Plea bargaining

People accused of crimes are increasingly pressured into giving up their right to a trial. 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. We also campaign for wider system reform to prevent States from relying on plea bargaining as a solution to other failings in their criminal legal systems.

Plea Bargaining Institute

Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (PBI). This is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices. Visit the Plea Bargaining Institute website to find out more.

Why do innocent people accept plea bargains?

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.

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, long pre-trial detention periods 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.

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. Lawyers can 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.

Safeguards for plea bargaining

Fair Trials is campaigning for safeguards that can make plea bargaining fairer. These safeguards include:

Access to a lawyer

The decision to plead guilty can have huge consequences. People should not be allowed to plead guilty without the advice of a defence lawyer who can help them to understand the impact of conviction and their chances of success at trial. Read more about our campaign for access to a lawyer.

Appeals

If someone accepts a plea bargain, they should not have to waive their right to appeal, particularly if new evidence emerges at a later date.

Information

People need sufficient time and information to understand the case that is being made against them.

Judicial oversight

There should still be judicial scrutiny to make sure that offers are not being made to cover up unlawful and abusive arrests.

Evidence

Police and prosecutors should still have to gather enough evidence to show that someone is guilty of a crime, and this evidence should be disclosed to the defendant and the court, along with evidence that might undermine the prosecution’s case.

Limits on benefits

There should be limits on benefits so that innocent people are not coerced into pleading guilty.

Future rights

People should not have to waive other future rights. For example, in the US, you may have to waive future compassionate release if you become seriously ill when in prison, or may be asked to waive the right to bring claims against the police for misconduct.

Transparency

Prosecutors should be open about their approaches to plea bargaining, and should demonstrate that plea bargaining offers don’t reinforce discrimination. People should not be threatened with harsher or additional charges for going to trial, and all offers should be made on the record and explained in open court.

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.

Condena sin Juicio

A 2020 report from Fair Trials and Dragon Lab entitled Condena sin Juicio found that the increased use of abbreviated procedures in Mexico mean that gender-related issues cannot be properly addressed in criminal justice proceedings. The report analyses the implications of the use of the abbreviated procedure in cases involving women accused of federal crimes in Mexico. The research, conducted in cooperation with the Federal Institute of Public Defence and with the support of the Irish Embassy in México, found that the current regulation and implementation of the abbreviated procedure in Mexico significantly limits the ability to examine the use of abbreviated procedures from a gender perspective, or to understand the differentiated impacts they have on women.

Click here to read the executive summary in English.

Trial waivers in Europe

In Europe, the approach to plea bargaining varies from country to country. 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. This has become even more common during the Covid-19 pandemic when many European countries have introduced new minor offences that often have financial sanctions.

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.