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Plea Bargaining

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. 

Why do innocent people accept plea bargains?

People can be coerced into thinking that waiving their right to a trial 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.

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. 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. 

Broken systems lead to plea bargaining

The overuse of trial waivers or plea bargains is linked to the following issues:

Access to a lawyer: If someone has been arrested, they should have access to a lawyer before they are interrogated by the police. The early involvement of lawyers has an impact on the outcome of cases and can sometimes lead to charges being dismissed early on, which helps to reduce overcriminalisation.  It’s also vital that lawyers help people understand their rights and the consequences of any plea bargaining deals that they are offered, and ensure they consent to waiving their right to a trial knowingly and voluntarily. Read more about our campaign for the right to counsel in the US.

Pre-trial detention: If someone thinks they are going to be detained for a long time while waiting for a trial, pleading guilty might feel like a better option. Read more about our work on what States should be doing to tackle high pre-trial detention rates.

Overcriminalisation: Many politicians like to talk about being tough on crime but our societies would be safer if we didn’t use criminalisation to solve social problems. Punitive approaches create more criminal cases, which in turn encourage plea bargaining as a supposedly easy, quick and cheap way of dealing with them. But States should instead be looking at reducing criminalisation– for example by focusing on social welfare policies aiming at fighting poverty and discrimination..

Excessive sentences: If crimes carry excessive prison sentences then people may feel forced into waiving their right to trial, especially if there is a very big difference between a potential custodial sentence and what is offered in a plea bargain. This is particularly an issue in the US where trial sentences are three times longer than plea-bargained sentences.

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. 

Plea bargaining reinforces racism within the US criminal system:

  • Black and Latino people get worse offers than white people. They also get less counselling about making a decision to waive their right to a trial.
  • For misdemeanour marijuana cases, Black people are 19 percent more likely white people to be offered a plea deal that involves prison. Latino people are 14 percent more likely than white people to be offered a plea deal that involves prison.

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 also 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.

Trial waivers in Europe

In Europe, the approach to plea bargaining varies from country to country.

Trial waivers highlight and reinforce existing problems in Europe’s criminal justice systems. These include the creation of more criminal offenses, an increase in prosecutorial powers, and structural discrimination.  In particular, trial waivers disproportionately impact:

  • People from racialised groups.
  • People on low incomes are less likely to afford lawyers or avoid prison by paying fines.
  • People who are vulnerable might not understand their rights or the risks involved when waiving a trial.

We are working with countries across the EU to develop best practice guidelines in trial waivers, which we hope will be applied internationally.

Find out more

Find out more about what Fair Trials is doing to tackle the excessive use of plea bargaining or trial waivers.

Read our report, The Disappearing Trial: Towards a rights-based approach to trial waiver systems. 

 

 

Key Stats

97%

Percentage of convictions resulting from pleas in the US

20,000

Estimated number of innocent people in prison in the US who have plead guilty to a crime

20%

Over 20% exonerations in the US in 2020 were for convictions based on guilty pleas, according to the National Registry of Exonerations.
CASE STUDY

Rodney Roberts

NEWS

Gambling with justice… Why defendants won’t risk going to trial in the USA

Publication

The Disappearing Trial Report

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Some activities in the following sections on this website are funded by the European Union’s Justice Programme (2014-2020): Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides, Resources, Campaigns, Publications, News and Events. This content represents the views of the authors only and is their sole responsibility. It cannot be considered to reflect the views of the European Commission or any other body of the European Union. The European Commission does not accept any responsibility for use that may be made of the information it contains.