Pre-trial detention and guilty pleas: Inducement or coercion?

Abstract

This article examines why accused persons in pre-trial detention decide to plead guilty. Relying on the understanding of coercion proposed by Brunk, the article go beyond his analysis to show how pre-trial detention can exert pressure on an accused individual, who then feels coerced into pleading guilty. Interviews with 12 accused and 12 lawyers showed that in certain situations pre-trial detention can be a source of coercion, particularly if there are lengthy procedural delays and eventual sentences can be expected to be fairly short. However, there are other situations in which custodial remand acts as an inducement rather than as coercion or does not exert any pressure on the accused.

Keywords

coercion free and informed decision guilty plea pre-trial detention

Introduction

In Canada, the vast majority of criminal cases are resolved by a guilty plea, thus avoiding the need for a trial. The guilty plea often follows negotiations between defence counsel and the Crown prosecutor, which can occur at varying stages in the judicial process. Negotiations end when the two sides agree on a proposal to be presented to the judge, who, unless the proposed outcome is completely unreasonable, usually endorses it (Piccinato, 2004).

Although the practice of negotiating settlements is very common – it is estimated that approximately 90% of criminal cases in Canada are resolved by a guilty plea (Kellough and Wortley, 2002) – it remains controversial. Plea bargaining can create an image of justice as a commodity, which is incompatible with the principles of equity and law enshrined in the Canadian Charter of Rights and Freedoms (Piccinato, 2004). As well, because it takes place behind closed doors and in the absence of the main players (the victim and the accused) it lacks the openness and transparency promised by the rule of law (Piccinato, 2004; Verdun-Jones and Tijerino, 2002). Outside Canada, the topic of plea bargaining has been studied for some time, and research papers already emphasized the limits of plea bargaining. One of the first major contributions was made by Newman (1956), who showed that most theft cases in a United States district were settled not through an adversarial process involving lawyers and prosecutor but by a negotiated compromise. His results show that while this compromise is beneficial for all stakeholders (prosecutors, the court, defendants), it raises questions about underlying aspects of the process, such as that the main factor in settling a case may be lawyers’ skills rather than the merits of the case itself. In England, plea bargaining was not as easily accepted. In their book Negotiated Justice, Baldwin and McConville (1979) studied settlements in criminal cases in the Birmingham Crown Court and show that the adversarial principle of English justice is often undermined by an attempt to achieve administrative expediency as a way to deal with overcrowded courts. Attempts to arrive at settlement can put pressure on the accused and lead to unjust outcomes: 71.7% of the defendants in their sample said they had pleaded guilty under pressure, even though some of them were innocent of the crimes they were accused of. In Australia, Roach Anleu and Mack (2009) observed criminal proceedings in lover courts, and found that magistrates use strategies to encourage guilty pleas. For example, they could offer a possible sentence discount to the defendant if he accepts to plead guilty.

Plea bargaining has also been criticized in the literature because of the pressure it can exert on the accused. For many, a guilty plea is rarely a free and informed decision but rather the result of pressure. This pressure can come from lawyers (Bibas, 2004) or from the justice system itself, which often rewards a negotiated plea with a withdrawal of charges, a more lenient sentence, etc. (Bibas, 2004; Bowers, 2008; Langbein, 1978; McCoy, 2005). Such pressure is often exacerbated by the situation of the accused, who may have to deal with addiction or mental health problems (Flynn and Fitz-Gibbon, 2011), a lack of information about the judicial system (Erickson and Baranek, 1982), or limited financial resources (Poirier, 1987). Several authors have shown that custodial remand can constitute structural coercion, putting pressure on the accused and inducing them to plead guilty (Chen, 2013; Kellough and Wortley, 2002).

Overview – Pre-trial detention, an important source of coercion

During the period 2010/2011, 53% of individuals detained in Canadian provincial prisons¹ were there awaiting trial (Porter and Calverley, 2011). The criteria for being placed in pre-trial detention are specified in the Canadian Criminal Code.² However the rather broad formulation given there as well as current practice mean that this measure is no longer reserved for individuals whose release may pose a danger to others (Myers, 2016).

