Signal boosting: “The Disappearing Trial” 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.


Signal boosting: “The guards were organized criminals”

Concern over the treatment of inmates is generally my litmus test for how thought-out someone is with the concept of social justice. They’re an incredibly easy group to demonize–hell, even being accused is all it takes for some juries to condemn some defendants–and once that work is done, otherwise knowledgeable people can fumble and overlook the human rights abuses. Often the temptation is to immediately think of the unrepentant serial criminals, especially the violent ones, rather than appreciating that a wide range of individuals are imprisoned for a wide range of activities, some of which have relatively low social cost.

Even so, I have objected to the mistreatment of high-profile murderers in my local prisons because I have good reason to believe it doesn’t stop there.

Susan Ashline, on behalf of an inmate named Jon Fontaine, posted Fontaine’s writings on his lawsuit against the prison that housed him. What’s quite remarkable is that Fontaine screencapped his former guards’ public Facebook postings, which actually helps him corroborate some of his accusations.

Over the past four years, I’ve communicated with a few dozen people by mail, most wanting to know what prison is like. I’d tell them if they’ve seen any “reality” shows about prison, New York prisons are nothing like that. There is no professionalism, no respect. I’d write them, “They literally put unconvicted criminals in charge and let them do anything they want. It’s legal organized crime.”

I’d go on and list all the things officers do, from singular assault to gang assault, murder, rape, planting weapons and drugs, selling weapons and drugs, extortion, and more.

Some believe me, some don’t.

If the public isn’t convinced by the criminal prosecutions now that the Office of Special Investigations was formed to replace the Inspector General’s Office (which was made up of former corrections officers);

If they’re not convinced by the federal charges brought by the US Attorney General’s Office, which stated brutality in New York’s prisons has reached critical levels;

If they’re not convinced by the tens of millions of dollars New York pays out each year to settle lawsuits brought by inmates;

Just look at the corrections officers’ own public statements. They’re playing their positions.

Many thanks to those officers for contributing to my credibility.

Read more about it here.