New Reports on Global Plea Bargaining from Fair Trials
Fair Trials, an organization that campaigns "on issues that threaten the right to a fair trial or reinforce discrimination and inequality in criminal justice," has released two new reports regarding plea bargaining around the world.
The first report, "Efficiency over justice: Insights into trial waiver systems in Europe," was released in December 2021. From the executive summary:
Criminal punishment is increasingly imposed without a trial but instead through a trial waiver system or other alternative disposition systems that fall short of a trial (including penal orders and fast track proceedings). A recent report by the European Commission for the Efficiency of Justice, noted that in 2016, in the majority of Council of Europe member states, about 50% of criminal cases were processed before courts; the rest resulted in a sanction or measure imposed or negotiated by prosecutors. It is likely that the share of criminal cases processed out of courts will increase in the future. This shift in how criminal cases are processed requires research to understand the implications that such case resolution mechanisms have on the rights of the accused, but also on the integrity of the criminal justice system as a whole.. . .The report highlights four trends that are generally common to criminal justice systems across Europe. These trends are key to understanding the rise of trial waiver systems and the reasons for their shortcomings. First, criminal justice systems are overburdened and suffering from court delays and backlogs. This saturation is not only due to a lack of resources, but also caused by the constant and increasing recourse to criminal law and punishment to address social harm. This contributes to the second trend of overcriminalisation and overpunishment. Third, states continue to have excessive recourse to pre-trial detention leading to prison overpopulation and inhumane detention conditions. The fourth trend is symptomatic of all the others. States are looking at cost-efficient policies to deal with overburdened systems. This explains the rise of trial waiver systems as a star tool available to prosecutors throughout Europe to resolve criminal cases quickly and cheaply.
The report examines these issues and makes several recommendations related to structural reforms, data collection and research, enhanced procedural rights, effective judicial oversight, and increased accountability. The report is available here. An opinion piece regarding the report also appeared in the EU Observer.
The second report, "Trial waiver systems: A guide for policy makers," was released in January 2022. From the introduction.
A recent report by the European Commission for the Efficiency of Justice (CEPEJ), details that in 2016, approximately 42% of the total number of criminal cases4 were discontinued by prosecutors, 28% were processed before courts and “27% resulted in a penalty or measure imposed or negotiated by the prosecutor”.5 In other words, about 50% of all criminal cases that proceed are processed outside the framework of a trial. This strive for efficiency has become the main driver of change for modern criminal justice systems.6 A well-functioning criminal justice system is in the interest of all actors, including suspected and accused persons. However, the pursuit of efficiency cannot be limited to considerations of cost and fast resolutions. There is concern that efficiency is achieved by bypassing the fundamental rights of suspected and accused people.7 While it is the duty of states to improve the situation of the judiciary or adjust it accordingly in order to cope with backlogs, cost-efficiency driven reforms should not place a disproportionate burden on suspected and accused persons, and the priority should always be given to protecting rights and respecting the rule of law.. . .This guide provides an overview of the risks associated with trial waiver systems identified in our research (I) and guidance on how to mitigate these risks, including through research and impact assessment (II); structural reform limiting the incentives to waiver the right to a trial (III); the implementation and adaptation of procedural safeguards to the trial waiver context (IV); effective judicial oversight over trial waiver systems (V) and increase oversight over prosecutorial powers through the development of public prosecutorial guidelines (VI).
The report is available here.
The issue of efficiency and the manner in which plea bargaining sacrifices accuracy in favor of efficiency is vitally important to our discussions around plea bargaining reform. In my 2018 article "Class v. United States: Bargained Justice and a System of Efficiencies," I ended with the following.
If, even knowing the alarming power of plea bargaining to ensnare the innocent, we continue forward, are we not conceding that beyond being merely a system of pleas, today’s criminal justice system is, for the most part, actually a system of efficiencies? As a recent article regarding plea bargaining observed, “Though there are several reasons underlying the rise in plea bargains, the primary reason—efficiency—remains true today and is the most-often-cited reason for maintaining the practice.” What does it means to concede that the criminal justice system today is more about efficiency and less about justice than our Founders might ever have envisioned? What does it mean that in a system that values individual liberty, we have marginalized the right to a jury trial because of our inability to operate an overcriminalized system without bargained justice? While I do not know how those questions will be answered [by the Supreme Court in future decisions], I do think they are the concerns to which a deep examination of plea bargaining must eventually lead us—and the Court.
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