Burden of Proof

In the United States, over 90% of all criminal cases are settled by plea bargain. That is, the defendant agrees to plea guilty to a lesser charge with possibly more favourable sentencing before the case goes to trial. This practice means that the evidence in the case is never tested. That the constitutional right to a trial by a jury of one’s peers is not exerted, and the presumption of innocence is perfunctory at best.

Plea bargaining in its widespread form is a perversion of justice. It implies that guilt or innocence is negotiable, and many minority defendants innocent of crimes nevertheless plead guilty because they see no chance of defending themselves against the leviathan of the state justice system.

In New Zealand

In NZ, there are no statistics collected of plea bargaining. However, there is evidence that the practice is even more widespread. In 2016, district courts concluded 135,003 cases, but only 2,407 were jury trials. 98.2% of the cases are not put to the test. Without statistics of plea bargains actually being collected I am hesitant to put complete faith in my simple calculation, but can confidently estimate that more than 90% of criminal cases are disposed of without jury trials.

Driving this trend is the harsh cuts to Crown prosecution budgets by the former National-led government. In the past Crown solicitors were paid per-day, and it was argued that this incentivised them to extend trials as long as possible. They are now bulk funded, and in 2012/2013 the overall budget was cut by 25%. Thus, cases are prosecuted as fast as possible, and full trials avoided if at all possible.

It is argued that a more efficient system is better because justice is dispensed more promptly. This is against a background of criticism that the system needs to be more victim focussed. I argue that the former is incorrect because of the purpose of the court system being to ascertain proof of guilt, and this precludes efficiency. Thoroughness is by definition time-consuming. The latter point about being more victim focussed is a logical fallacy. The crime is focussed on the victim. The court system is and should be focussed on the alleged perpetrator. Blurring this distinction harms both victims and perpetrators by denying both what they really need. The victim needs support, and the perpetrator needs their guilt proven.

Also, during the years of inappropriate reform there has been an exponential rise in the prison population, leading to overcrowding and poor management of inmates. The prison system is in a state in which it cannot transform into something more humane because it is under constant strain. Effort is instead put into expanding prisons. Corrections and Justice go hand in hand, so reforms to one effect the other.

What to do?

The prison population in NZ is disproportionately high by international standards, and therefore a constraint in the number of convictions, and more sentencing options not involving incarceration could be a start. It would certainly be within the ability of Parliament to affect such reforms through legislation. But that would not be enough. Nor would reversing the previous government reforms be enough.

A complete and seismic shift is necessary. If the public were of its own accord to form a body to design a better system without reference to the status quo, and then force the government to enact it, a revolutionary step would have been achieved without bloodshed or loss of order. A public body of this kind would be superior to parliament in democratic legitimacy, and would lay a framework for further constitutional reform. Anyway, this is the only way to achieve real change. It must come from the bottom, not the top.

 

 

 

 

 

references:

http://equaljusticeproject.co.nz/wp-content/uploads/2016/10/symposiumpaper.pdf

https://www.justice.govt.nz/justice-sector-policy/research-data/justice-statistics/conviction-sentencing-statistics/

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