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Clearing court backlogs through plea bargaining

21 March 2023
Laura Peters
Laura Peters

The Dutch court system is severely backed up. The number of cases is increasing and court proceedings are dragging on. For nearly two decades now, Laura Peters, lecturer at the Faculty of Law of the University of Groningen, has studied — and advocated — the introduction of plea bargaining in the Netherlands to serve as a bypass. ‘Other countries have used plea bargaining for years. The Netherlands is running behind.’

Text: Gert Gritter, Corporate Communication / Photos: Hesterliena Wolthuis

What is plea bargaining?

In the Netherlands, the term ‘plea bargaining’ is pretty much unknown outside the legal community. A plea bargain is basically an agreement in criminal law proceedings between the public prosecutor and the criminal defence attorney. In their deal, they will both make concessions. The prosecution will, for instance, reduce the charges, while the defendant and their attorney will lower their demands and perhaps decide not to call witnesses. The prosecution and the defence attorney will jointly submit their deal to the court. It is important to remember that a plea bargain is not the same as a settlement. A settlement is an agreement on the resolution of a legal dispute before going to court. A plea bargain is also different from a witness deal, which is typically meant to prevent or solve serious crimes committed by a criminal organization.

Backlogs

Peters is deeply concerned about how the court backlogs are delaying, or even paralyzing, the Dutch judicial system. ‘The workload for judges is mounting and victims, defendants, attorneys, the public prosecution service, the police, and the public are growing increasingly frustrated with the situation. The delays are due not only to attorneys wanting to exhaust all defence options and a shortage of judges, but also to overassertiveness: the public prosecution and the defence team tend to be at each other’s throats to achieve the best possible result for their side. Legal proceedings will drag on as a result, sometimes for as long as five years or more.’

"It goes against the general sense of justice when crimes go unpunished and criminals walk free."
"It goes against the general sense of justice when crimes go unpunished and criminals walk free."

Sword of Damocles

‘All that extra work is costing the Dutch taxpayer hundreds of millions of euros, but — more importantly — the delays are leaving everyone involved in the lurch. Victims and their families will know no rest until the court has handed down a verdict. The longer a trial continues, the more victimized they become. Justice delayed is justice denied, as they say. And the same goes for defendants and their immediate family. They also want to know what to expect and how the verdict will affect their lives, whether they are to be convicted or acquitted. They have the sword of Damocles hanging over their heads.’

Waste of time and effort

‘The absolute worst is when the court backlogs cause the public prosecution to decide not to prosecute a criminal case or to abandon the court proceedings. It goes against the general sense of justice when crimes go unpunished and criminals walk free. What is more, it is extremely frustrating for police officers and the public prosecution to find that all their hard work was for nothing and ends up having been a waste of time and effort.’

A more efficient court system

Peters is the Dutch expert on plea bargaining. ‘For a long time, I was the only legal academic in the Netherlands who took an interest in plea bargaining. I wrote my Master’s thesis on the subject in 2005 and my dissertation in 2012 was about plea bargaining as well. When I started my PhD, hardly anyone in the Netherlands knew what plea bargaining was, and nobody really understood my research. But I was fascinated, not only because no one else showed any interest in the topic, but also because I knew that plea bargaining can help create a more efficient and just court system in the Netherlands. I do not write books so I can put them on a shelf, I want my writing to mean something for society.’ We have now come to a point where plea bargaining is attracting a lot more interest, for instance from experts such as judges, attorneys, and the public prosecution service.

"The Netherlands is running behind."
"The Netherlands is running behind."

Outside the box

Peters’ ideas on plea bargaining are informed, in part, by how the system is applied in countries other than the Netherlands. As early as when she was a student of Dutch law at Radboud University in Nijmegen, Peters developed an interest in comparative law: the study of legal systems and how they differ. Her passion for comparative law was fuelled even further when she spent a year studying in Rome and attended a summer school in Vienna. She also worked at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg and the University of Bologna. Besides Dutch and English, she speaks fluent Italian and German and when she is on holiday she has been known to sneak into a court room or two. ‘I love immersing myself in a different legal culture. It has taught me to think outside the box and be open-minded.’

Backroom justice

Peters is the first to admit that plea bargaining is not the be-all and end-all. ‘It is not ideal. The principal benefit is speed, but we should never sacrifice our commitment to due process and everyone should have the chance to be heard. Those are aspects that are fundamental to our justice system. Plea bargaining increases the risk of backroom deals and class justice if white-collar criminals are smarter at making the system work for them than defendants from the lower social classes are. Also, defendants who are not assertive enough might be pressured into a plea deal against their better judgement, which increases the chance of a miscarriage of justice. Those are real risks. We have to be willing to have a conversation about these challenges and mitigate the risks as much as possible through law-making.’

What is next?

Dutch law implicitly already allows plea bargaining. The first successful attempt at plea bargaining in the Netherlands was in September 2022, when public prosecutors and criminal defence attorneys managed to get the courts of Limburg and Rotterdam to agree to a deal they had brokered. Peters: ‘That was revolutionary! The Dutch Supreme Court was onboard as well, subject to the condition that the legislator establish a uniform framework for plea bargaining that clearly delineates boundaries and defines available options. The Supreme Court will team up with the public prosecution service, attorneys, judges, legal academics, and other experts to develop draft legislation that ties in with professional ethics and focuses on collaboration rather than conflict. I have high hopes for 2026, when the Dutch Criminal Code is scheduled to be updated. I am optimistic that plea bargaining will be included. Fingers crossed!’

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Laura Peters

Last modified:21 March 2023 08.49 a.m.
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