That special deal

-- 14 July 2009 --
TEXT: A. Bogomazov
PHOTO: Sergey Galushko -


'Torpedo' is a criminal who gambled away his own life. Among felons a bet like that is fair and lawful. But we are not like them. In our society - we are proud to think - life cannot be the subject of a bargain.

With the Federal Law #141-FZ 'On changes to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation' the plea bargain, an agreement between the prosecutor and the defendant, has been brought into Russian law. The system of pre-trial arrangements is a fundamental change. The very culture of criminal justice will now be different.

The organised crime is the target of the law; white collars are potential victims.


New old friend

In theory, the purpose of Russian law is to search out the truth. Justice as a deal is a perfidious treachery of the ideals. Yet, the reality is blatantly candid: a trial as a fair battle between the parties has been a dream promoted by theory, but it is not the experience of Russian people. Thus, the plea bargain is a novelty to law, but a commodity to the actors on the scene of justice.

From July 1, 2002 the 'Special Procedure of the Trial' has come into force. It can be applied to the offences with the maximum sentence of ten years of imprisonment or less. According to the 'special procedure' the accused can plead guilty in exchange for leniency in sentencing. The bargaining power of the parties, though, is restricted by law: the prosecutor - in theory - cannot drop or change charges; the prison term cannot be more than two thirds of the maximum established by law.

Although the hearing, simplified, will take place anyway, and the judge must examine the evidence, in practice it is a formality. A decision taken under the 'special procedure' is, effectively, final: it cannot be appealed against on the grounds of flawed evidence or procedure.

The Federal Law #141-FZ, which comes into effect on July 14, 2009, lifts the bar: now life sentence or even the death penalty can be the subject of a bargain. Also, for the first time in Russian history, a written contract between the accused and the prosecutor has come into existence. The defendant must agree to provide evidence against someone else in exchange for his life.


Back to the future

The system of plea-bargaining was shaped in the United States in the middle of the nineteenth century. What kind of country it was at that time is shown in the Scorses's blockbuster 'Gangs of New York': few wealthy merchants living in small enclaves, and the rest - unskilled labourers, a boiling pot of recent immigrants from Scotland, Ireland, England and France, and free blacks attracted to the city by its manumission laws.

According to Rosenwaike's 'Population history of the New York City' by 1845 New York had app. 371,000 inhabitants, of which 36% had been born abroad. Four per cent of population controlled at least ninety per cent of the City's wealth.

Crime was common, similar, and lumped within a certain social stratum. Burgeoning caseload entailed quick replacement of jury trials by the system of arrangements: in the middle of the century about half of the felony indictments ended up by guilty pleas, and by the 1900 this figure had risen to ninety per cent. Today, at least statistically, criminal justice in the United States is not a legal battle of opposing lawyers, but a bargain.

It is difficult not to see an analogy between the Unites States of the 19th century, and the today's Russia: colossal disparity in wealth, ineffective and corrupted bureaucracy, uncontrolled inflow of unqualified labourers, and rapid marginalisation of the poor. Change of economical formation is always followed by the growth of crime. Still, the duration and momentum of the criminal swell is chilling. 'We were happy to see changes in 1980s,' Dmitry, an entrepreneur says, 'but we were shocked by the crime that emerged.'

The state suddenly stopped being paternalistic, and now it looks in bewilderment at citizens who appear to have got used to misbehaving, and have no intention of being good again.


Economical justice

The interest of prosecutors in the system of bargains is clear: they can concentrate fewer resources on a smaller amount of cases. But why do the accused give up their right to compel the state to prove the case? The answer is the gap between the possible outcome in the event of a guilty plea and a sentence delivered as a result of a trial.

Paul Lewis Hayes, for example, was arrested for an attempt to pass a forged cheque of $88.30, an offence punishable by a prison sentence of two to ten years. Prosecutors told Hayes that he would get five years if he pleaded guilty. They also made it clear that if he chose to go to trial the state would seek a new indictment from a grand jury under Kentucky's 'Habitual Criminal Act', which carried a mandatory sentence of life in prison. Despite the enormous pressure exerted upon him Hayes, who already had two felony convictions, refused to accept a five year sentence for an $88-crime. As a habitual offender he was sentenced to life imprisonment and has been in jail ever since.

Hayes argued all the way to the Supreme Court that his sentence was effectively a punishment for his refusal to 'save the court the inconvenience and necessity of a trial'. In 1978 the Court ruled that since Hayes was free to accept or decline the state's offer, and knew the potential consequences of each option, there was no coercion.

John Langbein, a professor of law at Yale, explains: 'If you let me, the prosecutor, increase the sentencing disparity enough, I can get anyone to concede guilt to almost anything. Suppose,' he says, 'I've got 20 bishops ready to testify that I didn't overstay the parking meter. But the choice is plead guilty, pay a fine or face a possible death sentence. What do you think? I plead guilty.'

Albert Alschuler and Andrew Deiss illustrate the point by the following, very Russian, case they described in the University of Chicago Law Review. In the early 1990s Robert H. spent six months in Atlanta jail before having a meeting with a public defender. When they finally met, she told him that he had been charged with a felony, but if he pleaded guilty he could go home that day because he had served the time already. If he insisted on his innocence he would be kept in custody for another year waiting trial. Robert pleaded guilty. Later, authorities realised that due to a bureaucratic error, he had been mistaken for someone else and should never been arrested, let alone convicted.

On Russian soil the problem is harsh. The detention facilities are overcrowded, living conditions of the accused are harder than those of the convicted, and waiting for a trial can take many, many months.


Do not trust, do not fear, do not plead

The story gets fishier when the accused is promised a lighter sentence, or even life, in exchange for help to convict another, less co-operative defendant. That choice is known as the 'prisoner's dilemma' and in its classical form it goes like that.

Two suspects are separated in different cells. The police, lacking evidence to secure a conviction, make the following proposal to both: If one testifies against the other and the other remains silent, the betrayer goes free and the silent accomplice receives the full 10-year sentence. If both remain silent, they are sentenced to only six months in jail for a minor charge. If each betrays the other, both receive a five-year sentence. The rational strategy, mathematicians say, is to admit the crime, even if you are innocent.

This tactic is as old as justice. In the classical Russian drama 'The meeting place cannot be changed' a policeman, played by Vladimir Vysotsky, offers a life or death choice to the accused who is, as later becomes evident, completely innocent: 'I wish to hear about your accomplice Fox. I wish to organise a race: who will disclose more and more quickly about the other. Which of you will be the organiser of the crime [and be sentenced to death], and which, his assistant [and be imprisoned] will depend on that.'

The manoeuvre, though, does not work when the defendants can predict each other's choices. And that can be possible when accomplices have a sense of unity.

The revolution of 1917, paradoxically, brought to life not only socialism, but a unique criminal community. This twilight world is based on principles, shared by its members, the authority to resolve disputes and the power to enforce decisions. The most important rule is not to co-operate with the state, which, of course, includes not giving evidence against others.

The idea of the new law is to raise the stakes and push the unwilling to cooperation. From July 14, the state can trade not only sentence reduction but life. And that dramatically increases its bargaining power. On the other hand, the law seeks to speak out loudly the terms of the arrangement between the defendant and the prosecutor, and that makes the whole deal fishy. 'A felon, who gives evidence against someone else, will eventually go to prison where criminal laws are very powerful. He will have to answer not only to his accomplices, but to the criminal world as a whole,' says Andrey K., a criminal investigator.


The ultimate target

The law is deemed to be