Philippine judiciary

[ANALYSIS] The injustice and moralism of plea-bargaining in drugs cases

Jayson Lamchek

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[ANALYSIS] The injustice and moralism of plea-bargaining in drugs cases

Guia Abogado/Rappler

'We found that plea-bargaining was really anti-poor and served the interests of judges, prosecutors, and lawyers more than anyone else'

In 2017, the Supreme Court introduced plea-bargaining in drug-related criminal cases to expedite the disposition of these cases. What motivated this reform? What did the reform indicate about our courts’ response to or role in the government’s war on drugs?

Alongside criminologist Pablo Ciocchini of the University of Liverpool, I conducted an analysis of the motivation and impact of plea-bargaining based on interviews with a total of 50 prosecutors, judges, public defendants, and other judicial officers in Manila. Our analysis found that the reform was widely embraced by legal professionals, but it unjustly disadvantaged defendants. It also revealed Filipino judges’ and lawyers’ moralistic attitude towards the poor. This attitude was consistent with the narrative of the government’s aggressive war on drugs campaign that the poor were morally defective and had to be disciplined.

Plea-bargaining enables defendants to plead guilty to a less serious crime than the crime for which s/he was originally charged leading to a conviction and lighter punishment. It was banned for drug-related cases under Section 23 of the Comprehensive Dangerous Drugs Act. However, on August 15, 2017, the Supreme Court struck down the ban and allowed plea-bargaining in drug-related cases. Ciocchini and myself analyzed the impact of plea-bargaining in the context of the Duterte government’s war on drugs.

Although it was touted as serving the interest of all parties including the defendants, we found that plea-bargaining was really anti-poor and served the interests of judges, prosecutors, and lawyers more than anyone else. The Duterte government’s war on drugs led to massive arrests and detentions which created workload problems for public defenders, prosecutors and judges. Drug-related cases constituted 28% of all criminal cases filed in 2018 alone. There were so many drug-related cases that they had to be farmed out to virtually every criminal court. Even Municipal and Metropolitan Trial Courts which had no jurisdiction over drugs-related cases were impacted by massive arrests in the war on drugs because the police used supposed violations of ordinance like driving without helmets on or urinating in public as pretexts to arrest suspects for drug possession.

Before the introduction of plea-bargaining, these drug-related cases were often dismissed because of irregularities committed by the police. In fact, our respondents from among both prosecutors and public defendants agree that police’s evidence were sloppy at best, or worse, planted. However, acquittals were anathema to the government’s war on drugs. There was real pressure on judges and prosecutors to convict defendants despite the lack of evidence or weakness of the police’s case lest they be accused of working for drug cartels. Indeed, many judges and lawyers had been publicly shamed by President Duterte himself by listing them in his so-called “drug matrix.”

Importantly, judges, prosecutors, and public defendants also commonly held a narrative about the moral failings of the poor. An overwhelming majority of defendants in drug-related cases are poor. In interviews, judges, prosecutors, and public defendants expressed the view that deterministically linked poverty to criminality, particularly drug addiction or drug peddling. They saw the poor as unlike them in the sense that the poor were “economically minded” rather than concerned with the legal rightness or wrongness of actions. Legal professionals often believed that defendants were likely guilty even though the evidence was lacking or legally defective to convict them.

Plea-bargaining was seen by legal professionals as a win-win solution. Prosecutors and judges were assured of a conviction as demanded by the government’s war on drugs policy – rather than acquittal as the evidence demanded. Despite this, public defendants could also still think of themselves as having done defendants a favor. This is because plea-bargaining typically involves the condition that defendants undergo drug rehabilitation rather than imprisonment for a drug offense. Rehabilitation represents the legal professionals’ own belief that defendants shouldn’t be extrajudicially killed but instead provided an opportunity to correct their moral failings.

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In reality, there is a shortage of rehabilitation facilities in the Philippines. This means defendants who plea bargain end up serving time behind bars anyway. They often remain detained while in line for a spot in a rehabilitation center. They do so for such a long time that public defendants eventually argue that time in detention should be counted as rehabilitation time and sufficient compliance with the condition of their plea-bargaining agreement. Thus, when defendants should have been acquitted and set free in the first place, plea-bargaining functioned to continue the deprivation of defendants’ liberty.

Our analysis of plea-bargaining also revealed the important part played by legal professional’s anti-poor moralistic discourse in the management of mass detentions in the war on drugs. Enlightened society relies on the Filipino legal professionals’ sense of justice to provide a legal solution to the drug problem that respects human rights. That is, an alternative to extrajudicial shortcuts like the killings in the war on drugs. What the reality of plea-bargaining reveals, however, is that legal professionals have a moralistic attitude towards the poor. It is an attitude that is in tune with the government’s war on drugs narrative. That is, the poor were morally defective and needed correction.

Through moral discourse, legal professionals participate in the reproduction of the war on drugs’ underlying logic which sees poverty as a given and expects the poor to rise above their moral defects or be crushed. What needs to be unsettled is the narrative that poor must be disciplined. We must engage in a deeper questioning of the material conditions that produce and reproduce poverty. Without this, legal solutions like plea-bargaining can only really offer, nay force the poor into, moral betterment and nothing more.

The complete study is here. –

Jayson Lamchek is a Filipino human rights lawyer and research fellow at Deakin University Law School, Melbourne, Australia.

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