[DRAFT] Costs in Criminal Cases Act

[Barfleur]

Costs in Criminal Cases Act
Category: Social Justice | Strength: Mild | Proposed by: Barfleur

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The World Assembly,

Committed to securing persons within member nations all the rights to which they are entitled by law;

Believing that persons ought not to be deterred from exercising their rights by virtue of financial burdens imposed by law; and

Especially concerned that in criminal cases, the threat of ruinous financial costs can coerce innocent defendants into pleading guilty, both perverting the justice system and allowing for guilty parties to remain unpunished:

Hereby enacts as follows:

1. Equal treatment of defendants.
   No member nation may:
   
   1. impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea; or
   2. vary any fee or other financial obligation imposed upon persons convicted of an offense by reason of the stage in the proceedings at which the conviction was obtained.
   
   
2. Right to full discovery.
   No member nation may impose any fee or other financial obligation upon a defendant on account of such defendant's assertion of the right to be informed of the nature of the offense, to know the evidence intended to be used against the defendant, or to know the evidence in the government's possession which tends to benefit the defense (whether as to guilt or as to punishment). Receipt of information described in this section is a fundamental right of all defendants.
   
   
3. Compensation for vindicated defendants.
   When a prosecution for an offense terminates with an acquittal, a permanent dismissal of charges, or any other disposition which does not include an admission or finding of guilt, the defendant shall not be required to pay any fee or other financial obligation arising out of that case. Any such fee or obligation already paid shall be refunded in full. This section does not apply to fees paid by the defendant to defense counsel.
   
   
4. Protection of alternative resolutions.
   This resolution does not forbid the practice of reducing, suspending, or dismissing charges upon the completion of a voluntary mediation or similar practice between the defendant and the victim or victims of the offense, if such practice is in accordance with the laws of the relevant jurisdiction.
   
   
5. Definitions.
   In this resolution:
   
   1. "offense" means any violation of a criminal, civil, or administrative nature, however designated and whether statutory or otherwise, for which a conviction can be obtained;
   2. "defendant" means a person, whether natural or juridical, charged with an offense; and
   3. "convicted by plea" includes a situation in which the defendant admits to the conduct constituting the offense or offenses charged in the knowledge that doing do will make it substantially more likely for a conviction to be obtained.

[Simone Republic]

Clause (1) kind of discourages plea bargaining. Also makes it harder for the prosecution to break a stitch first and then get convictions down the road, kind of like how Sam Bankman-Fried's ex-girlfriend and early recruit Caroline Ellison pleaded guilty and helped put the FTX founder behind bars for 25 years. This would probably affect civil cases or things like racketeering or collusion etc., more than a murder.

Clause (2) is likely to face opposition (potentially from myself) over disclosures on national security grounds. That said, if anything is withheld, that should be assumed to be for the benefit of the defendant. Also increases hourly billings during discovery so maybe.

Clause (3) - who pays? Especially if someone hires some expensive QC KC from some top-end chambers to defend a speeding ticket. Are we paying US$3,000,000 in legal fees for a rich man to knock off his (then potential) conviction for speeding down to US$55? (Your definition in Clause 4 of an offence includes this.)

https://en.wikipedia.org/wiki/Peter_Lam ... ng_offence

[Barfleur]

Clause (1) kind of discourages plea bargaining. Also makes it harder for the prosecution to break a stitch first and then get convictions down the road, kind of like how Sam Bankman-Fried's ex-girlfriend and early recruit Caroline Ellison pleaded guilty and helped put the FTX founder behind bars for 25 years. This would probably affect civil cases or things like racketeering or collusion etc., more than a murder.

OOC: I don't think clause 1 discourages plea bargain per se; I think it reduces the government's ability to coerce a guilty plea by threatening to impose "jury fees" and related costs that serve only to deter people from going to trial. And I fail to see the second point, could you please explain what you mean?

Clause (2) is likely to face opposition (potentially from myself) over disclosures on national security grounds. That said, if anything is withheld, that should be assumed to be for the benefit of the defendant. Also increases hourly billings during discovery so maybe.

OOC: Clause 2 doesn't create any new right to discovery of any particular material; it just means the defendant cannot be charged for the privilege of seeing it. There is no principled reason for the defendant to have to make a decision as to whether or not to take a plea before he sees how strong the state's case against him really is.

