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The end of the courtroom trial – and why we should be worried

People accused of crimes are increasingly being incentivised to simply plead guilty.

When people think of justice, it’s often the same images that are conjured up. The wood-paneled courtroom, the judge in wig and gown. A jury sat attentively. Two sides fighting for justice. Grandstanding speeches. The trial is the archetype of criminal justice.

In reality, though, the trial is starting to disappear. People accused of crimes, are increasingly being incentivised to simply plead guilty and to waive their right to a trial. In the US, where a fifth of the world’s prison population reside, a shocking 97 per cent of cases don’t go to trial at all. Instead people are convicted following plea bargains struck with prosecutors.

And it is not only in the US that the trial is disappearing. Fair Trials recently published our own report – The Disappearing Trial – which shows this growing global trend towards encouraging guilty pleas. The world over, trials are increasingly seen as too costly and inefficient. Too often the justice system is seen by policy-makers as a production line. From that perspective, trials just get in the way of processing “outcomes” as quickly and efficiently as possible. Defendants are incentivised to give up their right to a trial and plead guilty to streamline the process.

In the UK, too, this is happening. In the higher courts of England & Wales the vast majority of convictions (about 90 per cent) result from guilty pleas, not trials. There are strong incentives for defendants not to go to trial and to plead guilty as quickly as possible – even before seeing the evidence against them and, in some cases, before getting legal advice.

The obsession with the guilty plea as the silver bullet solution to all ills in the justice system (and, there are many) has come up again in light of the Lammy Review, the independent review of the treatment and outcomes for Black Asian and Minority Ethnic people in the justice system.

There is much I would agree with in David Lammy’s Review, which asked a number of valid questions about the experience of BAME defendants in the criminal justice system. But there is a whole chapter on “Plea Decisions” which should cause some pause for thought.

Lammy’s conclusion is that one solution to the disproportionate presence of BAME defendants in prisons is for more BAME people to plead guilty. The argument goes that if these defendants pleaded guilty as often as white defendants, they’d be more likely to avoid prison – because you get a reduced sentence (in many cases non-custodial) if you plead guilty.

Why is this a problem? Well, it might be focusing on the wrong question. Who’s to say that black defendants don’t more often have good reason to proceed to trial – for example, because they have been wrongfully or over-zealously arrested or charged by the police, or because their rights have been violated in the process?

I am not convinced that encouraging BAME defendants to give up their right to trial is the best way to build their trust in the justice system. In the context of widespread discrimination at multiple levels from arrest to charge to sentencing, recognised in Lammy’s Review, it's no wonder BAME defendants more often choose to plead not guilty to seek their day in court and to challenge the case against them.

Does the UK really want to encourage a system where it is quicker and easier to convict more BAME defendants that enter the criminal justice system? Perhaps a guilty plea (at least on a peron’s first encounter with the police) can keep them out of prison, but criminal convictions still blight lives. In the US, the mass criminalisation facilitated by guilty pleas has decimated entire BAME communities.

I hope that the focus of the much-needed reforms proposed by Lammy is on true diversion from the criminal justice system, rather than on encouraging more and quicker guilty pleas. Guilty pleas definitely have a place in criminal justice systems, but without safeguards, they can and will cause injustice.

Jago Russell is chief executive of Fair Trials

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Can a “Momentum moment” revive the fortunes of Germany’s SPD?

Support for the centre-left Social Democratic Party (SPD) has sunk into third place, behind the far right Alternative for Germany.

Germany has crossed a line: for the first time in the history of the federal republic, the Social Democratic Party (SPD) has sunk into third place, polling just 15.5 per cent – half a point behind the far-right Alternative for Germany (AfD). The poll was published on the day the SPD membership received their postal ballots on whether to enter another grand coalition with Angela Merkel’s Christian Democrats, and inflamed debate further.

For the grassroots coalition opposed to the so-called GroKo (Große Koalition) the poll is proof that the SPD needs a fundamental change of political direction. Within the two grand coalitions of recent years, the SPD has completely lost its political profile. The beneficiary each time has been the far right. Yet another GroKo seems likely to usher in the end of the SPD as a Volkspartei (people’s party). Taking its place would be the AfD, a deeply disturbing prospect.

For the SPD leadership, the results are proof that the party must enter a grand coalition. Failure to do so would likely mean new elections (though this is disputed, as a minority government is also a possibility) and an SPD wipeout. The SPD’s biggest problem, they argue, is not a bad political programme, but a failure to sell the SPD’s achievements to the public.

But is it? The richest 45 Germans now own as much as the bottom 50 per cent. According to French economist Thomas Piketty, German income inequality has now sunk to levels last seen in 1913. Perhaps most shockingly, the nominally left-wing SPD has been in government for 16 of the last 20 years. Whatever it has been doing in office, it hasn’t been nearly enough. And there’s nothing in the present coalition agreement that will change that. Indeed, throughout Europe, mainstream left parties such as the SPD have stuck to their economically centrist programmes and are facing electoral meltdown as a result.

The growing popular anger at the status quo is being channeled almost exclusively into the AfD, which presents itself as the alternative to the political mainstream. Rather than blame the massive redistribution of wealth from the bottom to the top, however, the AfD points the finger at the weakest in society: immigrants and refugees.

So how can the SPD turn things around by the next federal election in 2021? 

The party leadership has promised a complete programme of political renewal, as it does after every disappointing result. But even if this promise were kept this time, how credible is political renewal within a government that stands for more of the same? The SPD would be given the finance ministry, but would be wedded to an austerity policy of no new public debt, and no increased tax rises on the rich. 

SPD members are repeatedly exhorted to separate questions of programmatic renewal from the debate about who leads the party. But these questions are fundamentally linked. The SPD’s problem is not its failure to make left-wing promises, but the failure of its leaders to actually keep them, once in office.

The clear counter-example for genuine political renewal and credibility is, of course, Labour under Jeremy Corbyn. In spite of all dire warnings that a left-wing programme was a sure-fire vote-loser, Labour’s massively expanded membership – and later electorate – responded with an unprecedented and unforeseen enthusiasm. 

A radical democratic change on the lines of Labour would save the SPD party from oblivion, and save Germany from an ascendent AfD. But it would come at the cost of the careers of the SPD leadership. Sadly, but perhaps inevitably, they are fighting it tooth and nail.

Having promised an “especially fair” debate, the conflict over the GroKo has suddenly surged to become Germany’s Momentum moment - and the SPD leadership is doing everything it can to quash the debate. Party communications and so-called “dialogue events” pump out a pro-GroKo line. The ballots sent out this week came accompanied by an authoritative three-page letter on why members should vote for the grand coalition.

Whether such desperate measures have worked or not will be revealed when the voting result is announced on 4 March 2018. Online, sentiment is overwhelmingly against the GroKo. But many SPD members (average age is 60) are not online, and are thought to be more conservative.

Whatever the outcome, the debate isn’t going away. If members can decide on a grand coalition, why not on the leadership itself? A direct election for the leadership would democratically reconnect the SPD with its grassroots.

Unless the growth in inequality is turned around, a fundamental reboot of the SPD is ultimately inevitable. Another grand coalition, however, will postpone this process even further. And what will be left of the SPD by then?

Steve Hudson is a Momentum activist and a member of both Labour and the SPD. He lives in Germany, where he chairs the NoGroKo eV campaign group.