Mann, of Criminal-Administrative Procedure, believes that in light of the fact that most criminal proceedings end in plea bargains, this matter should be regulated by legislation, in a manner that will preserve the rights of the defendants.
8.3. Sentencing in light of a plea bargain
The court determined, as stated, the balancing formula for the purpose of examining the plea bargain. Next to it is the punishment complex, or punishment that the court would have imposed had it not been for the plea bargain.
Oren Gezel Eyal, in his article: "Deviation from the Appropriate Punishment Range" in: Dorit Beinisch Book, 539 (Keren Azoulay, Itay Bar Siman Tov, Aharon Barak and Shahar Lifshitz eds., 2018, hereinafter: Gezel Eyal, The Appropriate Punishment Range), insists that in light of the late judgment of a certain person, a plea bargain is another exception to the sentence within the punishment range that was determined. According to his position, according to the case law, this is how the sentence should be handed down in the case of a plea bargain:
"As a rule, in the first stage of the sentencing process, the court must determine the punishment that would have been imposed on the defendant based on the facts to which he confessed, had the parties not reached a plea bargain. For this purpose, he must examine the appropriate range of punishment, and when there is no room to deviate from it, he must also determine what is the punishment within the range that he would have imposed according to the circumstances unrelated to the commission of the offense as determined (usually based on the facts agreed upon by the parties to the settlement). After this examination, he must examine whether the punishment proposed by the parties meets the balancing test, i.e., whether there is a proper relationship between the individual public interest and the broad public interest that the prosecution represents, on the one hand, and the benefit given to the defendant on the other hand. In this process, the agreed punishment may be found inside the compound, and it may also be found outside it. However, the very fact that the agreed punishment exceeds the scope does not negate its suitability for the balancing test. In other words, it is quite possible that the agreed punishment will deviate from the scope and still meet the test of balance set out in the plea bargaining rule. This indicates that the court may deviate from the appropriate penalty range when the deviation is made in accordance with a plea bargain that meets the balancing test...... It should be remembered that the balancing test guides the court to grant the prosecution broad discretion, and that intervention in plea bargains according to it is quite rare."