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.