International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 118

International Journal on Criminology
penal proceedings or the uncertain prospect of a possible heavier sentence. This fear
of judicial error, which vitiates consent, is a grave threat to innocent defendants, who
are naturally more “risk-phobic” than defendants who are actually guilty.
On top of this fear of risk there is the “penal price” to be paid in case of a
refusal to contract an agreement. Although in principle the defendant is free to refuse
the proposition of the judicial authority, this freedom is chancy, temporary, and
costly in terms of resources. Thus, one who refuses to assent to a search within the
framework of a preliminary investigation risks being placed in custody (although in
some circumstances this refusal may also be overcome by order of the liberties and
detention judge). A defendant who refuses to come to court following a summons may
be constrained to do so by use of force (Code of Penal Procedure, Article 78). Similarly,
a defendant who refuses the composite sentence proposed by the public prosecutor
opens himself up to the possibility that proceedings may be initiated against him or her
(Code of Penal Procedure, Article 41-2). From the same perspective, a defendant who
does not accept the sentence passed following an appearance with prior recognition
of guilt is in principle sent back either before the instructing magistrate or before
the Criminal Court, with all the uncertainties implied by such procedures (Code of
Penal Procedure, Article 495-12). These ethically questionable retaliatory measures
are present throughout the whole penal process, and in practice tend to pressurize
the offender into capitulating, especially if he is short of money and cannot afford
the services of a lawyer with irreproachable professional qualities throughout the trial
proceedings.
Conclusion
Ultimately, contractualization is to the penal process what the contract of adhesion
is to the theory of contracts. The strategic superiority of one of the parties, and
the resulting absence of any power to negotiate, the unilateral—not to say
one-sided—character of the clauses of the transaction, and the mass litigation which
the approach intends to remedy, are so many sources of abuse. Furthermore, the risk
of arbitrariness is accompanied by a possible departure from the principle of equality
before the penal law, insofar as the content of the “contract” is not standardized, and
varies appreciably depending upon the offender and the circumstances of the offence.
It is understandable, under such conditions, that the shadow of the judge looms over
the whole process, and especially in regard to the mechanisms of validation (composite
sentencing) and qualification (appearance with prior admission of guilt).
113