Clause (3) - who pays? Especially if someone hires some expensive QC KC from some top-end chambers to defend a speeding ticket. Are we paying US$3,000,000 in legal fees for a rich man to knock off his (then potential) conviction for speeding down to US$55? (Your definition in Clause 4 of an offence includes this.)

https://en.wikipedia.org/wiki/Peter_Lam ... ng_offence

OOC: Good point, I have clarified clause 3 to not apply to attorney's fees.

[Simone Republic]

OOC: Good point, I have clarified clause 3 to not apply to attorney's fees.

That's not going to endear you to the GA core demographics of lawyers with mortgages and car loans to pay.

[Tigrisia]

First of all, Tigrisia has no plea system in place, hence, we are doing hard to implement this resolution in the first place. However, the court can suggest both parties to make a deal, which only can only contain certain things (it for example cannot contain whether someone is guilty or not or whether or not the court can impose additional orders (for example, the nullification of ones driving license) and has to be made in the main hearing. The other type of "deal" is the refraining from prosecution subject to conditions and instructions. (OOC: Tigrisia is based on German law.)

Especially concerned that in criminal cases, the threat of ruinous financial costs can coerce innocent defendants into pleading guilty, both perverting the justice system and allowing for guilty parties to remain unpunished:

We believe that a guilty plea is not enough, at least in most cases. We believe that it is necessary to see the guilty plea as only one part in the process of finding the individuals guilt. (OOC: When cross-checking guilty plea with for example, DNA testing, a significant number of guilty pleas seem to be false, see e.g. here: https://www.nacdl.org/getattachment/95b ... ave-it.pdf). Therefore, it is necessary to transform this resolution into a more comprehensive one that truly tackles the problem of coercing innocent people into pleading guilty.

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

We wonder which financial obligations that could be. What about lower court fees, as the hearing is obviously shorter, needs less testimonies and so on?

No member nation may impose any fee or other financial obligation upon a defendant on account of such defendant's assertion of the right to be informed of the nature of the offense, to know the evidence intended to be used against the defendant, or to know the evidence in the government's possession which tends to benefit the defense (whether as to guilt or as to punishment).

We recommend to establish the right of the defendant to know the nature of the offense as well as all evidence available, whether used for or against the defendant and go from there instead of the other way round.

When a prosecution for an offense terminates with an acquittal, a permanent dismissal of charges, or any other disposition which does not include an admission or finding of guilt, the defendant shall not be required to pay any fee or other financial obligation arising out of that case. Any such fee or obligation already paid shall be refunded in full.

That means that the defendant shall neither pay court costs nor attorney fees? Even if, let's say a case will soon be time-barred and therefore will end without a finding of guilt and the defendant does everything (like new requests for evidence, ...) to artificially slow down the procedure until the case is time-barred. In this case, the defendant doesn't even have to pay the dues for artificially slowing down the case.

Even more important, this also makes it impossible to not prosecute a crime if the perpetrator engages in victim-offender mediation or similar orders, which reduce the stress on the victim and may even create a better "sense of justice" than a trial ever could. (OOC: See for example 154a of the German StPO (Code of Criminal Procedure) (https://www.gesetze-im-internet.de/stpo/__153a.html))

"defendant" means a person charged with an offense.

Does this only apply to natural persons or also legal persons?

For the delegation of the Federal Republic of Tigrisia at the World Assembly
Vice-Ambassador Claus Sato
Interim Head of Mission on behalf of Ambassador Thomas Salazar

[Barfleur]

First of all, Tigrisia has no plea system in place, hence, we are doing hard to implement this resolution in the first place. However, the court can suggest both parties to make a deal, which only can only contain certain things (it for example cannot contain whether someone is guilty or not or whether or not the court can impose additional orders (for example, the nullification of ones driving license) and has to be made in the main hearing. The other type of "deal" is the refraining from prosecution subject to conditions and instructions. (OOC: Tigrisia is based on German law.)

Especially concerned that in criminal cases, the threat of ruinous financial costs can coerce innocent defendants into pleading guilty, both perverting the justice system and allowing for guilty parties to remain unpunished:

We believe that a guilty plea is not enough, at least in most cases. We believe that it is necessary to see the guilty plea as only one part in the process of finding the individuals guilt. (OOC: When cross-checking guilty plea with for example, DNA testing, a significant number of guilty pleas seem to be false, see e.g. here: https://www.nacdl.org/getattachment/95b ... ave-it.pdf). Therefore, it is necessary to transform this resolution into a more comprehensive one that truly tackles the problem of coercing innocent people into pleading guilty.

