International | A deal you can’t refuse

The troubling spread of plea-bargaining from America to the world

A tool for making justice swifter too often snares the innocent

A PROTEST in Madrid about the cost of the pope’s visit in 2011, when Spain’s economy was moribund, was not the first Flavia Totoro had attended. Marching alongside families, she was unconcerned about her safety. But after an altercation with police she and seven others were arrested. She was charged with assaulting an officer. Just before her trial she was offered the chance to plead guilty, in which case she could avoid a possible 18-month prison sentence and merely pay a fine. If all the defendants pleaded guilty, none would be imprisoned, the prosecutor said. But if she insisted on going to trial, the others would go, too. Unwilling to jeopardise other people’s freedom, she accepted, though she still maintains she was innocent and could have proved it in court.

In plea-bargaining, as the promise of a lesser penalty in return for a guilty plea is commonly known, prosecutors offer to drop some charges, to replace the original charge with a less serious one or to seek a lower sentence. It has long been central to America’s criminal-justice system. But over the past three decades it has spread across the world. A study of 90 countries by Fair Trials International, a campaigning group, found that in 1990 just 19 used some form of plea-bargaining. Now 66 do.

Plea-bargaining took off in America around 1920 with Prohibition, which led to a steep increase in the number of criminal offences. By 1930 the number of federal prosecutions under the Prohibition Act alone was eight times the total figure for all federal prosecutions in 1914. Bargaining with defendants to plead guilty in return for lighter punishment seemed like the only way to cope. Prohibition ended in 1933, but plea bargains did not. Since 1970, when the Supreme Court ruled that they were permissible, they have become ubiquitous. In 1980 some 19% of federal defendants went to trial. In 2010 the share was below 3%, where it remains.

Practice in other countries varies widely. In Australia, England and Russia more than 60% of cases are resolved with plea bargains. In Chile, India and Italy, the share is less than 10%. Some recent converts to plea bargains have adopted them with vim. In Georgia, which has allowed them since 2004, the share of convictions that involved a plea bargain rose from 13% in 2005 to 88% in 2012.

Export deals

The central role of plea-bargaining in America goes some way to explaining its spread elsewhere. America’s criminal-justice system has a big influence globally, with legal training often forming part of its foreign-aid efforts. The Office of Overseas Prosecutorial Development Assistance and Training (OPDAT), part of the Department of Justice, was established in 1991, after the break-up of the Soviet Union and as the war on drugs in Latin America intensified. Among the countries where America helped new governments with legal reforms are Bolivia, Colombia, Poland and Russia. Plea-bargaining was often among the suggested reforms.

OPDAT is now helping to write guidance on criminal procedures, including plea-bargaining, in Croatia and the western Balkans. In Ukraine it trains justice officials in the system. Last year it started work with Guatemala on introducing plea-bargaining to clear a backlog of cases.

American influence, however, is not the only reason for plea bargains’ spread. Transitions to democracy often involve shifting from “inquisitorial” systems associated with discredited regimes, in which judges play an investigative role, says Rebecca Shaeffer of Fair Trials International. As countries adopted adversarial systems, in which judges act as referees between the prosecution and defence, they also sought to expand capacity—and introducing plea-bargaining enabled them to handle more cases.

More broadly, plea-bargaining can cut costs and delays. Without an incentive to plead guilty, even defendants facing overwhelming evidence may decide to take their chances in court. Finland brought in plea-bargains in 2015 after a series of cases in which the European Court of Human Rights ruled that it had violated citizens’ right to a timely trial.

A plea bargain can even offer an immediate route out of jail. Around the world almost 3m people are held in pre-trial detention. Many defendants spend longer in pre-trial detention than the maximum sentences they face. At that point, “of course they want to plead guilty to get out of prison,” says Isadora Fingermann, a Brazilian former criminal lawyer who now works in criminal-justice reform.

Another benefit of plea-bargaining is that it helps to tackle organised crime. A law passed in Brazil in 2013 allowing public prosecutors to slash sentences for defendants who made full confessions and provided detailed evidence against their accomplices was essential to Operation Lava Jato (Car Wash), an investigation into graft at the state-controlled oil firm, Petrobras. It has since cut a swathe through the country’s once-untouchable politicians, thanks to the evidence provided by bribe-paying businessmen desperate to stay out of jail.

The strong arm of the law

When America’s Supreme Court gave its seal of approval to plea bargains in 1970, it did so on the understanding that they would not be used to press innocent defendants falsely to admit guilt. But since then a series of miscarriages of justice and new psychological research suggest that, all too often, that is what happens.

In 2002 Brian Banks, a high-school football player, was accused of rape and kidnapping by an acquaintance. After his arrest, prosecutors offered him the chance to plead guilty and spend just a few years in jail, or to go to trial where he could face up to 41 years if convicted. He took the deal. After he was released, his alleged victim contacted him. They met and, in a conversation which he recorded, she admitted that she had invented the incident. In 2012 he was exonerated.