Recent research on detention in Canada, as elsewhere in the Western world, has focused on the difficult and harmful nature of pre-trial detention. Vacheret and Brassard (2015) studied defendants in Quebec and highlight the difficult living conditions of these prisoners, who are considered a “temporary population” by the prison authorities. Research also shows that detainees are often treated more harshly by judges: they are more likely to be found guilty and given a stiffer sentence, frequently one that involves a prison term (Kellough and Wortley, 2002; Reaves and Perez, 1992). Although authors do not always agree on an explanation for these differences, many suggest that persons on remand are subjected to more pressure and a harsher sentence because judicial actors may see them as more dangerous or more culpable than prisoners who are allowed out on bail (Kellough and Wortley, 2002; Weinrath, 2009; Williams, 2003).

Kellough and Wortley (2002) argue that pre-trial detention is a tactic used by the courts to extract guilty pleas: “rather than ‘managing risk,’ our findings reveal that the detention of accused persons is a rather important resource that the prosecution uses to encourage (or coerce) guilty pleas from accused persons” (Kellough and Wortley, 2002: 186). They support this argument with data obtained from observing 1,800 criminal cases in courts in Toronto, Ontario, supplemented with information from the criminal, police, and correctional records of the offenders. Their results showed that prosecutors are 2.3 times less likely to withdraw charges against a detainee than against someone free while awaiting trial. These findings remain the same even after allowing for important variables in the case (type and number of charges, criminal record, etc.). The results also show that a higher proportion of detainees pleaded guilty (81% vs. 56% for those released pending trial). Interviews with detainees allow Kellough and Wortley (2002) to provide some perspective on the reasons detainees may feel forced to plead guilty. First, some accused believed that a guilty plea would allow them to escape difficult detention conditions through being transferred to a correctional facility with better facilities and easier access to programs, work, etc. Some detainees mentioned that having been in custody had made them lose hope that they could win their case – if they could not convince the judge at this stage, they found it hard to see how they could win in a trial. Finally, others said they wanted to avoid “dead time,” which, according to detainees, has two aspects. First, it is seen as unnecessary time spent incarcerated, either because the sentence they will eventually get does not merit imprisonment or because the time spent on remand will be the same (or less) than the expected sentence. By pleading guilty they get out of prison, but if they refuse to plead guilty they are forced to remain incarcerated until their trial date, which can often be several months in the future. Kellough and Wortley (2002) note that being on remand eventually convinces even those who are highly motivated to go to trial to enter a guilty plea because they come to understand that it is more rational to negotiate an agreement with the Crown in exchange for their release than to wait for a trial. Second, some detainees consider remand to be “dead time” because pre-trial detention is not counted when considering parole eligibility and the judge is not legally obliged to take it into account when sentencing.³ In practice, however, judges systematically give a credit of one day for each day spent in pre-trial detention and may give a credit of 1.5 days per detention day when specific circumstances justify it. Before 2010, pre-trial detention was credited at two days for one, to compensate for the disadvantages of pre-trial detention (infringement of the presumption of innocence), but the Truth in Sentencing Act (2010) restricted this option.

From interviews with detainees, Vacheret and Brassard (2015: 142) noted that a detainee could be induced to plead guilty due to “moral fatigue, the pain of uncertainty, a feeling of losing his life, his time.” For many, getting out of custodial remand is a priority, whatever the price. Some accused also referred to the difficulty of obtaining a full and complete defence when they are detained, as under such conditions they are heavily dependent on their lawyer, with whom they generally have very little contact. They find themselves having to make “hasty unclear decisions while they struggle to understand the issues involved” (Vacheret and Brassard, 2015: 141). Interviews with defence counsel, conducted as part of the same research project (Vacheret et al., 2015), confirmed that the absence of a place to hold confidential meetings, communication difficulties, difficulties in transportation, or long waiting times severely complicate the preparation of a robust defence. These defence lawyers talked about pre-trial detention as “an instrument of pressure by the system” that affects the client first, but then inevitably rebounds onto defence counsel, encouraging them to find a quick solution in order to speed up the process (Vacheret et al., 2015: 120). The authors conclude that defence lawyers believe a guilty plea made by detainees “is not made freely, but results from mental fatigue, stress, or more or less rational calculation.”

