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The Justice Ministry plans to pass legislation that would formalize, for the first time, the practice of plea bargains in the judicial system, the ministry announced on Tuesday.
Today a majority of criminal cases are resolved through plea bargaining, which is based on guidelines issued by the Attorney General, the ministry explained.
Plea bargains are agreements reached between the prosecution and the defense in criminal cases, usually regarding the contents of the indictment or the sentence to be recommended to the court, in return for a guilty plea on the part of the suspect.
The plea bargain option has aroused much controversy in Israel since it is used so often and so many cases are never aired in court.
According to the ministry's explanation of the bill, "There are those who claim that plea bargains can harm the public interest derived from punishing criminals, the principle of equality before the law, the sense of justice of the accused and the general public by virtue of the fact that justice is negotiable."
On the other hand, continued the ministry, "everyone agrees that plea bargains provide savings in the resources of investigators, prosecutors and the courts. They also spare the accused a long and costly trial and victims of crimes may be spared testifying in court, which can at times be a very difficult experience for them."
During the 1950s and 1960s, plea bargains were looked down on by the courts. Typically reached in secret by the prosecution and defense, they were not presented as such to the court, but in a landmark case in 1971 a court ruled that they were often a necessity.
The draft of the bill, which was circulated on Tuesday to legal experts for their comments before being presented to the Knesset for first reading, begins by stating that a plea bargain will only be arranged if it does not prejudice the public good.
It states that the prosecution must inform the defendant that it is not obliged to stick to the plea bargain if it decides to appeal the case to a higher court.
Lawyers for both the defense and prosecution would have to explain their reasons for reaching such a bargain.
Judges would be able to participate in the plea bargain negotiations as long as these take place before the trial begins. If the negotiations fail, the case would be transferred to another judge.
Since there is a chance a defendant could plead guilty to acts he did not commit, the judges must ensure he understands the plea bargain and its implications, including the possibility the court might not adhere to the recommended sentence.
The legislation allows the defendant to change his mind and rescind the plea bargain at any time during the judicial proceedings until the court hands down its ruling.
Another condition is that the judge will use the plea bargain as his guiding light, but may deviate from it "if he finds the recommended sentence will substantially harm the public good." Lawyers for both the defense and prosecution would have to explain their reasons for reaching such a bargain.