Mr Banks is not alone in pleading guilty to a crime he did not commit. Of the 149 Americans absolved of crimes in 2015, 65 had pleaded guilty. The Innocence Project, an organisation that uses DNA evidence to re-examine convictions, has proven the innocence of 300-odd people, most of them convicted for rape and murder. At least 30 had pleaded guilty. According to the National Registry of Exonerations, a collaboration between several law schools, a quarter of Americans cleared of murder between 1989 and 2012 had confessed. But such figures only hint at the scale of the problem. Often, plea bargains are conditional on giving up the right to challenge a conviction later. And exoneration efforts focus on serious crimes, where sentences are long and there is more likely to be forensic evidence.

Researchers are starting to demonstrate how common false confessions are likely to be. In a study in 2013 by Lucian Dervan of the Belmont University College of Law, together with Vanessa Edkins, a psychologist at the Florida Institute of Technology, students were asked to solve logic problems, first in a team and then alone. An accomplice of the researchers asked half the participants for help on the second set. All were then accused of cheating and offered a “plea bargain” to avoid penalties that could include losing the payment for participation and having their supervisors notified. Nearly 90% of those who had aided the accomplice confessed. But so did a majority of those who were innocent.

Mr Dervan is now running studies in Japan, which is introducing plea-bargaining, and South Korea, which may do so. Japan, where criminal suspects may be held for 23 days without charge, often with only minimal contact with a lawyer, perhaps deprived of sleep, is already worryingly good at extracting confessions. Plea bargains are being brought in as part of the horse-trading over a larger criminal-justice reform, in which prosecutors opposed to routine recording of interrogations have managed to limit it, in exchange for formal recognition of plea-bargaining and other aids to investigating complex crimes.

Early results suggest that the “innocence issue” is universal, says Mr Dervan. Differences in legal systems do not change the rate of false confessions much. Another study he is conducting suggests that guilty participants are no more likely to plead guilty if offered a big incentive rather than a small one. Innocent ones, however, become more likely to make false confessions as the incentive—in other words the penalty for rejecting the deal—rises.

The fear that plea bargains may induce false confessions means many countries have strict rules regarding their use. Japan will limit them to serious crimes where the accused informs on someone else. In Germany, South Africa and Spain defendants are shown all the evidence to be presented against them before they decide whether to accept a deal. In Germany, the discounted sentence cannot be less than the statutory minimum for that crime. In England, sentences can be cut by at most a third.

In America, by contrast, prosecutors have broad freedom to slash sentences, including for crimes that carry the death penalty. Extremely long sentences, mandatory-sentencing rules and untrammelled prosecutorial discretion add up to a system that almost seems designed for abuse.

And yet so entrenched are plea bargains in America that the occasional attempts to do without them have failed. Between 1975 and 1990 they were banned in Alaska. Even then, they happened informally. Judges made implicit deals with defendants who pleaded guilty. One study found that sentences after trials for violent crimes were, on average, 445% longer than those given after pleas. For fraud, they were 334% longer. The Texan city of El Paso banned plea-bargaining in 1975. During the following two years the trial rate doubled and the two judges assigned to criminal cases could not cope. Ten more were assigned to help them, but even so prosecutors started to strike secret bargains, with judges’ encouragement. The ban was eventually rescinded.

The extensive use of plea-bargaining can reshape an entire criminal-justice system. By definition, it means fewer trials—and therefore fewer occasions on which police and prosecutors must make a solid case in an open courtroom. The ability to carry out investigations can atrophy. And statutes that are vague or unjust may go unchallenged because so few cases go to trial.

For defendants who plead guilty, the consequences go beyond any (reduced) sentence they must serve or fine they must pay. In Europe criminal records are usually wiped clean of all but the most serious offences after some time, provided people do not re-offend. In the meantime, however, sensitive jobs such as teaching or public administration are likely to be off-limits. And minor transgressions, such as traffic offences, may be punished more harshly.

In many American states the consequences are more severe and long-lasting. Criminal records may never be expunged and may mean being barred from voting, evicted from public housing, denied welfare or turned away when applying for a job. The extra legal restrictions placed on people with criminal records, some bizarrely specific, mean they are more vulnerable to future charges. In Illinois, for example, it is a crime to own a dog that has not been spayed or neutered—but only for people with a criminal record.

Tilting the scales

All this suggests that defendants should carefully weigh the long-term consequences of a guilty plea. But it seems they do not—even when explicitly nudged to do so. In a separate study, Mr Dervan found that informing participants about those consequences made little difference to the likelihood that they would accept a deal. “If pleading guilty means you get to go home, most will plead guilty,” he says. When the justice system is stacked against defendants, they are unlikely to gamble their futures for its greater good.

This article appeared in the International section of the print edition under the headline "A deal you can’t refuse"

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