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NEWS

Fair Trials highlights the impact of trial waiver systems and drug policy on human rights

admin - June 4, 2018 - The disappearing trial, prison conditions

Last month, Fair Trials submitted information to the Office of the High Commissioner for Human Rights that highlighted the impact that punitive drug policies and the global growth of trial waiver systems has had on human rights, and how these two forces have combined to drive mass incarceration.

Over the last few decades, states have taken a punitive approach to drugs, with many states choosing to criminalise possession even of small quantities of drugs. This approach has unquestionably placed a larger demand on criminal justice systems, as harsh drug policies such as mandatory minimum sentencing laws meant that not only were more people being criminalised, but they were also receiving longer sentences. At the same time, a global push for efficiency in criminal justice procedures has resulted in the growth of “trial waiver systems”. Fair Trials report, The Disappearing Trial, found that there has been a 300% growth of trial waivers globally since 1990, with 66 out of 90 jurisdictions surveyed in the report using some form of trial waiver system. Although trial waiver systems are often perceived as a means of reducing prison overcrowding by increasing efficiency, they may in practice have the opposite effect by allowing countries to process larger volumes of cases with less judicial oversight, thereby resulting in higher rates of conviction.

In the USA, for example, 46.2% (over 79,000 people) of the federal prison population is currently incarcerated for drug offences, in a system in which 97% of cases are resolved through guilty pleas. Furthermore, there has been a disproportionate impact on ethnic minorities: despite representing just 13.3% of the overall population in the USA, black or African American people represent 37.9% of the federal prison population.

Fair Trials’ submission highlights the dangers of trial waiver systems where proper procedural safeguards and judicial scrutiny are not in place, and how this intersects with punitive drug laws to drive mass incarceration. For example, in some Latin American countries, pre-trial detention is mandatory for drug offences, despite the fact that international law clearly states that pre-trial detention should be an exceptional measure. A report by the Inter-American Commission on Human Rights (IACHR) noted that in some countries, pre-trial detention is used to try and induce guilty pleas, and several recent studies have found that people held in pre-trial detention are more likely to plead guilty than those released on bail. Drug laws that require pre-trial detention can therefore increase guilty pleas, resulting in the criminalisation of suspects who have sometimes not had their cases properly scrutinised or had adequate access to a lawyer.

Furthermore, the submission outlines concerns that plea deals can sometimes be used to mask illicit police activity such as unlawful stop, search, arrest and seizure, fabrication of evidence and even torture. Without the procedural guarantees of a full trial where evidence can be openly challenged, plea deals may be used to win convictions in cases that may otherwise have ended in dismissal or acquittal due to procedural rights violations or lack of evidence.

Fair Trials’ submission came in response to a call from the United Nations Office of the High Commissioner for Human Rights (OHCHR) for input from NGOs and civil society organisations into a report on the implementation of the joint commitment to effectively addressing and countering the world drug problem with regards to human rights.

The UN Human Rights Council instructed the OHCHR to produce this report in the wake of the UN General Assembly Special Session (UNGASS) in 2016 on Countering the World Drug Problem. UN General Assembly Special Sessions are rare, and the 2016 UNGASS was held three years in advance of its previously planned date in recognition of the urgent need to address the consequences of the ‘war on drugs’. The UNGASS produced an outcome document containing several commitments from states to abide by certain human rights standards in their approach to drug policy and criminal justice, which included a commitment to ‘legal guarantees and due process safeguards’. Two years later, the OHCHR report will assess how successfully and to what extent states are implementing the commitments made in the outcome document with regards to human rights. Although many states have undertaken reforms to drug policies since 2016, Fair Trials’ submission outlines that there is still significant progress to be made in ensuring that defendants are afforded all of their due process rights and legal safeguards in the face of punitive drug laws and the growth in the use of trial waivers.

Read our submission to the OHCHR here.

To find out more about the global growth of trial waiver systems, read the Disappearing Trial report.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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