SEARCH
CLOSE
MENU
Around the world, people accused of crimes are being pressured into giving up their right to a trial. We are working with prosecutors and policymakers to make sure there are safeguards in place to protect people from being coerced into accepting a plea bargain. We also campaign for wider system reform to prevent States from relying on plea bargaining as a solution to other failings in their criminal legal systems.
Plea bargaining is a symptom of broken criminal justice systems. When States have too many criminal cases to deal with, they resort to plea bargaining or trial waivers so they can process large numbers of cases quickly, regardless of what actually happened or whether someone is innocent or guilty.
People can be coerced into thinking that a plea bargain is their only option. Sometimes this is because of pressure from police and prosecutors, who want to process cases as quickly as possible, or cover up unlawful and abusive arrests. Sometimes people are persuaded because of other problems within the system, such as a lack of access to a lawyer, excessive prison sentences, high pre-trial detention rates, long pre-trial detention periods (sometimes years) due to the excessive length of criminal proceedings, high court costs and lawyers’ fees, and overcriminalisation.
Even if people think accepting a plea bargain is to their advantage, they can end up getting a much worse deal than they expected, such as a long prison sentence, or face other consequences, such as being deported.
Find out more about how plea bargaining is linked to access to lawyers, pre-trial detention, overcriminalisation and lengthy sentencing.
Fair Trials is campaigning for safeguards that can make plea bargaining fairer. These safeguards include:
Access to a lawyer: The decision to plead guilty can have huge consequences. People should not be allowed to plead guilty without the advice of a defence lawyer who can help them to understand the impact of conviction and their chances of success at trial. Read more about our campaign for access to a lawyer.
Appeals: If someone accepts a plea bargain, they should not have to waive their right to appeal, particularly if new evidence emerges at a later date.
Information: People need sufficient time and information to understand the case that is being made against them.
Judicial oversight:There should still be judicial scrutiny to make sure that offers are not being made to cover up unlawful and abusive arrests.
Evidence: Police and prosecutors should still have to gather enough evidence to show that someone is guilty of a crime, and this evidence should be disclosed to the defendant and the court, along with evidence that might undermine the prosecution’s case.
Limits on benefits: There should be limits on benefits so that innocent people are not coerced into pleading guilty.
Future rights: People should not have to waive other future rights. For example, in the US, you may have to waive future compassionate release if you become seriously ill when in prison, or may be asked to waive the right to bring claims against the police for misconduct.
Transparency: Prosecutors should be open about their approaches to plea bargaining, and should demonstrate that plea bargaining offers don’t reinforce discrimination. People should not be threatened with harsher or additional charges for going to trial, and all offers should be made on the record and explained in open court.
The Disappearing Trial
The findings of research across 90 countries are published in our report, The Disappearing Trial: Towards a rights-based approach to trial waiver systems. The report analyses the drivers of plea bargaining, assesses the legal and human rights implications and provides recommendations for the development of a rights-based approach to trial waiver systems.
Plea bargaining in the US
In the US, 98% of criminal cases are resolved through plea bargaining. Routinely used with little or no oversight or guidance, plea bargaining incentivises Americans to plead guilty even when they are innocent.
Fair Trials is raising awareness of how plea bargaining reinforces and impacts upon existing problems in the US legal system such as racism, mass criminalisation, mass incarceration and wrongful convictions. We are working with prosecutors to put safeguards in place to help protect people’s rights if they are offered a plea bargain. Our Legal Director Rebecca Shaeffer is part of the American Bar Association task force set up to examine the role of plea bargaining in the US criminal justice system.
We are also campaigning for arrested people to have the right to counsel in police stations. Early access to a lawyer can help reduce the number of cases in the system and reduce overcriminalisation.
Trial waivers in Europe
In Europe, the approach to plea bargaining varies from country to country. Plea bargaining does not just happen for serious crimes with custodial sentences. Accepting a fine rather than going to court is a form of plea bargaining. This has become even more common during the Covid-19 pandemic when many European countries have introduced new minor offences that often have financial sanctions.
We are working with countries across the EU to develop best practice guidelines in trial waivers, which we hope will be applied internationally.
