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By Jaelyn Haile

Our team assisted the International Justice Mission (IJM), Ghana, by providing a comparative law memorandum on plea bargaining in cases where charges carry a mandatory minimum penalty. We sought to answer whether courts could circumvent mandatory minimums through plea bargaining by comparing the approach of the United States, Germany, and Uganda on the issue. The diverse legal traditions and plea bargaining statutes in these nations provided a rich research environment from which we discussed the policy advantages, disadvantages, and rationales for different plea bargaining regimes.

Photo by Perawit Boonchu on Vecteezy

Plea bargains exist in three main forms: charge bargaining, sentence bargaining, and count bargaining. In each case, the defendant respectively pleads guilty in exchange for a reduced charge, lighter or alternative sentence, or fewer counts. Mandatory minimums are statutes that provide for sentences such as an imprisonment term “not less than” a certain number of years or a single sentence statute mandating a severe penalty such as life imprisonment.

We learned that the policy debates on plea bargaining and mandatory minimums are complex and nuanced. Plea bargaining increases judicial efficiency by allowing courts to process a high volume in a quick manner, rewards cooperating witnesses by reducing their sentences, and allows courts to individualize sentences based on the defendant in the case. However, plea bargaining may risk coercing innocent defendants to plead guilty or give prosecutors too much discretion in sentencing, a role traditionally reserved for the judge. Mandatory minimums provide advantages such as public deterrence and sentence uniformity. But some argue that they give too much prosecutorial discretion and cause consequential disadvantages like disparate racial impact, law circumvention, and guilty plea incentivization.

Our research revealed that courts cannot circumvent mandatory minimums through plea bargaining. In the United States, prosecutors and defendants must negotiate a lower charge in exchange for a guilty plea to avoid the mandatory minimum penalty (charge bargaining). In Germany, charge bargaining is precluded, and courts have a high degree of sentencing discretion. Therefore, rather than encountering a conflict between mandatory minimums and plea bargaining, Germany provides highly individualized sentencing in which the judge selects a penalty from a broad, statutorily-provided sentencing range. In Uganda, courts are also given broad sentencing ranges and laws often only prescribe a maximum penalty without a mandatory minimum. Like Germany, Uganda’s plea bargaining regime avoids a conflict between a plea bargain and mandatory minimums.

Regardless of the plea bargaining regime a country implements, we learned that courts must respect the rule of law by not sentencing below the mandatory minimum if a defendant is charged and convicted for an offense carrying such a penalty.

This post was written by a Center for Global Justice law clerk. The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.