To summarize, several authors have shown that being placed on custodial remand has significant coercive potential. Kellough and Wortley (2002) even go so far as to talk about structural coercion: “Structural coercion exists when a cost is imposed on anyone who tries to assert constitutionally guaranteed rights or, as Littrel (1979: 193) puts is, structural coercion exists when circumstances are ‘so arranged that individuals will “choose” officially predetermined options’” (Kellough and Wortley, 2002). Such structural coercion suggests that the system itself (represented in day-to-day activities by judicial actors) is responsible for creating coercion through custodial remand, which implies that all people on remand suffer some degree of pressure to plead guilty.

Current study

While these studies are interesting and point to a problem that should be investigated and corrected, they do not take into account the experience of those detainees who do not feel forced to plead guilty. Although statistics show that detainees are more likely to plead guilty than those released pending trial (Chen, 2013; Kellough and Wortley, 2002), a fair number of detainees still choose to exercise their right to a fair trial. Why does remand not seem to put the same pressure on some defendants? Do these detainees have something in common that enables them to resist the coercion exerted by custodial remand? These are the question that this article attempts to answer.

Conceptualization of duress / coercion

The issue of threat or coercion is more complex than it may seem a priori given the subjective dimension involved. Not only is an individual’s decision affected by various factors (personal or social), but the same situation may be perceived very differently by different individuals. As Brunk (1979) explains: “What is seen as coercive in one social or cultural context, or from one critical moral viewpoint, may be perceived in another as no imposition upon choice at all, and perhaps even as expanding social freedom”(p.538). Brunk (1979) argues that the way free and voluntary decisions are conceptualized should be revised. He suggests that decisions, like coercion, should be understood not as involving a dichotomy or discrete entities but rather as a continuum and distinguishes different levels of inducement that can influence a decision. The first is an offer that the person is free to accept or refuse: it does not limit freedom but simply helps them to achieve a goal. Brunk gives the example of a mother who offers her son $10 if he cleans his room. The money will influence his decision, but taking it does not require that he act against his will. Brunk calls the second level of inducement “soft” coercion and sees it as akin to manipulation: it appears to be a free choice, but it is actually heavily weighted. The person accepts the offer because they know that refusal will put them in a worse situation. Brunk gives the example of a mother who will not let her son play baseball unless he cleans his room. In this case, the child will clean his room even against his will because refusing to do so will make his situation less desirable. The third level of inducement, “hard” coercion, follows the same principle but involves offers that are more difficult to refuse so that the coercion is much stronger. The fourth level of inducement involves physical force. According to Brunk, the first level of inducement (a pure and simple offer) does not interfere with an individual’s freedom because there are no restrictions or limitations. In contrast, the second and third levels involve coercion, which limits the available options and to some extent prevents an individual from making his or her preferred choice. Thus both these levels involve a degree of coercion, even if they differ from coercion through force since the person still theoretically has a choice.

Brunk’s (1979) theory is used in this article to help understand the degree of coercion that being on remand exerts on the decision to plead guilty as revealed in interviews in which detainees were asked to explain how being on custodial remand had influenced or limited their choice. These interviews suggest that detainees have very different perceptions of the coercive effects of being on remand.

Methodology

As part of a broader research project on plea bargaining, we conducted semi-structured interviews with 23 convicted individuals recruited with the help of probation officers working in a community agency (8) and staff in a halfway house (7) and in a restorative justice centre (7). Our sample comprised 19 men and 4 women with an average age of 47 (range: 31 to 58 years old). Respondents had been charged and convicted of a variety of crimes: uttering threats, shoplifting, dangerous driving, second degree murder, drug production, and drug trafficking. Of the 23 interviewees, 22 had pleaded guilty to the charges against them, although 11 maintained that, despite their guilty plea, they were innocent of the crime with which they had been charged.⁴ While they had received various sentences, most involved imprisonment – from a few days to a life sentence.

The interviews were conducted between autumn 2012 and spring 2015 in the offices of the organizations that had helped us recruit the sample. The interview usually started with a general question on the global context of the person’s decision to plead guilty. The interview guide included an outline of themes to be explored – details of the case (facts, evidences), reasons for pleading guilty, judicial procedures involved, relationship with lawyer, interviewee’s opinion about the guilty plea – and questions related to these themes were brought up during the interview in connection with interviewee responses. Semi-structured interviews have the advantage of fostering spontaneity in interviewee answers and also promote the emergence of new discussion themes. According to Bernard (1988), the degree of freedom participants have in interviews is linked to the depth of the stories they provide. Moreover, this freedom enables the interviewer to adapt follow-up questions to the interview context and to answers already provided by the interviewee.

