Defending theHuman Rightto a Fair Trial
April 27, 2017
The trial is the archetype of criminal justice. It has captured the public imagination. Just think of the dominance of court-room drama in film, TV and literature: the intense personal drama of the trial for the defendant, whose life hangs in the balance. The public drama of the trial: after the shadowlands of police custody, the evidence and the actions of police and prosecutors are exposed to the bright light of scrutiny. The public sees the rule of law in action, witnesses real-time, the search for truth and justice.
But the trial is starting to disappear. In many parts of the world, trials are being replaced by legal regimes that encourage suspects to admit guilt and waive their right to a full trial. 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. Once introduced, trial waivers can quickly dominate. In Georgia, for example, 12.7% of cases were resolved through its plea bargaining system in 2005, quadrupling to 87.8% of cases by 2012.
The drama of the contested trial is being overtaken by “deals” struck behind closed doors. The personal drama, of course, is no less intense. As a defendant, you have a single life-changing decision to make. Confronted with the overwhelming power of the state and often in detention, your options probably don’t look particularly appealing: plead guilty and get convicted, albeit with a shorter sentence; or gamble on your chances in court where, if convicted, you’ll be sentenced more harshly.
It is easy to see the appeal of trial waivers for states. Without a suspect who is persuaded to cooperate, complex cases can be hard to prosecute. Giving people an incentive to plead guilty and give evidence can crack a case wide open. Contested trials can also be expensive, time-consuming and traumatic. Many countries simply can’t afford the rigors of a fair trial. The result can be a cycle of impunity and lawlessness – the breakdown of the rule of law. More commonly, people continue to get arrested but, with underfunded courts incapable of processing cases, the justice system grinds to a halt. Detainees fester, forgotten for months or years in prison just waiting for their day in court.
Trial waiver systems certainly have advantages but they are not without risks. When it comes to criminal justice reform, the reality is that there are no “silver bullet” solutions.
When “incentives” to plead guilty become too extreme, they can persuade innocent people to admit crimes they did not commit. “I’d never plead guilty to something I didn’t do” – you may think this, but going to trial is a gamble and the stakes can be exceedingly high: defendants may plead guilty to avoid the threat of the death penalty or life without parole. In federal drug cases, mandatory minimums have contributed to a system in the US where defendants convicted of drug offences received sentences on average 11 years longer by going to trial rather than pleading. To provide more context for this statistic in the United States, 65 out of the 149 people exonerated of crimes in 2015 had pleaded guilty (44%).
Guilty pleas can also hide gross human rights abuses from scrutiny in open court. In a country where torture in police custody is a daily reality, imagine the combined effect of this with the threat – “plead guilty now or…”! If convictions become too easy to secure, they can also facilitate over-criminalisation and over-incarceration of all or, more commonly, part of the population.
Those of us who care about justice, need to wake up to the new and emerging reality of criminal justice, because trial waivers without safeguards can pose major risks to human rights and the rule of law.
Whatever you see on TV, criminal justice is about more than trials. It is not realistic or, indeed, desirable, to have a full trial in every case. It is certainly not efficient. We must, though, remain vigilant against sacrificing transparency and justice on the altar of efficiency because fair and effective criminal justice systems are too important to the secure, safe and prosperous societies we all want to live in.
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