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NEWS

Following Fair Trials’ testimony, Brazil’s deputies reject plea bargaining

admin - August 20, 2019 - plea bargaining, trial waiver systems

 

On 6 August, Fair Trials’ Senior Lawyer Rebecca Shaeffer participated at the hearings of the Brazilian Senate and Chamber of Deputies on the new controversial “anti-crime” bill that seeks to toughen Brazil’s approach to organized crime. Fair Trials was invited by Instituto de Defesa do Direito de Defesa and a network of civil society organisations mobilising around the bill, which was authored and championed by the Minister of Justice and Public Security, Sergio Moro, a prominent figure in Jair Bolsonaro’s government who is currently embroiled in a corruption scandal. Following Fair Trials’ testimony on the problems around trial waivers in the US, the working group analysing the bill in the Chamber of Deputies rejected - by eight votes to three - the proposal to introduce plea bargaining, a legal regime that encourages suspects to admit guilt and waive their right to a full trial, into the Brazilian criminal justice system.

The proposal to introduce plea bargaining systems in Brazil was inspired by the US model, which has been criticised by lawyers and human rights advocates in recent years. Indeed, the US is without a doubt the world leader in the use of plea bargaining, where guilty pleas account for 98% of convictions at the federal level.

At the hearings of the Senate’s Committee on Constitution, Justice, and Citizenship and the Chamber of Deputies’ working group DG PENAL, Rebecca noted that the loss of criminal trials in the US over the past several decades can be closely linked to the phenomena of mass incarceration where about 12 million people are admitted to jail every year, while a third of black men have a felony conviction. “Without a trial, it becomes very easy to obtain convictions,” argued Rebecca Shaeffer at the hearing.

“Although the US preaches an open, adversarial form of justice, we’re actually operating in an inquisitorial, confession-based style of justice that doesn’t belong in a democratic system. This is not a phenomenon Brazil wants to emulate,” she added.

Procedural safeguards which contribute to the protection of the right to a fair trial are also necessary within trial waiver systems. Although the right to legal representation exists in the US, in reality prosecutors may offer defendants plea deals before a defendant has the opportunity to engage one. This inevitably means defendants lack information about their rights and the implications of accepting the plea deal, both of which are necessary to ensure that any waivers are voluntary and intelligent.

The procedural guarantees of the trial do not only protect individual rights; they also provide one of the few opportunities for judicial and public oversight of police and prosecutorial practices, which may be incentivised to use coercion and even torture to extract confessions. However, as Fair Trials’ report 'The Disappearing Trial' shows, judges in US criminal system have a passive role in the negotiations, and in some jurisdictions they are even prohibited from involvement in them.

Although trial waivers may be adopted to reduce backlogs, rates of detention and public spending, plea bargaining has actually led to the expansion of the criminal justice system in the US by criminalising homelessness, substance abuse disorders and mental health issues. “With plea bargaining it’s so easy to win convictions that too many social problems are converted into questions of criminality,” Rebecca Shaeffer noted.

Moreover, the paradoxical relationship between pre-trial detention and plea bargaining means that although plea bargaining is often used to reduce pre-trial detention, plea bargaining also requires pre-trial detention to act as a coercive force on defendants to induce them to plead guilty. The widespread use of trail waivers has not positively impacted rates of pre-trial detention in the US.

The proposed anti-crime bill contains a number of other dangerous provisions with serious implications for human rights protection in Brazil, including provisions that expand the self-defence justification for police killings of civilians, introduce a new DNA database for criminal suspects, and allow custody hearings to be conducted via video-link. When the bill was first introduced, it was touted as an anti-corruption bill and contained regulations on campaign finance. However, these have been dropped under political pressure.

In our testimony at the hearing of the Chamber of Deputies, deputies of the DG PENAL working group were urged to avoid the worst abuses that can accompany plea bargaining when it is not sufficiently regulated and subject to judicial control. Trial waiver systems certainly have advantages, but they are not without risks; they require key safeguards to ensure that plea bargaining can operate fairly. Shortly after, members of working group analysing the anti-crime package voted to exclude plea bargaining from the bill, which will be submitted to the plenary of the Chamber of Deputies in the coming weeks for a vote. However, the legislative process is still ongoing, and plea bargaining could still be introduced in the final draft bill.

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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