Plea bargaining as a human rights question

Abstract

The right to a fair hearing is a basic norm in international human rights law, which envisages a fair trial where the accused is presumed innocent until proven guilty. However, contemporary criminal justice accommodates pleas of guilt subject to guilty plea standards under plea bargain agreements, where the accused are assumed to have voluntarily waived full trials, primarily for judicial expediency and efficiency. Human rights law has embraced the legitimacy of plea bargaining, subject to the minimal standards of a voluntary, informed, unequivocal, and fact-based plea of guilt, to validate the proceedings as a fair hearing. This article seeks to examine the human rights concern of whether or not a plea bargain entered by an accused is truly voluntary, in light of the larger question of the right to a fair hearing, which right is non-derogable. This article argues that the accused may, in some cases, enter into plea bargaining involuntarily, primarily in pursuit of expedited release or to escape pre-trial indeterminate detention, among other unsurmountable coercive circumstances they might be going through at the time. It recommends a procedural cocktail solution to ensure that plea bargaining operates fairly. These can comprise: statutory timeliness through systemised bargain processes’ deadlines; a robust state-funded legal aid; use of non-coercive means during negotiations; judicial oversight and independence; statutory preservation of the accused’s rights against self-incrimination, appeal or judicial review to protect due process; and a sealed official record of the terms of the plea agreement to ascertain procedural validity for appeals or judicial reviews.