New Report from Fair Trials on Plea Bargaining Around the World
From the description of the report on the Fair Trials website:
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.The entire Fair Trials report can be downloaded here.
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.
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%).
If you'd like to read more about the likelihood an innocent defendant might falsely plead guilty to a crime, download a free copy of my article The Innocent Defendant's Dilemma here.