Yoav Sapir - Tomer Appelbaum - 16012012
New public defender chief Yoav Sapir in court last year. Photo by Tomer Appelbaum
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On Monday, the Knesset Constitution, Law and Justice Committee will consider a government-sponsored bill aimed at regulating the proliferation in recent years of criminal cases ending in plea bargains.

According to police prosecution data, 77 percent of criminal cases in Israel end with plea bargains - under which a defendant agrees to plead guilty to a lesser charge, or to the original charge in return for a more lenient sentence.

By enshrining the procedure in law and making it more transparent, the committee hopes to minimize the often controversial deals. The practice has never been regulated by law, and its evolution is due to state prosecution rulings and guidelines.

The committee will have to decide how courts examine plea bargains in a way that would best serve the public interest, especially when approving plea bargains that otherwise would bear heavier sentences.

According to the Knesset Information and Research Center, plea bargains are widespread around the world. In 2009, for example, more than 95 percent of defendants found guilty in the U.S. agreed to a plea bargain.

The committee will have to determine when and how a judge might choose not to approve, or change the results of a plea bargain if he determines that the agreement would essentially harm the public interest.

The lawmakers will have to choose between three different approaches concerning the way judges should deal with problematic practice. Under one approach the court should reject a plea bargain in all cases in which the sentence deviates significantly from the appropriate punishment for such crimes. Another approach calls for the courts to reject bargains that "clearly and plainly" harm public interests, and a third approach states that the court should determine whether the correct balance has been set between the concessions received by the defendant and the benefit to the public interest.

Justice Miriam Naor, who headed a criminal law advisory committee, proposed that a judge examining a plea bargain would not have to determine the exact punishment he would have otherwise decided on, but rather examine the punishment both sides agreed upon in the bargain, and determine if the sentence is appropriate to the crime committed and the defendant's guilt.

According to Naor's recommendation, judges can deviate from this principle when deciding to be lenient in cases when the defendant can be rehabilitated, or more stringent when there is a danger to the public.

Yoav Sapir, the new head of the Public Defender's Office, does not believe that any bill could reduce the number of cases in which the courts accept controversial plea bargains. Sapir told Haaretz on Sunday that it is indeed time to "set and legally determine clear guidelines dealing with plea bargains, since most cases end with bargains," but added that "much of the criticism of plea bargains is not justified and stems from ignorance of the relevant facts of the case."

Sapir said that "in our legal system the prosecution has immense power in choosing the charges and facts in the indictment, and the courts have no way to inspect these choices since no evidence is heard in plea bargains, and the court can only be critical of the final punishment."

Plea bargains save the enforcement agencies and the courts much money and time, while allowing the prosecution to focus on serious crimes and law enforcement.

On the other hand, plea bargains are criticized for encouraging defendants to waive certain basic rights in criminal procedure, such as confronting their accusers and holding cross-examinations. Moreover, plea bargains can encourage innocent defendants to plead guilty to crimes they never committed.

Other critics say that plea bargains undermine the public's trust in the courts, because it seems that justice is subject to negotiations and bargaining.