Q&A: Plea Bargain Agreements

As former Prime Minister Netanyahu weighs the option of a plea bargain, IDI experts weigh in on the legal standing of such an agreement and its ramifications.

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What is a Plea Bargain?

A “plea bargain” is an agreement between a defendant and the prosecution in which the defendant confesses (in part or entirely) to having committed certain offenses, usually after the facts stated in the indictment have been amended and the severity of the alleged offenses reduced. The prosecution for its part, agrees to drop some of the charges or to a lesser penalty, in keeping with the amended indictment.

What are the rationales underlying plea bargains?

First of all, plea bargains save the time and resources of the courts and the prosecution and reduce the duration of a delay of justice. They limit the potential risk to both parties, of (for example-- an acquittal because of some minor flaw in the evidence, or imposition of too harsh a sentence). Given its current resources, the criminal justice system would not be able to function if every case had to be tried in full.

In extremely complex cases, an evidentiary trial may drag out for years; the delay erodes the public interest and diminishes the impact of the verdict and sentence. When dealing with crimes against individuals, a plea bargain can spare the victim a difficult and traumatic experience that may include testifying and undergoing cross-examination. In addition, the very fact that the defendant confesses, constitutes taking responsibility for the action and acknowledgement that the victim spoke the truth. In a public case, such as that against MK Netanyahu, a confession would be valuable as a de facto acknowledgement that he was not being "framed" and unjustly persecuted.

What are the arguments against plea bargains?

To begin with, a plea bargain may deal a blow to justice: the penalty imposed generally fails to reflect the full severity of the offense and may be harmful to future deterrence. On the other hand, a plea bargain that is especially attractive may lead to false confessions, because the defendant will wish to put an end to a proceeding that is-in his or her eyes-- expensive and difficult to bear. What is more, a plea bargain can undermine public confidence in the courts and the prosecution, by creating an image of legal proceedings as a haggling process (rather than one aimed at uncovering the truth and doing justice). With regard to uncovering the truth, in a public case such as that before us, the public has the right to know whether a crime was committed and what exactly took place. A plea bargain leaves these questions open and deprives the public of its right to get the answer in the court’s verdict.

What is “Moral Turpitude”? Is it part of every conviction?

According to the Israeli Supreme Court, “moral turpitude” is a severe moral defect characterizing the person who committed a crime under the specific circumstances of its commission. A number of laws limit a person’s eligibility to hold a public position if he or she has committed a crime which carries with it- moral turpitude. Sometimes the law grants the court explicit or implicit authority to determine that the crime is one of moral turpitude. Other statutes authorize certain officials, such as the Chair of the Central Elections Committee and the Attorney General, to decide whether, under specific circumstances, an offense carries with it moral turpitude. Moral turpitude is not a punishment, but rather-a classification of an offense committed; its purpose is to ensure that only honest persons serve in positions that require public probity.

What are the implications if Netanyahu is found guilty of offenses of moral turpitude?

The Basic Law: The Knesset, disqualifies a person from election to public office if sentenced to a prison term (including one served by means of community service) exceeding three months when, on the day of submission of the candidate lists, seven years have not elapsed from the completion of serving the sentence. This may be waived if the Chair of the Central Elections Committee determines that, under the specific circumstances, no moral turpitude is attached to the offense of which the person was convicted. If, however, the court’s verdict does attribute moral turpitude to the offense, the CEC chair cannot intervene. What is more, according to the Basic Law: The Knesset, if a Knesset member is convicted of a crime and the court's verdict, of its own accord or at the request of the Attorney General, rules that the offense is one of moral turpitude, the offender ceases to be a member of the Knesset on the day that the verdict becomes final. So if, in the present case, the court convicts Netanyahu and determines that his offense was one of moral turpitude, he will be expelled from the Knesset; and if he is sentenced to more than the minimum penalty, he will not be able to run for the Knesset for seven years—and ipso facto will not be able to form a Government. If MK Netanyahu will resign from the Knesset before that, the determination of moral turpitude and his ability to run in future elections, would probably be determined during those future elections by the CEC chair.

Is it possible to amend the ban on running for office if one has been judged guilty of moral turpitude?

Theoretically, because Israel’s Basic Laws do not have protected status (some of them can be amended by a bare majority of 61 Knesset members), it might indeed be possible to cancel or modify the moral turpitude restriction on eligibility for office. This is another example of why a large majority should be required to amend Basic Laws, so that they cannot be rewritten by any random Knesset majority. This must be done by passage of a Basic Law: Legislation. We may assume that if this applies to past convictions as well, there will be those who will argue that the procedure is improper because of its retroactivity and its personalization (as was charged with regard to the proposal to bar a person facing criminal charges [here Netanyahu] from forming a Government).

Would Attorney General Mandelblit’s signature on a plea bargain agreement, or his verbal assent, be binding on the acting Attorney General who will replace him in another two weeks?

The Attorney General’s signature on a plea bargain agreement would bind his successor. But as long as there are only proposals on the table and negotiations, they have no legal force and the next Attorney General would not be bound by them, although he or she should give due weight to his predecessor’s position and be fair to defendants who negotiated with him.

Assuming that the sides reach an agreement—what procedure is required to revise the new charges to coincide with those against the other defendants?

If the new charge sheet modifies the presentation of the facts in the original indictment (to be compatible with lesser offenses), while, of course, preserving the core of the allegations, it will be necessary to amend the indictments against the other defendants as well, insofar as the issues apply to them, so that they coincide with the facts that have been agreed upon.

If there is no deal in the end, can the fact that negotiations were conducted have any effect on the continuation of the criminal trial?

The negotiations are not supposed to have any impact on the case. This is demonstrated by the fact that after former president Moshe Katsav withdrew his consent to a very lenient deal, the prosecution took its case to court, and he was convicted of rape. The mere conduct of negotiations should have no impact, neither weakening the charges nor as evidence that the defendant had been willing to confess.

Is it possible to tie up all the loose ends in the two weeks that remain until the end of Mandelblit’s term?

It is true that only a few days are left, but this does not rule out an agreement. This is a matter of good will on both sides and a willingness to invest maximum effort.

Can the court decline to accept a plea bargain agreement?

Yes. In rare cases, the court can refuse to approve the plea bargain. Especially when it comes to the sentence, it can deviate from the terms of the agreement, notably when the penalty proposed is unreasonably lighter than what it sees as appropriate and in keeping with the amended charges of which the defendant is convicted. Thus, it is likely that the indictment will be amended in good time, with regard both to the charges and the account of the actions, while maintaining the core of the charges based on them.

Can the High Court of Justice intervene in a plea bargain?

The High Court of Justice is empowered to conduct judicial review of a plea bargain if it finds a substantive flaw in it. But here the judicial review power is extremely limited, in view of the broad professional discretion allowed the Attorney General, and would be exercised only if there is a clear and substantive deviation from the professional discretion granted him. The court has ruled, for example when it rejected applications against the plea bargain with Katsav, that it will not seek to fill the Attorney General’s shoes and weigh the issues (such as the validity of the evidence) in his place, but will consider only whether his decision was reasonable.