It’s common knowledge that the United States has a criminal justice problem: You don’t get to be the world’s biggest jailer with the world’s longest sentences out of an excess of respect for fair trial rights. But while it’s true that some of America’s more glaring human rights problems are absent in Europe, even within the European Union there is no Shangri-La for fair trials.
As a fresh law graduate who worked my way through school as a defense investigator on a federal death penalty case, I left the United States six years ago for London to work on criminal justice policy in Europe. I was sure that with its dedicated human rights court, comparatively shorter sentences and more humane rehabilitation policies, Europe’s right to a fair trial would be better protected.
[Other perspectives: The presumption of innocence doesn’t apply to my child]
In reality, it’s only very recently that the right to a lawyer — a bedrock aspect of the right to a fair trial — has been adequately protected in Europe. Prior to Salduz v. Turkey, a European Court of Human Rights case in 2008, access to a lawyer in the time immediately following an arrest (when risk of torture, coerced confessions and other abuses is most acute) was not guaranteed in much of Europe.
In Scotland, people could be held for up to six hours without access to a lawyer until the United Kingdom Supreme Court forced them to develop a system for immediate legal representation. In France under the garde à vue (preliminary police custody) system, suspects could be held for up to two days without a lawyer, until France implemented the Salduz decision in 2011. Even now, in the famously progressive Netherlands (where the Supreme Court has recently weighed in) and in Austria, defense lawyers attending police station interrogations are not permitted to intervene in any way, with interrogation rooms designed so that suspects cannot see their lawyers.
As a former investigator, I was also shocked to discover that nowhere in Europe — even in the United Kingdom, where adversarial criminal trial was invented — is it common for defense counsel to independently investigate the government’s allegations against the counsel’s clients. In many European systems built upon civil and inquisitorial traditions, the defense is not permitted to do so; at most, it can make evidential requests of investigating judges or prosecutors. Defense lawyering is generally at its most zealous in the United States (though to what effect is not clear, given the overwhelming scale of prosecution, conviction and incarceration in the United States).
Despite its strong criminal defense tradition, criminal justice is in crisis in the United States, where overzealous, discriminatory policing practices and excessive sentencing aren’t the only forces causing challenges to the right to a fair trial. Consensus on those problems has led to new bipartisan efforts at both state and federal levels to reform sentencing regimes and reduce incarceration and the routine use of solitary confinement. Procedural rights such as effective access to a competent lawyer, the presumption of innocence and the right to a trial itself in the age of plea bargaining (which now disposes of more than 95 percent of criminal cases in the United States) are also in urgent need of strengthening.
Both Europe and the United States are in the midst of a zeitgeist of criminal justice reform — largely focused on sentencing in the United States and on procedural rights in the E.U. The E.U.’s legislative bodies have been motivated to improve fair trial rights by strengthening judicial cooperation among member states and adopting a number of new binding laws on defendants’ rights: not only the right to a lawyer, but also to access to interpretation and translation, to information (Europe’s new version of Miranda rights) and to the presumption of innocence.
As Europe is improving its commitment to equality in criminal proceedings by beefing up defendants’ rights, the United States has much to learn from European experiences implementing these protections. There are a number of pragmatic solutions, such as “duty lawyers” who attend police stations 24 hours a day; accessible documents provided to all arrested people detailing their rights to complement Miranda-style warnings; regular compensation for unlawful imprisonment; and limitations on the media and on prosecutorial power to compel confessions and guilty pleas to protect the presumption of innocence.
No nation has a monopoly on criminal justice solutions or failures. Just as Europe is transcending national traditions to set new standards in criminal procedural rights, the United States has the opportunity to rehabilitate its commitment to the fair trial principles that speak to the noblest aspects of its history and identity.
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