"Believe me, we are not opposed to reforming prosecution practices across the board. However, I believe it is better in a case like this to focus on specific practices that can be modified or removed in order to ensure that the process as a whole is fair and that the results reached are just ones."

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

We wonder which financial obligations that could be. What about lower court fees, as the hearing is obviously shorter, needs less testimonies and so on?

"It is true, yes, that using the court for a shorter amount of time would lead to fewer costs, but that is not a valid reason in our opinion to pass the costs onto the defendant, for three reasons. First, the defendant has a right to a trial, and a right cannot fairly be described as such if the state--with its monopoly on the legal process--can charge rates which most people charged with crimes likely cannot afford, just to exercise that right. Second, however much money the public coffers could save by requiring court fees, this would have the clear effect of causing cases to go untried where the interests of justice favor a trial. And third, a court system ought to be funded by the general revenue, in order to avoid creating perverse incentives and to preserve the independence of the judiciary. I do not like paying taxes. But since I do have to pay them, I am quite happy with some of the money going to keep our legal system working fairly for all who come before it."

No member nation may impose any fee or other financial obligation upon a defendant on account of such defendant's assertion of the right to be informed of the nature of the offense, to know the evidence intended to be used against the defendant, or to know the evidence in the government's possession which tends to benefit the defense (whether as to guilt or as to punishment).

We recommend to establish the right of the defendant to know the nature of the offense as well as all evidence available, whether used for or against the defendant and go from there instead of the other way round.

"Good idea. I will clarify that."

When a prosecution for an offense terminates with an acquittal, a permanent dismissal of charges, or any other disposition which does not include an admission or finding of guilt, the defendant shall not be required to pay any fee or other financial obligation arising out of that case. Any such fee or obligation already paid shall be refunded in full.

That means that the defendant shall neither pay court costs nor attorney fees? Even if, let's say a case will soon be time-barred and therefore will end without a finding of guilt and the defendant does everything (like new requests for evidence, ...) to artificially slow down the procedure until the case is time-barred. In this case, the defendant doesn't even have to pay the dues for artificially slowing down the case.

Even more important, this also makes it impossible to not prosecute a crime if the perpetrator engages in victim-offender mediation or similar orders, which reduce the stress on the victim and may even create a better "sense of justice" than a trial ever could. (OOC: See for example 154a of the German StPO (Code of Criminal Procedure) (https://www.gesetze-im-internet.de/stpo/__153a.html))

"I would imagine the statute of limitations is stopped once a criminal prosecution is initiated, usually with the filing of an accusatory instrument (such as an information or indictment). After that, the only time limits that apply are speedy trial provisions, which almost invariably exclude time in which the defense voluntarily slows down the process. As to your second point, that is a strong argument, and I will make that change."

"defendant" means a person charged with an offense.

Does this only apply to natural persons or also legal persons?

"Both. A business or labor association can be bankrupted no less than an individual through abuses of the legal process."

[Makko Oko]

1. Equal treatment of defendants.
No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

This takes away the whole purpose of plea bargains to begin with and actually goes against real US Supreme Court precedent under Freeman v. United States which ruled that defendants who enter into plea agreements under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure are eligible for sentence reductions under 18 U.S.C. § 3582(c)(2). A fee is technically part of a criminal sentence and thus, the issue at hand.

3. Compensation for vindicated defendants.
When a prosecution for an offense terminates with an acquittal, a permanent dismissal of charges, or any other disposition which does not include an admission or finding of guilt, the defendant shall not be required to pay any fee or other financial obligation arising out of that case. Any such fee or obligation already paid shall be refunded in full. This section does not apply to fees paid by the defendant to defense counsel.

I should not have to tell you that this violates natsov when it comes to judicial authority. If you are indicted for crimes in relation to your case, the government should such have the right to bear witness to a jury on their innocence of that crime. In addition, if a court indicts you for perjury, contempt of court, or other crimes in relation to a case then in real life, an acquittal in the original case doesnt just erase that.

[Tigrisia]

"Believe me, we are not opposed to reforming prosecution practices across the board. However, I believe it is better in a case like this to focus on specific practices that can be modified or removed in order to ensure that the process as a whole is fair and that the results reached are just ones."

OOC: I know, this may go against the optionality rule, though I would be happy if you could still take care of that.

We urge the delegation of Bafleur to still change article 1 so that we can stay in our system that is not "plea-based". While we overall support this resolution, as it will make trials more fair, we otherwise have to oppose it if the resolution does not reflect that there are many different juridical systems.

