville, M 1979, ‘Plea bargaining and the research dilemma’, Law and Policy Quarterly, vol. 1, pp. 223–33.
Bottoms, A & McClean, J 1976, Defendants in the Criminal Process, Routledge, London.
Buckle, S & Buckle, L 1977, Bargaining for justice: case disposition and reform in the criminal courts, Praeger Publishers, New York.
Community Law Australia 2012, ‘Unaffordable and out of reach: the problem of access to the Australian legal system’, Community Law Australia, report.
Euvrard, E & Leclerc, C 2017, ‘Pre-trial detention and guilty pleas: Inducement or coercion’, Punishment and Society, vol. 19, no. 5, pp. 525–542.
Flynn, A 2011, ‘“Fortunately we in Victoria are not in that UK situation”: Australian and United Kingdom perspectives on plea bargaining reform’, Deakin Law Review, vol. 16, no. 2, pp. 361–404.
Flynn, A 2016, ‘Plea negotiations, prosecutors and discretion: an argument for legal reform’, Australian and New Zealand Journal of Criminology, vol. 49, no. 4, pp. 564–82.
Flynn, A & Hodgson, J 2017a (eds) Access to justice & legal aid: comparative perspectives on unmet legal needs, Hart Publishing, Oxford.
Flynn, A & Hodgson, J 2017b, ‘Access to justice and legal aid cuts: A mismatch of concepts in the contemporary Australian and British legal landscapes’, in A Flynn & J Hodgson (eds), Access to justice & legal aid: comparative perspectives on unmet legal needs, pp. 1–22, Hart Publishing, Oxford.
Flynn, A, Hodgson, J, McCulloch, J & Naylor, B 2016, ‘Legal aid and access to legal representation: redefining the right to a fair trial’, Melbourne University Law Review, vol. 40, no. 1, pp. 207–39.
Freiberg, A 2005, ‘Managerialism in Australian criminal justice: RIP for KPIs?’ Monash University Law Review, vol. 31, no. 1, pp. 12–36.
Freiberg, A & Seifman, R 2001, ‘Plea bargaining in Victoria: the role of counsel’, Criminal Law Journal, vol. 25, no. 2, pp. 64–74.
Gazal-Ayal, O & Tor, A 2012, ‘The innocence effect’, Duke Law Journal, vol. 62, pp. 339–401.
Giddings, J 1998, Legal aid in Victoria: at the crossroads again, Fitzroy Legal Service, Melbourne.
Gold, R M, Hessick, C B & Hessick, F A 2017, ‘Civilizing Criminal Settlements’, Boston University Law Review, vol. 97, pp. 1607–1660.
Hodgson, J 2010, ‘The future of adversarial criminal justice in 21st century Britain’, North Carolina Journal of International Law and Commercial Regulation, vol. 35, no. 2, pp. 101–141.
JUSTICE 1993, Negotiated justice: a closer look at the implications of plea bargains, JUSTICE Publications, London.
Laster, K & Kornhauser, R 2017, ‘The rise of “DIY” law: implications for legal aid’, in A Flynn & J Hodgson (eds), Access to justice and legal aid: comparative perspectives on unmet legal need, pp. 123–40, Hart Publishing, Oxford.
Mack, K & Roach Anleu, S 2000, ‘Choice, consent and autonomy in a guilty plea system’, Law in Context, vol. 17, no. 1, pp. 75–92.
Maynard, D 1984, Inside plea bargaining: the language of negotiation, Plenum Press, New York.
McConville, M 2002, ‘Plea bargaining’, in M McConville & G Wilson (eds), The handbook of the criminal justice process, pp. 353–79, Oxford University Press.
McConville, M, Hodgson, J, Lee, B & Pavlovic, A 1994, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain, Clarendon Press, Oxford.
McConville, M & Marsh, L 2014, Criminal judges: legitimacy, courts and state-induced guilty pleas in Britain, Edward Elgar Publishing, Cheltenham.