After transcription, the interviews were analysed thematically. The main and sub-themes of the interviews were identified and put into a hierarchy (Paillé and Mucchielli, 2012) in analytical memos. Of the people interviewed, 12 had been remanded in custody following their arrest.⁵ These 12 respondents comprise the sample used in this article. Table 1 gives their salient details.

Table 1.

Overview of the accused

Name	Gender	Age	Crime	Time in pre-trial detention	Pleaded guilty?	Sentence
Pierre	Male	53	Gangsterism	9 months	Yes	13½ years of incarceration
Eric	Male	50	Theft, drug-related crimes	N/A	Yes	1 year of incarceration
Denis	Male	46	Theft, serious assaults	2 weeks	Yes	6 months of incarceration
Raymond	Male	34	Uttering threats, serious assaults	N/A	No	2 years of probation
Theresa	Female	53	Extortion, uttering threats, serious assaults	50 days	Yes	9 months of incarceration
Paul	Male	51	Robbery	N/A	Yes	2 years of incarceration
Louis	Male	58	Second degree murder	N/A	Yes	Life sentence
Charles	Male	48	Drug trafficking	N/A	Yes	2 years less a day of incarceration
Martin	Male	33	Theft, serious assaults	N/A	Yes	90 days of incarceration
Mathieu	Male	32	Dangerous driving	63 days	Yes	45 days of incarceration
Virginie	Female	54	Drug trafficking (aiding and abetting)	1 month	Yes	2 years of conditional sentence
Damien	Male	46	Serious assaults causing bodily harm	7 months	Yes	7 months of incarceration + 2 years of probation

Interviews were also conducted with 12 defence counsels about their procedures when dealing with plea bargaining, with particular attention given to the elements that influence such negotiations. The analysis of these interviews has already been published (Euvrard and Leclerc, 2015) but some of the remand-related elements are included here to complete the main findings. The lawyers interviewed all worked in the same court in Montreal and had either a public (5) or a private (7) practice. Interviews dealt with their experiences and views on plea bargaining (see Euvrard [2014] for details about the sample).

Results

In the literature, many authors (Bibas, 2004; Bowers, 2008; McCoy, 2005) support a thesis of coercion in which being in pre-trial detention exerts pressure on the accused, who then feels forced to plead guilty. Although some of our interviews confirm this thesis, others suggest that the thesis should be more nuanced and perhaps, for some detainees, even abandoned. In order to analyse these findings, detainees were divided into three groups, depending on the level of coercion they experienced or perceived as a consequence of being held on custodial remand. The first group clearly felt that custody had a coercive effect (that is, it acted as “hard” coercion – Brunk’s (1979) third level). The second group perceived remand as more of an inducement (“soft” coercion, Brunk’s second level), while the third felt that remand had no coercive effect.

Coercive remand (hard coercion)

The first group of accused that emerged from our analysis confirms the thesis of coercion referred to in the literature. The five accused in this group explained that they pleaded guilty because they were in pre-trial detention and wanted to get out of that situation as quickly as possible.

“I wanted to get out. I have two beautiful little boys. I am a family man.” (Eric)

“I pleaded guilty to something I did not do to get out. If you plead guilty, you get out immediately. Well, I wanted to get out! I was fed up, I wanted to get out!” (Martin)

These accused all explained that initially they had not wanted to plead guilty but found themselves in a situation that led them to plead guilty against their will. This category corresponds clearly to the third level on Brunk’s (1979) scale of Brunk.

Several excerpts from interviews with those in this group show that the difficult conditions experienced by remand prisoners (dead time without participation in programs, overcrowding, etc.) and the stress, anxiety, and uncertainty associated with remand led the accused to feel that they had no choice but to plead guilty in order to escape a difficult situation. The stress and anxiety caused by being on remand was often visible during the interviews.

“I'm a claustrophobic, I was locked up in [prison], the small barred door, I was like, oh my god, they’ll let me out; it's like a dream, it's like a dream.” (Virginie)

“You're sick about being in prison, you're in an overcrowded place. You get wound up. You can’t smoke. Violence, aggression. You're fed up. Then they show you a way out – plead guilty. You can leave. Yes, I want it.” (Martin)

In addition to the difficult conditions in detention, the time required for judicial procedures may also force someone on remand to plead guilty. The example of “dead time” referred to by Kellough and Wortley (2002) was raised by five of the accused, who explained that time spent in custody could be greater than the length of sentence they expected so they had a good incentive to plead guilty to avoid being unnecessarily incarcerated.