"It is true, yes, that using the court for a shorter amount of time would lead to fewer costs, but that is not a valid reason in our opinion to pass the costs onto the defendant, for three reasons. First, the defendant has a right to a trial, and a right cannot fairly be described as such if the state--with its monopoly on the legal process--can charge rates which most people charged with crimes likely cannot afford, just to exercise that right. Second, however much money the public coffers could save by requiring court fees, this would have the clear effect of causing cases to go untried where the interests of justice favor a trial. And third, a court system ought to be funded by the general revenue, in order to avoid creating perverse incentives and to preserve the independence of the judiciary. I do not like paying taxes. But since I do have to pay them, I am quite happy with some of the money going to keep our legal system working fairly for all who come before it."

We recommend a different approach, as the one that is outlined in this draft won't really get rid of the problem. At least in Tigrisia, court costs are negilible, compared to the cost for an attorney. Hence, banning court costs, wouldn't really change anything, if the cost of an attorney makes it difficult to to go through long trials. Henceforth, we recommend to establish a comprehensive system of legal aid (OOC: "Prozesskostenbeihilfe") for all court procedures that cover these costs.

"I would imagine the statute of limitations is stopped once a criminal prosecution is initiated, usually with the filing of an accusatory instrument (such as an information or indictment). After that, the only time limits that apply are speedy trial provisions, which almost invariably exclude time in which the defense voluntarily slows down the process.

OOC: Not all, see here: https://rsw.beck.de/aktuell/daily/meldu ... t-moeglich

As to your second point, that is a strong argument, and I will make that change."

There are also other reasons why one could not go to trial or even initate the whole process. For example, not paying alimony is, under certain conditions, a criminal offence in Tigrisia. However, under certain conditions, if the offender agrees to pay the alimony when the public prosecutor writes them this nice little letter which tells the defendant that proceedings are opened against them, the case can be dropped before it really began. Hence, we recommend a broader exception. We recommend to change article 4 to to the following:

"This resolution does not forbid the practice of reducing, suspending, or dismissing charges upon the completion of measures in the context of victim-offender reconciliation, similar forms of restitution or tertiary prevention measures, if such practice is in accordance with the laws of the relevant jurisdiction."

For the delegation of the Federal Republic of Tigrisia at the World Assembly,
Prof. Dr. jur. Mag. jur. Hans Meyer
Chief Lawyer

[Barfleur]

"Believe me, we are not opposed to reforming prosecution practices across the board. However, I believe it is better in a case like this to focus on specific practices that can be modified or removed in order to ensure that the process as a whole is fair and that the results reached are just ones."

OOC: I know, this may go against the optionality rule, though I would be happy if you could still take care of that.

We urge the delegation of Bafleur to still change article 1 so that we can stay in our system that is not "plea-based". While we overall support this resolution, as it will make trials more fair, we otherwise have to oppose it if the resolution does not reflect that there are many different juridical systems.

We have amended the definitions section to incorporate this change."

"It is true, yes, that using the court for a shorter amount of time would lead to fewer costs, but that is not a valid reason in our opinion to pass the costs onto the defendant, for three reasons. First, the defendant has a right to a trial, and a right cannot fairly be described as such if the state--with its monopoly on the legal process--can charge rates which most people charged with crimes likely cannot afford, just to exercise that right. Second, however much money the public coffers could save by requiring court fees, this would have the clear effect of causing cases to go untried where the interests of justice favor a trial. And third, a court system ought to be funded by the general revenue, in order to avoid creating perverse incentives and to preserve the independence of the judiciary. I do not like paying taxes. But since I do have to pay them, I am quite happy with some of the money going to keep our legal system working fairly for all who come before it."

We recommend a different approach, as the one that is outlined in this draft won't really get rid of the problem. At least in Tigrisia, court costs are negilible, compared to the cost for an attorney. Hence, banning court costs, wouldn't really change anything, if the cost of an attorney makes it difficult to to go through long trials. Henceforth, we recommend to establish a comprehensive system of legal aid (OOC: "Prozesskostenbeihilfe") for all court procedures that cover these costs.

OOC: GA#37 already requires that financially unable defendants be appointed counsel.

"I would imagine the statute of limitations is stopped once a criminal prosecution is initiated, usually with the filing of an accusatory instrument (such as an information or indictment). After that, the only time limits that apply are speedy trial provisions, which almost invariably exclude time in which the defense voluntarily slows down the process.