McConville, M & Mirsky, C 2005, Jury trials and plea bargaining: a true history, Hart Publishing, Oxford.
McCoy, C 1990, Politics and plea bargaining: victims’ rights in California, University of Pennsylvania Press, Philadelphia.
McEwan, J 2011, ‘From adversarialism to managerialism: criminal justice in transition’, Legal Studies, vol. 31, no. 4, pp. 519–546.
Mulroy, S 2017, ‘The bright line’s dark side: pre-charge attachment of the sixth amendment right to counsel’, Washington Law Review, vol. 92, no. 1, pp. 214–252.
Newman, D 2013, Legal aid Lawyers and the quest for justice, Bloomsbury Publishing, London.
Noone, M A 2017, ‘Challenges facing the Australian legal aid system’, in A Flynn & J Hodgson (eds), Legal aid and access to justice: comparative perspectives of unmet legal need, p. 23e42, Hart Publishing, Oxford.
Noone, M A & Tomsen, S 2006, Lawyers in conflict: Australian lawyers and legal aid, Federation Press, New South Wales.
Productivity Commission 2014, Access to justice arrangements inquiry, Report No. 72, 5 September, Productivity Commission, Canberra.
Rebuli, A 2015, ‘The cost of cutting legal assistance funding’, Access to Justice Bulletin: Law Society of South Australia, vol. 37, no. 9, pp. 20–1.
Redlich, A D, Wilford, M M & Bushway S 2017, ‘Understanding guilty pleas through the lens of social science’, Psychology, Public Policy and Law, vol. 23, pp. 458–471.
Smith, T & Cape, E 2017, ‘The rise and decline of criminal legal aid in England and Wales’, in A Flynn & J Hodgson (eds), Access to justice & legal aid: comparative perspectives on unmet legal needs, pp. 63–86, Hart Publishing, Oxford.
Spencer, P 2017, ‘A View from the Bench: A Judicial Perspective on Legal Representation, Court Excellence and Therapeutic Jurisprudence’, in A Flynn & J Hodgson (eds), Access to justice & legal aid: comparative perspectives on unmet legal needs, pp. 87–102, Hart Publishing, Oxford.
Spivakovsky, C 2014, ‘Making risk and dangerousness intelligible in intellectual disability’, Griffith Law Review, vol. 23, no. 3, pp. 389–404.
Ulbrick, M, Flynn, A & Tyson, D 2016, ‘The abolition of defensive homicide: a step towards populist punitivism at the expense of mentally impaired offenders’, Melbourne University Law Review, vol. 40, no. 1, pp. 324–70.
Victoria Legal Aid [VLA] 2016a, Means test changes to financial eligibility thresholds, VLA. Available from: http://www.legalaid.vic.gov.au/information-for-lawyers/how-we-are-improving-our-services/means-test-review [accessed 18 January 2017].
Victoria Legal Aid [VLA] 2016c, Sentencing guidance reference, Submission to the Victorian Sentencing Advisory Council, 12 February, VLA.
Victoria Legal Aid [VLA] 2017, Annual report 2016–17, VLA, Melbourne. Available from: https://www.legalaid.vic.gov.au/sites/www.legalaid.vic.gov.au/files/VLA-annual-report-2016-17.pdf [accessed 30 January 2018].
Victorian Law Reform Commission [VLRC] 2014, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, June 2014, Available from: http://www.lawreform.vic.gov.au/sites/default/files/Review_of_the_Crimes_Mental_Impairment_and_Unfitness_to_be_Tried_Act_0.pdf [accessed 8 February 2018].
Victorian Ombudsman 2014, Investigation into deaths and harm in custody, Victorian Ombudsman.
Vogel, M 2007, Coercion to Compromise: Plea Bargaining, the Courts and the Making of Political Authority, Oxford University Press, Oxford.
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Flynn, A., Freiberg, A. (2018). Pragmatic Justice: At Any Cost?. In: Plea Negotiations. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-92630-8_8
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DOI: https://doi.org/10.1007/978-3-319-92630-8_8
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