“He’s [his lawyer] a specialist in police prosecutions and he said: ‘I'd be happy to win this case, but are you willing to wait until September 2014 for your trial?’ Otherwise I wouldn’t have agreed [to plead guilty]… that's for sure.” (Mathieu)

“She [his lawyer] said, ‘If you're willing to pay a fine, the charges of armed assault, attempted murder, and robbery will be dropped. And if you plead guilty to dangerous driving and you pay a fine, they are willing to release you in two weeks from now. Otherwise, if you persist in pleading not guilty, you’ll go back in custody waiting for a trial date and you face four years in prison.’ So, what do you think I said?” (Eric)

“There's no-one who’ll do two years in prison if he can do a month by pleading guilty. Look, I don’t want to lose two years of my life. I'll take the blot on my record. Each time I want to get out faster. That's a life choice that I made so I’ll live with the consequences But it's sad that it works like that.” (Martin)

For these accused, procedural delays were so long that they preferred to plead guilty in order to be released, although this had not been their original intention. However, they made it clear that this decision had been made against their will, either because they were convinced of their innocence (Virginie, Martin, and Damien) or because they felt they had a good chance of being acquitted in a trial since they had a solid defence (Mathieu and Eric). Their decision to plead guilty was made against their will.

The profile of individual defendants in this group is quite varied. Some have never had any previous contact with the criminal justice system (Virginie and Mathieu) and did not cope well with being in custody due to stress and uncertainty (Virginie) or the length of procedures (Mathieu). Others, however, who had had previous experience of being in custodial remand (Martin, Damien, and Eric), felt that another criminal conviction would not adversely affect their already lengthy criminal record.

All of these defendants had different reactions to their decision to plead guilty. For some, the threat of remaining in custody was so great that they felt they had no choice (Virginie and Martin). Others, however, presented their decision to plead guilty as a rational and deliberate choice, the “least evil” of the two options – plead guilty or remain in custody – available to them (Mathieu, Damien, and Eric). But even if their decision to plead guilty seems to have been well considered, it was still made in a coercive context which, according to them, was related to being in custodial remand.

The defence lawyers interviewed generally shared the view that remand creates a coercive atmosphere for the accused. Some lawyers explained that they were showing compassion in these situations when they did not seek to encourage their clients to fight their case.

“Who am I am to judge … he's still the one who will serve time, the one who’s behind bars, not me … I can understand in some cases, especially when it drags on that they say to themselves, ‘hey, I'm fed up, I'm fed up with seeing my children through a glass screen.’” (Me. Simard)

However, the lawyer’s perception as well as his advice is important and has an impact on the accused’s decision. As we have seen in the literature (Vacheret et al., 2015) and in the interviews presented above, the accused are often forced to depend on their lawyers. As well, they often feel powerless in the face of the justice system and so follow the advice of their lawyer.

“Me, I simply said that I wanted to sort it out in the most logical way and I said that it was his job. I explained to him: ‘Look, I’m a mechanic, you bring me your car, I fix your car for you, I’ll find any problems, I know everything, I’ll handle it so you don’t need to know anything about it,’ and I told him it was the same thing here.” (Mathieu)

As the literature suggests, custodial remand may have the effect of encouraging accused individuals to plead guilty against their will. Such a situation not only raises questions about whether the accused has made a voluntary decision but also suggests that detention may lead a defendant to waive his right to be defended in court, a principle that is a fundamental to our justice system, as well as leading to a criminal record that might have been avoided. Conditions in detention or the length of legal procedures can cause stress that may lead the accused to agree to a guilty plea and such anxiety is often exacerbated for individuals charged for the first time. While the results discussed for individuals in this group support the thesis of coercion often referred to in the literature, they are not, however, representative of the point of view of all the detainees.

