Defending theHuman Rightto a Fair Trial
February 8, 2016
Prior to the launch of a new campaign in autumn of 2016, this week we’ll be taking a look at what plea bargaining is, and where it poses a challenge to the right to a fair trial. Each day we’ll post a new story, fact sheet or guide, looking at who it affects, how it affects them and why we feel it is such an important global issue.
Today, our Legal and Policy Officer, Rebecca Shaeffer, talks about Fair Trials’ ongoing work documenting the use and abuse of plea bargaining across the world, and explains why we are looking at it for our next campaign.
In November 2015, Fair Trials held a roundtable in Washington DC, convening leading legal experts on US criminal procedure (defense lawyers, academics, NGO representatives, judges and former prosecutors) to discuss a new area of work for Fair Trials: due process protections in plea bargaining. The roundtable was designed to explore the main challenges plea bargaining presents to fair trials protections, as well as possible reforms.
The roundtable was focused on United States’ practice, as it is the jurisdiction with the most established and extensive use of plea bargaining in the world – over 95% of criminal cases in the United States are now resolved through this method. The findings of the roundtable indicated that in the US, in the words of one participant, “the tail has started to wag the dog”—instead of creating efficiencies and promoting just outcomes, the overwhelming use of plea bargains has facilitated over-criminalization, mass incarceration, and incentivizes factually innocent people to accept guilty pleas.
Participants in the roundtable concluded that plea bargaining as it is practiced in many parts of the US, presents a number of obstacles to full fair trials protection. They found, for example, that it distorts the incentives of lawyers on both sides of the case. Reimbursement for overworked public defenders is often capped per case, meaning that lawyers are not fully compensated when defendants exercise their right to trial, making it more financially beneficial for them to recommend plea bargains. Meanwhile prosecutors rewarded for volumes of convictions rather than quality of investigations routinely over-charge for the purposes of obtaining plea bargains.
In misdemeanor and municipal-level prosecutions, plea bargaining is often seen as a cynical enterprise in which ill-advised, ill-resourced defendants plead guilty simply to obtain release from pre-trial detention, with minimal investigation from either prosecution or defense. Convictions for minor offences not carrying jail time nonetheless deeply impact affected people and communities, jeopardizing benefits, housing, employment, and parental rights not only of convicted people but of their family members. In felony and federal practice, defendants are routinely required to waive rights beyond the right to trial—to appeal, to examine all relevant evidence, even to complain about the legal advice to accept a plea deal. Convictions in felony practice are systematically won through the strategic use of plea deals to secure cooperating witnesses, whose credibility is sometimes tainted by the exchange of benefits.
In the context of the US criminal justice system, with the possibility of long sentences from which judges often have limited ability to depart, the experts found that prosecutors hold a disproportionate balance of power in plea negotiations through charging decisions. The potential sentence a defendant will receive after trial is so much more severe (estimated by some researchers to be on average 65% longer) than the sentence offered through plea bargaining, that most defendants judge it to be in their best interests to accept pleas, regardless of the accuracy or strength of the government’s case against them.
These findings are especially troubling because plea bargaining is on the rise worldwide, sometimes under the influence of US funding for global rule of law reform. Fair Trials and its pro bono partner, Freshfields Bruckhaus Deringer, are currently conducting a scoping study that aims to establish the global reach of the practice. The study examines criminal procedure in approximately 70 national jurisdictions globally to see whether plea bargaining exists and how it operates. In a select number of jurisdictions, deeper research will be conducted to better establish its operation in practice, including whether key human rights safeguards apply. Fair Trials plans to publish its findings in the fall, including recommendations for best practices in the application of plea bargaining. Based on initial findings, it is clear that plea bargaining is growing in popularity around the world, and that countries that introduce it tend to rely on it to resolve a larger percentage of their criminal cases over time.
Experts at the roundtable made several suggestions for reforms in the US that could improve the protection of defendants’ rights in plea bargaining. These included: greater transparency in plea negotiations as a necessary pre-cursor to better data collection and the possibility of increased judicial oversight of the process; limitations on sentence discounts and waivers of rights in plea bargaining so as to reduce the possibility of coercion; and better protection of defendants’ rights to access counsel and to review the government’s evidence before making a decision to plead guilty. On a systemic level, experts at the roundtable linked problems with plea bargaining to larger efforts to reform sentencing, pre-trial detention, public defense, grand jury and prosecutorial charging practices on both state and federal levels.
As the practice of plea bargaining expands across the world, Fair Trials hopes to continue to develop its understanding of human rights challenges and necessary safeguards in plea bargaining both in the United States and around the world, and to bring together practitioners in key jurisdictions to develop advocacy strategies to advance best practices wherever plea bargaining exists or is being considered.
You can read the full Communiqué, A Fair Deal: Negotiating Justice, which outlines the key discussions within the meeting in Washington DC.
Each day this week we will be covering a different aspect of plea bargaining, in anticipation of the launch of our new campaign in Fall 2016.
If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +44 (0) 7950 849 851.
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