OOC: Not all, see here: https://rsw.beck.de/aktuell/daily/meldu ... t-moeglich

OOC: Did not know that, thank you! From my reading of the article (which, I admit, was an English translation, so not necessarily accurate), it appeared that the court held that certain of the criminal charges were time-barred but could still form the basis for criminal forfeiture orders. In that case, I can't say the proceeding did not entail a finding of guilt on the part of H&K, in the sense that the company was found to have at least benefited from the illegal activity.

As to your second point, that is a strong argument, and I will make that change."

There are also other reasons why one could not go to trial or even initate the whole process. For example, not paying alimony is, under certain conditions, a criminal offence in Tigrisia. However, under certain conditions, if the offender agrees to pay the alimony when the public prosecutor writes them this nice little letter which tells the defendant that proceedings are opened against them, the case can be dropped before it really began. Hence, we recommend a broader exception. We recommend to change article 4 to to the following:

"This resolution does not forbid the practice of reducing, suspending, or dismissing charges upon the completion of measures in the context of victim-offender reconciliation, similar forms of restitution or tertiary prevention measures, if such practice is in accordance with the laws of the relevant jurisdiction."

"Changed."

[Tigrisia]

OOC: Did not know that, thank you! From my reading of the article (which, I admit, was an English translation, so not necessarily accurate), it appeared that the court held that certain of the criminal charges were time-barred but could still form the basis for criminal forfeiture orders. In that case, I can't say the proceeding did not entail a finding of guilt on the part of H&K, in the sense that the company was found to have at least benefited from the illegal activity.

The judgement can be found here: http://juris.bundesgerichtshof.de/cgi-b ... os=0&anz=1

Some members of the group that conducted the criminal activities within H&K have been convicted for cases that have not yet been time-barred. To elaborate on this would be quite complex. See the judgement for further details.

Corporate criminal law in Germany is virtually nonexistent. Apart from things required by the EU, Germany follows the principle of societas delinquere non potest. Recently, there have been some initiatives to create a corporate criminal law.

[Makko Oko]

OOC: I know, this may go against the optionality rule, though I would be happy if you could still take care of that.

We urge the delegation of Bafleur to still change article 1 so that we can stay in our system that is not "plea-based". While we overall support this resolution, as it will make trials more fair, we otherwise have to oppose it if the resolution does not reflect that there are many different juridical systems.

We have amended the definitions section to incorporate this change."

We recommend a different approach, as the one that is outlined in this draft won't really get rid of the problem. At least in Tigrisia, court costs are negilible, compared to the cost for an attorney. Hence, banning court costs, wouldn't really change anything, if the cost of an attorney makes it difficult to to go through long trials. Henceforth, we recommend to establish a comprehensive system of legal aid (OOC: "Prozesskostenbeihilfe") for all court procedures that cover these costs.

OOC: GA#37 already requires that financially unable defendants be appointed counsel.

OOC: Not all, see here: https://rsw.beck.de/aktuell/daily/meldu ... t-moeglich

OOC: Did not know that, thank you! From my reading of the article (which, I admit, was an English translation, so not necessarily accurate), it appeared that the court held that certain of the criminal charges were time-barred but could still form the basis for criminal forfeiture orders. In that case, I can't say the proceeding did not entail a finding of guilt on the part of H&K, in the sense that the company was found to have at least benefited from the illegal activity.

There are also other reasons why one could not go to trial or even initate the whole process. For example, not paying alimony is, under certain conditions, a criminal offence in Tigrisia. However, under certain conditions, if the offender agrees to pay the alimony when the public prosecutor writes them this nice little letter which tells the defendant that proceedings are opened against them, the case can be dropped before it really began. Hence, we recommend a broader exception. We recommend to change article 4 to to the following:

"This resolution does not forbid the practice of reducing, suspending, or dismissing charges upon the completion of measures in the context of victim-offender reconciliation, similar forms of restitution or tertiary prevention measures, if such practice is in accordance with the laws of the relevant jurisdiction."

"Changed."

It would be appreciated for you to address my arguments

[Barfleur]

We have amended the definitions section to incorporate this change."


OOC: GA#37 already requires that financially unable defendants be appointed counsel.


OOC: Did not know that, thank you! From my reading of the article (which, I admit, was an English translation, so not necessarily accurate), it appeared that the court held that certain of the criminal charges were time-barred but could still form the basis for criminal forfeiture orders. In that case, I can't say the proceeding did not entail a finding of guilt on the part of H&K, in the sense that the company was found to have at least benefited from the illegal activity.



"Changed."