Incentive remand (soft coercion)

The three accused who fall into the second category that emerged from our analysis freely chose to plead guilty. However being in pre-trial detention induced them to accept an offer that they would not have agreed to had they been free pending a judicial decision. This corresponds to the second level of coercion on the Brunk (1979) scale – “soft” coercion – referred to as “inducement” in this article. The three accused in this group explained that being held in pre-trial detention was difficult and stressful, which lead them to agree to plead guilty more quickly than if they had been free awaiting trial. They wanted to avoid further uncertainty and “dead time” and felt that by pleading guilty more quickly they had obtained better conditions:

“When you have an end date, it's better than when you don’t and you live in uncertainty.” (Theresa)

“I found it painful to be there. By pleading guilty … it was another kind of detention.” (Louis)

These accused explained that, unlike the first group, they would have pleaded guilty even if they had not been detained. However, had they not been in detention, they would have asked their lawyers to negotiate more firmly and would have tried to get a better offer than the one they accepted. In this case the constraint was on the decision to accept the offer rather than the decision to plead guilty.

“It is certain that if I had been outside, I would not have pleaded guilty so quickly. Sometimes, if you're out, you can take two or three years, ok, then you're not there in court or you tell your lawyer not to attend or, you know, you can postpone it for a long time.” (Paul)

Defendants in this group had a fairly similar profile. Their detention was based on having a previous criminal record (Theresa and Charles) or the type of crime they were accused of (Louis, second degree murder). They had committed the crimes with which they were charged and other aspects of their case would have been detrimental to their defence in court: either the evidence was strong (Louis and Charles) or they had previous convictions for similar crimes (Theresa).

“They caught me with all the kit, I had the pot, I had the double agent who had made the deal, I had everything. I had everything there.” (Charles)

These accused pleaded guilty because they had little chance of winning in court given the facts of the case (strong evidence, criminal record). These elements, in addition to their being on pre-trial detention, limited their lawyers’ bargaining power: strong evidence, the accused’s criminal record, and the decision to place the accused in pre-trial detention favor the prosecution in negotiations with defence lawyers over plea bargaining (Euvrard and Leclerc, 2015). Prosecutors are less inclined to make concessions and defence lawyers have little room to negotiate. The accused are generally aware of this, but it is mainly defence lawyers who emphasized the effect that being in pre-trial detention can have on the quality of the deal they can obtain from the prosecution:

“If someone is detained, we are in a weaker negotiating position.” (Me. Beaudoin)

For the accused in the second group, coercion is more likely to affect the decision to accept an offer than the decision to plead guilty. If they had been free during this period, the accused in this category would still have agreed to plead guilty but their lawyers would have been in a stronger bargaining position and might have been able to obtain a better deal from the prosecutor.

Neutral custodial remand

The third category that emerged from our interviews concerns detainees who were able to withstand the pressure of being in detention. These four individuals correspond to the first level on the Brunk scale (1979): they felt they had been presented with a simple offer that they chose not to accept. Several different profiles were discernible in this category.

For some accused, pre-trial detention is not seen as a disadvantage because they believe they will be sentenced to imprisonment in any case and time spent in remand is not lost time since it will be deducted from their sentence.

“It will be put back 2 months or so, you plead guilty to two counts where you feel guilty, the two where you don’t feel guilty, we’ll put that off until later, in three months, but in the meantime you’ll stay in jail.” (Denis)

Others, such as Raymond, feel that, although pre-trial detention exerts a powerful incentive to plead guilty, they must resist in order to guarantee their right to a trial, which will allow them to contest the charges against them.

“At some point in January it was suggested I plead guilty for time served because I was in custody. I refused. I went to court. I was found guilty.” (Raymond)

Finally some accused, like Pierre and Paul, consider pre-trial detention to be an advantage or part of a negotiating strategy. It should be noted that in Canada until 2010 time spent in pre-trial detention was usually doubled once a sentence had been pronounced by a judge and time in detention was being deducted from the sentence to be served. This was done to compensate detainees for infringement of their right to the presumption of innocence and to correct the fact that time spent on custody does not count in calculating eligibility for parole. Some accused, who were at a high risk of receiving a prison sentence, were quick to plead not guilty in order to lengthen legal procedures that would allow them to benefit from this double credit. In such cases, pre-trial detention was used by the accused to their advantage and was clearly not an inducement to plead guilty.

