fairtrials.org is documenting a 300% increase in the use of plea-bargaining across the world, suggesting that the United States’ practice of over-charging suspects for intimidation followed up by a “bargain” that looks good in comparison is spreading.
What is the Problem?
The trial is the archetype of criminal justice: just think of the dominance of court-room drama in film, TV and literature. But, in reality, the trial is starting to disappear. People are increasingly being incentivised to simply plead guilty and to waive their right to a trial.
The use of trial waiver systems like plea bargaining, abbreviated trials and cooperating witness procedures have increased about 300% since 1990. It’s also happening in more places than ever before. Of the 90 countries studied by Fair Trials and Freshfields, 66 now have these kinds of formal “trial waiver” systems in place. In 1990, the number was just 19.
We are not opposed to this in principle but these out-of-court mechanisms can impact fair trial rights and the criminal justice system more widely in serious ways, including:
- Innocent people can be persuaded to plead guilty: an estimated 20,000 innocent people are in US prisons alone, after taking a deal.
- Easier convictions can encourage over-criminalisation and drive harsher sentences.
- Inequality of arms and a lack of transparency where “deals” are done by prosecutors behind closed doors.
- Public trust in justice can be undermined.
fairtrials suggests ways to mitigate the troubling disadvantages of plea-bargaining here. Their position, in summary, is that the concept is potentially defensible but needs safeguards.
…But that’s often the case with institutional power, isn’t it. I’m not 100% sold (my experience is that “the safeguards” need safeguards), but I thought y’all might like to check out their findings anyway.
It’s a harvesting. For scores, statistics, and revenues.
I have no respect for those who do the processing – it is not race-neutral – they are either cogs in a racist system or racist cogs in a racist system.
Marcus Ranum says
Plea bargaining is specifically the state’s backing away from its promise that you’ll have a fair trial. You can’t possibly have a fair trial when the charges against you are being stacked to manipulate you into pleading guilty. It means that the prosecutor knows they are manipulating justice.
Burn the system to the ground:
I see Ken’s still as huge a racist and conservative-that-thinks-he-isn’t as usual. Shitting on teachers, what an amazing insight, big expert man does not even know what teachers spend their time doing.
Hah, my mistake, it’s Clark. No wonder it got entirely rabid.
I did find the attack on teachers oddly out of place. I could maybe see a connection with their cooperation with the police (i.e. school-to-prison pipeline) but that point was never made–public service was positioned as being equivalent to policing, which mostly just confuses me.
Marcus Ranum says
I do not entirely approve of all parts of the message. I’m afraid I triggered on the “burn it to the ground” (which I was thinking – and which reminded me that I may have adopted the expression from that article) I should have reviewed it more carefully and if I had I would not have linked it.
In fact the only part about it I agree with is the general loathing of the so-called justice system. So, uh, can I cheer wildly in support of the title and nothing else?
I apologize, I screwed up, I misspoke.
I sometimes wonder how much our current system might be the mess that it is due to two simple things: 1- The end of the norm that the victim (or attorney of the victim) is the criminal prosecutor. Remember, 200 years ago, in the English and American context, and almost all criminal prosecutors were the victim, or the attorney of the victim. 2- The introduction of state bar associations and the associated laws that make it illegal to choose someone as your attorney unless they are part of the government’s bar associations. Also remember, it used to be that you could choose an attorney of your choice without needing the government to approve who it is.
Today, we have the myth that government criminal prosecutors are somehow more trustworthy, or somehow more neutral, or something, and it’s complete bullshit. If the prosecutor was the victim, then everyone would recognize that the prosecutor was biased as fuck, and then the grand jury would be much more able to grant only criminal charges that are justified, and the criminal court judge would be much more careful in approving plea bargains. I’m decently well convinced on this one.
I also wonder how much sheer complexity of the current system exists because of requiring a lawyer class by forbidding non-approved persons from being attorneys. This may greatly increase complexity, compared to a system that must cater to non-professionals as well. I’m less sure on this one. It’s more of a guess.