It would be appreciated for you to address my arguments

OOC: Apologies, I had meant to respond and then ended up posting after I responded to Tigrisia. With respect to your arguments, I have two responses. First, plea bargaining--that is, pleading guilty in exchange for a reduced sentence--can still exist, but the government simply would not be able to add administrative surcharges as a means to coerce pleas. Allowing for a reduction in sentence upon a plea of guilty would not be affected, nor the practice of negotiating specific sentences. Second, I fail to see your points about national sovereignty and judicial authority. The government must have evidence in a criminal case, in order to carry its burden of proving guilt to the legal standard. The defense can raise a defense and cannot be penalized for doing so (see People v. Harvey Weinstein for a recent and high-profile reaffirmation of that principle), but need not. And this clause has nothing to do with perjury or any of the other issues you described, it just means that the courts cannot impose court costs on defendants who are not in fact legally guilty.

[Zyvetskistaahn]

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

I have some questions about the operation of this clause. I’d like to outline a scheme for costs and ask whether it would be caught by the clause.

Suppose a state that imposes costs on criminal defendants at fixed rates along these lines: Defendants whose cases are dealt with at their first hearing $85; Defendants whose cases require more than one hearing $310; Defendants whose cases have required preparation for a contested trial $620.

The state permits offences to be proved and sentenced in absence, so that Defendants who plead and Defendants who are convicted and sentenced in summary trial in absence on that day alike must pay $85 costs. The $310 costs are more likely to be paid by Defendants who crack after a first hearing but before trial preparations are complete but would also be payable by Defendants who plead or are convicted at first hearing but require a more involved sentencing exercise and so need an adjournment (perhaps for reports) or who fail to appear at the first hearing and require a second at which they are plead or are sentenced. The $620 costs would be payable for a Defendant who pleads on the day of a contested trial or who is found guilty after it.

Broadly speaking, this scheme of costs is likely to lead to higher costs being imposed on Defendants who do not enter prompt guilty pleas but Defendants who plead or are found guilty would be charged on the same basis at each stage. Would you say the scheme is lawful under the clause or not?

[Barfleur]

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

I have some questions about the operation of this clause. I’d like to outline a scheme for costs and ask whether it would be caught by the clause.

Suppose a state that imposes costs on criminal defendants at fixed rates along these lines: Defendants whose cases are dealt with at their first hearing $85; Defendants whose cases require more than one hearing $310; Defendants whose cases have required preparation for a contested trial $620.

The state permits offences to be proved and sentenced in absence, so that Defendants who plead and Defendants who are convicted and sentenced in summary trial in absence on that day alike must pay $85 costs. The $310 costs are more likely to be paid by Defendants who crack after a first hearing but before trial preparations are complete but would also be payable by Defendants who plead or are convicted at first hearing but require a more involved sentencing exercise and so need an adjournment (perhaps for reports) or who fail to appear at the first hearing and require a second at which they are plead or are sentenced. The $620 costs would be payable for a Defendant who pleads on the day of a contested trial or who is found guilty after it.

Broadly speaking, this scheme of costs is likely to lead to higher costs being imposed on Defendants who do not enter prompt guilty pleas but Defendants who plead or are found guilty would be charged on the same basis at each stage. Would you say the scheme is lawful under the clause or not?

"I do not believe that scheme would be lawful, as a decision to not plead guilty would ensure that the case would proceed to the next stage, and thus imposing higher costs later on serves as a proxy for taking or not having taken a plea."

[Zyvetskistaahn]

I have some questions about the operation of this clause. I’d like to outline a scheme for costs and ask whether it would be caught by the clause.

Suppose a state that imposes costs on criminal defendants at fixed rates along these lines: Defendants whose cases are dealt with at their first hearing $85; Defendants whose cases require more than one hearing $310; Defendants whose cases have required preparation for a contested trial $620.

The state permits offences to be proved and sentenced in absence, so that Defendants who plead and Defendants who are convicted and sentenced in summary trial in absence on that day alike must pay $85 costs. The $310 costs are more likely to be paid by Defendants who crack after a first hearing but before trial preparations are complete but would also be payable by Defendants who plead or are convicted at first hearing but require a more involved sentencing exercise and so need an adjournment (perhaps for reports) or who fail to appear at the first hearing and require a second at which they are plead or are sentenced. The $620 costs would be payable for a Defendant who pleads on the day of a contested trial or who is found guilty after it.