“I asked my lawyer if I could try to drag it [detention] out since my time counted as double; it’s obvious that a double count was beneficial for me.” (Pierre)

The abolition of the practice of double counting by the Truth in Sentencing Act of 2010 has clearly limited the use of this strategy, as was confirmed by one defence lawyer:

“Since people were doing the 2 for 1 before, of course that was an advantage but now, no, … especially in the current detention conditions” (Me Bouchard)

However, some accused still use pre-trial detention as a negotiating strategy and attempt to lengthen the time required for legal procedures. Since most prosecutors feel they are in a superior negotiating position if the accused is in detention, the fact that a defendant is in no hurry to resolve his/her case, or even deliberately slows down the procedure, can be disconcerting and may enable a defence lawyer to obtain a more attractive offer.

“You have to let the Crown believe that you’re going there, that you’re going to trial. If you say, I'm going to plead guilty; you won’t get a good sentence. If you say that right away, you won’t get it… they must be scared to work [trial].” (Me. Lachance)

While most lawyers feel their negotiating position is weaker when their client is in detention, some still continue to attempt to obtain a better deal from prosecutors, particularly if they feel the accused can present a defence, and encourage clients to resist pressure.

“When they’re in [pretrial detention], detention conditions are not great … That can mean that they’re keen to settle their case but I think it is our role to say to them, “Look, this is a bad time to get through but it's for your own good … In the worst case, you'll be in custody a week, two weeks, but … when you get to court, you have a chance to walk away without a criminal record, whereas if you plead guilty right away …'” (Me. Thériault)

Many of these defendants know the usual sentence for the crimes they are accused of and are therefore able to evaluate an offer made by the prosecutor without having to rely solely on their legal counsel. They have some knowledge of the system, either because of their profession or their previous experience and take responsibility for their defence by examining the accusation or by giving clear instructions to their lawyers. Some, like Pierre and Paul for example, even check with other lawyers in order to better assess their situation. Unlike the accused in the first group, they are not dependent on their lawyer.

“But then I was a financial planner so I knew a little about the matter without being a lawyer.” (Raymond)

“When we got the evidence, I read it, I looked at the evidence … I instructed my lawyer to negotiate for me … we looked at the sentences for people who were arrested in similar cases and we based it on that. I thought thirteen and a half years was too much.” (Pierre)

“There are possibilities to meet with other lawyers [so you can] check the accuracy of what is said.” (Pierre)

A common element among the accused in this category is past experience with the justice system. Unlike the accused in the first category, these detainees had often been arrested and sentenced previously; they explained that they were familiar with the functioning of the judiciary and knew how to cope with the pressure. They had also spent time in custody (pre-trial or regular detention). For them, being on remand was clearly not coercive and did not constitute an incentive to plead guilty. On the contrary, they were able to withstand any pressure it might exert and turn the situation to their advantage. Several explained that they had observed, as a consequence of their experiences in the criminal justice system, that they could get better sentences by remaining patient:

“At first, they offer you 7 years and then you’re on remand, you wait a long time, you wait for the right timing with the good judge, then you can get off with a two-year sentence.” (Paul)

For this group of defendants, pre-trial detention is non-coercive because they are able to withstand the pressure.

Discussion and conclusion

Brunk’s (1979) typology makes it possible to qualify the notion of coercion as it affects decisions made in detention. Our interviews revealed that there is a diversity of profiles and perceptions among detainees. While some accused feel that pre-trial detention has no influence on the outcome of their case, others feel that it forced them to plead guilty against their will or that it encouraged them to plead guilty more quickly and thus to accept a less attractive offer. While the reality of “dead time” has been suggested by some authors (e.g. Kellough and Wortley, 2002), it had not been clearly demonstrated previously that it could incite the innocent to plead guilty. Given this finding, it is important that courts give priority to cases where a defendant faces “dead time.” As well, interviews with both lawyers and the accused revealed that lawyers differ in their reactions to an accused who wishes to plead guilty to avoid “dead time.” While some accept and respect this decision, others stress the importance of going to trial and the consequences that may result from a guilty plea (a criminal record, for example). Defence lawyers have an important role to play in dealing with this situation, but it appears that not all of them understand the importance of examining the effects of plea bargaining.

