Across the pond

In the previous article we expressed concern about the UK’s criminal justice system, but this is not about finding fault with Great Britain; this series aims to highlight deficiencies of the criminal justice system of the West. To drive this point home, we shift our focus across the pond to take a look at the US.

The previous article showed that in recent years a significant number of people were found guilty of crimes that could not be proven to have taken place.

In the first case, mothers were found guilty of murdering children who had in fact died from sudden infant death syndrome. The Horizon Post Office Scandal, meanwhile, is currently still unfolding. Hundreds of sub-post masters were found guilty of theft over a 20-year period and sentenced to imprisonment based on accounting records that created false shortfalls.

The purpose of the criminal justice system is to ensure that only the guilty are prosecuted and that individuals are protected from the State. As pointed out in the previous piece, the British justice system is usually regarded as the best in the world – the Gold Standard, so to speak. If there is a problem with the UK criminal justice system, concerns exist about the entire Western criminal justice system.

The state of things in the US

The US criminal justice system is worse than the British system. In practice, the system is meant to ensure that no-one will be deprived of their life, liberty, or property without the due process of law (in other words, until declared guilty by a duly convened court of law). In the US, however, this due process disappeared years ago. 

In 2016, US Federal Judge Jed Saul Rakoff wrote an article published in the New York Review of Books. Here, he explained why Americans will not get their day in court. Very few cases ever get decided by juries and judges. Rakoff pointed out that in more than 97% of federal cases, those being charged agree to a negotiated plea bargain. This figure is only slightly less in the state courts, at 95%.

By accepting a plea bargain, not only do the accused agree to the crime, but they also agree to the sentence; neither a judge nor a jury have anything to do with it. The plea bargains are designed to be accepted: as Rakoff pointed out, there is “a vastly increased risk of a heavy penalty in going to trial”. No doubt, many innocent people would rather plead guilty than spend a very long period in jail if found guilty in a court of law – even for a crime they did not commit.  

For all practical purposes, virtually every US prisoner has signed themselves into jail. “While the immediate result is the so-called mass incarceration in the United States that has rightly become a source of shame for our country, the effect can also be seen as just one more example of the denial of meaningful access to the courts even in the dire circumstances of a criminal case,” Rakoff explained.

“Arguably, even worse, the situation I’ve described reinforces the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful,” he continued. “If the judges themselves do not take steps to counter this insidious trend, who will?”

When 95% of criminal cases do not go to trial, for all intents and purposes there is no real meaningful criminal justice system.

The rise of South Africa’s halfway criminal justice system – the administrative penalty

As the criminal justice system has receded into the background in our own country, a new system is emerging: the system of administrative penalties. This is very much a copy of the US criminal justice system … except that it is very profitable for the state.

As we have seen, when faced with a criminal charge, the prosecutor offers the accused person an alternative: the plea bargain – the negotiated settlement. This method has been used for a long time in civil matters. For example, a plaintiff may have grounds to believe that if they win a case, they will be entitled to R4 million. However, if the case goes to court, they may lose and end up paying the costs of the other side. In such a case, the other side may offer a settlement of R2 million – without the risk. The plaintiff duly accepts.

This halfway system is being used by government agencies such as the competition regime, where they threaten corporations with a multi-million-rand administrative fine and then offer a leniency agreement if the firm pleads guilty. The government agency does not really want to go to court; it prefers the money. Firms get tired of the never-ending case and simply agree to admit guilt and pay. In this way, everyone can get on with their lives.

The recent bank collusion case is an example of this modern halfway system. A decade or so ago, several South African and international banks were investigated by the South African competition agency for collusion in the forex market. When firms have been accused in the past, they have usually entered into the leniency agreement, paid the fine, and moved on. The agency points out that if the leniency agreement is not accepted, the firm will face the full might of the legislation, which allows a fine equal to a significant percentage of turnover to be levied. That threat is normally enough for the agreement to be accepted.

In this case, though, the South African banks refused to enter into the agreement; some of the international banks eventually agreed to do so, following the path trodden by 95% of US citizens. The agency decided to press on with its case, but in the end the relevant court decided the agency had no case. Now, the matter is on its way to the Constitutional Court. 

Where the administrative penalty is imposed, there is no talk of a criminal prosecution; the administrative penalty replaces the criminal justice system. As pointed out, however, this is following the US criminal justice system of negotiated payouts.

This article has concentrated on the criminal justice system, but for the sake of completeness, it should be pointed out that a similar process is underway in the civil justice system. Again, the point Rakoff highlighted was “the increasing diversion of legal disputes to regulatory agencies”. This is also happening in South Africa. In the financial sector, for example, very few disputes go to court and administrative systems have been set up to deal with these disputes. The net result, however, is that in an increasing number of cases the courts are being excluded from making decisions.