Broadly speaking, this scheme of costs is likely to lead to higher costs being imposed on Defendants who do not enter prompt guilty pleas but Defendants who plead or are found guilty would be charged on the same basis at each stage. Would you say the scheme is lawful under the clause or not?

"I do not believe that scheme would be lawful, as a decision to not plead guilty would ensure that the case would proceed to the next stage, and thus imposing higher costs later on serves as a proxy for taking or not having taken a plea."

Why is the comparator for the person who is convicted after a contested trial the person who pleads at first hearing and not the person convicted by plea on the day of trial? The person who convicted by plea late in the day and convicted after contested trial are treated the same and their positions (in terms of the costs that will have been incurred in preparation for trial) are similar. The person convicted by plea at first hearing and the person convicted after summary trial in absence are both differently positioned to that (the costs that will have been incurred for a single hearing being lower) and are treated the same as each other.

Could the clause’s wording not more directly target costs that are attributed to trials or limit costs for all Defendants to a fixed sum (or fixed by reference to the offence charged, regardless of plea), if the intended effect ultimately is to prevent extra costs caused by the Defendant electing trial from being held against them?

[Merni]

Clause (2) is likely to face opposition (potentially from myself) over disclosures on national security grounds. That said, if anything is withheld, that should be assumed to be for the benefit of the defendant. Also increases hourly billings during discovery so maybe.

OOC: Clause 2 doesn't create any new right to discovery of any particular material; it just means the defendant cannot be charged for the privilege of seeing it. There is no principled reason for the defendant to have to make a decision as to whether or not to take a plea before he sees how strong the state's case against him really is.

OOC: Then what does this sentence in the draft do?

No member nation may impose any fee or other financial obligation upon a defendant on account of such defendant's assertion of the right to be informed of the nature of the offense, to know the evidence intended to be used against the defendant, or to know the evidence in the government's possession which tends to benefit the defense (whether as to guilt or as to punishment). Receipt of information described in this section is a fundamental right of all defendants.

Doesn't this mean that defendants now have a right to receive all "the evidence in the government's possession which tends to benefit the defense"?

[Zinke Zoogle Bee-Bop]

Hey, it's my first time doing this so bear with me.

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

I don't see much benefit in this. Why should the prosecution not be able to reduce fees in exchange for a confession? Guilty pleas speed everything up in the legal system especially when it comes to petty traffic stuff. If accepting defeat no longer offers an easier way out, nobody would ever take it. I understand the reasoning for wanting to reduce coercion to accept pleas, but if you wish to target practices like jury fees, I'd suggest targeting those practices directly rather than a broader statement which can significantly reduce peoples' ability to plea bargain.

I see no major issues with the rest of this draft as written, but I believe this is missing something fairly important to what I interpreted as the main idea. If the point of the resolution is to reduce financial burden from the legal system (which implicitly would be much more detrimental to less wealthy people), perhaps the clause about "equal treatment of defendants" should not be limited to the differences in conviction method, but rather also account for glaring differences in financial class. For example, a billionaire and a homeless person convicted of the same offence and assigned the same fine would be affected in vastly different ways. What I would suggest is to change the clause to read as follows-

No member nation may impose any fee or financial obligation upon a person who has been convicted of an offense unless such fee or obligation is equitably imposed upon other individuals convicted of the same or similar offenses based on the convicted individuals' plea status and economic status.

I tried to follow your style/wording as best I could here, but I admit it did end up rather wording. Hope all that helped.

[Barfleur]

OOC: Clause 2 doesn't create any new right to discovery of any particular material; it just means the defendant cannot be charged for the privilege of seeing it. There is no principled reason for the defendant to have to make a decision as to whether or not to take a plea before he sees how strong the state's case against him really is.

OOC: Then what does this sentence in the draft do?

No member nation may impose any fee or other financial obligation upon a defendant on account of such defendant's assertion of the right to be informed of the nature of the offense, to know the evidence intended to be used against the defendant, or to know the evidence in the government's possession which tends to benefit the defense (whether as to guilt or as to punishment). Receipt of information described in this section is a fundamental right of all defendants.

Doesn't this mean that defendants now have a right to receive all "the evidence in the government's possession which tends to benefit the defense"?

OOC: GA#580 already establishes a universal discovery right. I do not see the need to reiterate that in this proposal. Instead, the purpose of this section is to ensure that this right is not unconscionably denied to defendants unable to pay the fee.

Hey, it's my first time doing this so bear with me.

No member nation may impose any fee or other financial obligation upon a person who has been convicted at trial of an offense unless such fee or obligation is equally imposed upon persons convicted by plea.