The results arising from interviews with detainees in the second category are instructive because they show that being in custody affects not only the decision to plead guilty but may also act on the decision to accept an offer – a much less documented situation. The results are also interesting because they help explain why people who are in custodial remand receive harsher sentences:⁶ interviews with the accused and with defence lawyers show that being in custody not only reduces bargaining power by limiting the strategies available (for example, stretching out the time required for legal procedures or demonstrating that the person has made efforts to change) but also reduces the need for the prosecutor to offer concessions because the accused is anxious for release from difficult detention conditions and therefore willing to accept an earlier offer. Although in this case detention does not force the accused to plead guilty against their will, it has a coercive potential because it forces them to accept an offer they do not consider ideal. However, the decision to plead guilty is seen as a rational choice by defendants in this group, which supports Feeley’s (1979) argument that for most defendants pleading guilty can be seen as an easy decision, as a simple cost and benefit analysis leads them to realize that the cost of going to trial (pre-trial detention) is greater than the benefit of the outcome. Feeley therefore concludes that “the process is the punishment.” Pre-trial detention is inconvenient for defendants and creates costs that affect the decision to plead guilty.

Finally, looking at detainees in the third group suggests that when accused are able to manage the stress and uncertainty of being on remand and are able to evaluate the quality of the offer they receive, pre-trial detention exerts no pressure. Even if these accused pleaded guilty, they did not feel coerced to do so. They not only decided to plead guilty but also decided when to do so and in exchange for what offer. However, these detainees were in a special position: they knew the system, had financial and legal resources that enabled them to wait for the best deal possible offer, and risked a prison sentence that would probably be longer than the time they would spend in detention.

Other implications also arise from this study. First, it appears that courts are using pre-trial detention more often, often without clear justification. As early as 1979, Goldkamp and Gottfredson (1979) noted that many bail decisions were unjustified and suggested that guidelines be used. Almost 40 years later, this problem has not been corrected. Second, in a context where judicial procedures are often slow and accused are increasingly likely to be remanded in custody for minor offenses that do not usually lead to a prison sentence (Porter and Calverley, 2011), we should be concerned about the possibility that they will suffer “dead time.” Identifying the profiles and situations of accused who are likely to plead guilty despite maintaining that they are innocent would make it possible to deal with such cases more quickly to avoid the coercive effect of detention. Such cases, even if they are a minority, are important because they challenge the foundations of the justice system, such as the right to a fair trial, the presumption of innocence, and the right to a free and voluntary decision regarding the plea entered.

To achieve these goals, it is necessary to restructure the plea bargaining system, or at least ensure that accused know what sentence they are likely to receive in a trial so that being on remand does not become an important factor in sentencing. For example, knowledge of the system allowed defendants in our third group to better withstand the pressure of being on pre-trial detention and Newman (1956) shows that previous experience with the justice system allowed some defendants not only to learn about judge and prosecutors’ reputations but also to develop some knowledge about the judicial system, which enabled them to recognize a good deal when they saw one.

Finally, our results show that the way the system is used can lead to coercion (procedural delays, frequent use of remand, overworked or under-involved lawyers). Kellough and Wortley (2002) suggest that it is the behaviour of the actors who represent the judicial system that creates coercion. In contrast, Brunk (1979) believes that institutional coercion stems from the way in which the system is set up. It is not remand itself that creates coercion – we have seen that some accused were able to cope with it – but rather how it is used, the context in which it is used, and its widespread use that are the sources of coercion. The origin of coercion is more structural than institutional since it stems from the practices of legal professionals (lawyers, police, and judges) and it is therefore at this level that intervention would be most appropriate.

While the focus in this article has been mainly on the coercive aspects of pre-trial detention, the accused we interviewed not only described different stress levels related to detention but also mentioned several other factors that had affected their guilty plea, such as the length or cost of proceedings, pressure from lawyers or a lack of confidence in their lawyer, and a dearth of information about the judicial procedures or their rights, which they felt impeded their making a free and informed decision. All of these elements have been analysed using the same theoretical framework in order to understand the way defendants interpret the rational or coercive elements of their decision-making process (Leclerc and Euvrard, 2016).

Footnotes

Funding

This work was supported by a grant from the Social Sciences and Humanities Research Council of Canada (SSHRC).

Notes

Elsa Euvrard is a PhD Candidate at the School of Criminology, University of Montreal. Her research focuses on criminal justice policies and practices.

Chloe Leclerc is an Assistant Professor at the School of Criminology, University of Montreal. Her research focuses on sentencing processes and the public opinion.

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