I don't see much benefit in this. Why should the prosecution not be able to reduce fees in exchange for a confession? Guilty pleas speed everything up in the legal system especially when it comes to petty traffic stuff. If accepting defeat no longer offers an easier way out, nobody would ever take it. I understand the reasoning for wanting to reduce coercion to accept pleas, but if you wish to target practices like jury fees, I'd suggest targeting those practices directly rather than a broader statement which can significantly reduce peoples' ability to plea bargain.

OOC: Welcome! It's always great to have new members, and I hope you find this community fun and inviting. The problem with using court costs to incentivize guilty pleas is that it inevitably results in innocent defendants forgoing their right to trial in fear of being charged a sum they cannot afford. It is one thing to negotiate for a reduced sentence (although there are many problems inherent in that system as well), but because a court fee is not a punishment in and of itself, but rather an administrative cost, using that to coerce guilty pleas serves only to pass on the costs of the justice system to those who exercise their legal rights.

I see no major issues with the rest of this draft as written, but I believe this is missing something fairly important to what I interpreted as the main idea. If the point of the resolution is to reduce financial burden from the legal system (which implicitly would be much more detrimental to less wealthy people), perhaps the clause about "equal treatment of defendants" should not be limited to the differences in conviction method, but rather also account for glaring differences in financial class. For example, a billionaire and a homeless person convicted of the same offence and assigned the same fine would be affected in vastly different ways. What I would suggest is to change the clause to read as follows-

No member nation may impose any fee or financial obligation upon a person who has been convicted of an offense unless such fee or obligation is equitably imposed upon other individuals convicted of the same or similar offenses based on the convicted individuals' plea status and economic status.

I tried to follow your style/wording as best I could here, but I admit it did end up rather wording. Hope all that helped.

OOC: I see your point, but that still leaves the door open for coerced pleas, with the actual sums varying according to ability to pay--ie, a homeless defendant might not even be able to afford a $50 fee, while a far wealthier defendant might balk at $150,000. Also, many nations base fines off the defendant's gain from the offense or the victim's loss, which of course varies case by case. Then, I wouldn't say it is inequitable to sentence two defendants to the same fine, even if their financial states are different, if the amounts are, say, twice what they gained by committing the crime.

[Barfleur]

"I do not believe that scheme would be lawful, as a decision to not plead guilty would ensure that the case would proceed to the next stage, and thus imposing higher costs later on serves as a proxy for taking or not having taken a plea."

Why is the comparator for the person who is convicted after a contested trial the person who pleads at first hearing and not the person convicted by plea on the day of trial? The person who convicted by plea late in the day and convicted after contested trial are treated the same and their positions (in terms of the costs that will have been incurred in preparation for trial) are similar. The person convicted by plea at first hearing and the person convicted after summary trial in absence are both differently positioned to that (the costs that will have been incurred for a single hearing being lower) and are treated the same as each other.

Could the clause’s wording not more directly target costs that are attributed to trials or limit costs for all Defendants to a fixed sum (or fixed by reference to the offence charged, regardless of plea), if the intended effect ultimately is to prevent extra costs caused by the Defendant electing trial from being held against them?

"That is a very good argument, and I have incorporated it into new clause 1(b). I appreciate your bringing this point to my attention."

[Merni]

OOC: Then what does this sentence in the draft do?

Doesn't this mean that defendants now have a right to receive all "the evidence in the government's possession which tends to benefit the defense"?

OOC: GA#580 already establishes a universal discovery right. I do not see the need to reiterate that in this proposal. Instead, the purpose of this section is to ensure that this right is not unconscionably denied to defendants unable to pay the fee.

That resolution states:

Evidence may be excluded if there is a preponderance of evidence that providing it would lead to witness tampering or intimidation, expose information vital to national security, or substantially threaten the safety of witnesses or other third parties.

Now, if you state that "receipt of [the evidence in the government's possession which tends to benefit the defense] is a fundamental right of all defendants", does that not somewhat conflict with the exception in 580?

I think, since 580 already provides a right to discovery, there is no need to again declare that this is a fundamental right. Fundamental rights go beyond "free of cost" into "free of restriction (other than those provided by law)" territory -- and declaring that this is a fundamental right of all defendants, without any explicit exception, seems to be a contradiction.

Since you are already saying no member nation may impose a fee or other financial obligation on the exercise of these rights, there doesn't seem to be a need to also state that this is a "fundamental right" (whatever specifically that means).