25. Some examples of good practice and safeguards for juveniles in the context of plea bargaining can, however, be identified in certain (though certainly not all) jurisdictions within the US. These include: (a) mandatory representation; (b) special training for juvenile defenders;24 and (c) more extensive enquiry25 (in the US, called a colloquy or allocution) between the judge and the defendant, using age-appropriate language to ensure that the defendant has full knowledge of the consequences of his or her decision to plead guilty,26 and limitations on the timing of guilty pleas (for example, refusing to accept plea offers at arraignment/charging) or the kind of cases in which plea deals can apply (for example, only to those facing the possibility of incarceration). 26. There are also similar concerns about the use of plea bargaining in cases involving adult defendants with psycho-social or intellectual disabilities, because their competency to waive their rights and enter into a plea deal may be questionable.27 People with such disabilities are more likely to falsely plead guilty than those without.28 27. There is widespread concern about racial discrimination in the US criminal justice system, including in relation to plea bargaining. For example, research has found that prosecutors are more likely to offer Black and Latino defendants plea deals in misdemeanour drug cases that feature jail or prison time, as opposed to white defendants who are more frequently offered a plea deal involving a non-custodial sentence in such cases.29 C. Innocence and miscarriages of justice 28. The phenomenon of innocent people pleading guilty has been most extensively documented in the US,30 where, for example, 65 out of the 149 exonerations in 2015 followed guilty pleas (44%).31 Furthermore, many examples of innocent people pleading guilty will never result in exoneration, particularly in misdemeanour and low level felony cases for which “there is no cheap, reliable test for guilt or innocence” and exoneration is therefore rarely achieved.32 As a core underlying goal of criminal procedure is to convict the guilty and acquit the innocence, this is clearly a major cause for concern and points to the need for better safeguards. 29. It has been suggested that the coercive element of plea bargaining is strongest where there is a disproportionately high perceived benefit to pleading guilty, usually in the form of a high sentence differential between those pleading guilty and those proceeding to trial, as in the case of Brady v US,33 which involved the threat of the death penalty. In the US, where sentencing discounts are not capped, this differential is referred to as the “trial penalty,” and it is particularly severe in the context of the relatively long “mandatory minimum” sentences which result from many convictions. Analysis of the trial penalty varies widely according to different models, but typical drug defendants for example face an average sentence three times higher following conviction after trial than they do following a plea deal.34 24. See Hertz, R. et al., “Trial Manual for Defense Attorneys in Juvenile Delinquency Cases”, American Bar Association (2016), pp. 400–410 (outlining the best practices for advising the client on the plea as well as preparing the client for the in court plea colloquy). See also Smith, A., “‘I Ain’t Takin’ No Plea’: The Challenges in Counseling Young People Facing Serious Time”, Rutgers L. Rev., Vol. 60, No. 1 (2007). See also Alschuler, A. W., “The Defense Attorney’s Role in Plea Bargaining”, Yale Law Journal, Vol. 84, No. 6 (May 1975). 25. Shepherd, R. E. Jr., “Plea Bargaining in Juvenile Court”, Criminal Justice, Vol. 23, No. 3 (Fall 2008). 26. Redlich, A. D. and Bonventre, C. L., “Content and Comprehensibility of Juvenile and Adult Tender-of-Plea Forms: Implications for Knowing, Intelligent, and Voluntary Guilty Pleas”, Law and Human Behavior Journal, Vol. 39, No. 2 (2015), p. 164, which states that ‘regarding the abilities of juvenile defendants specifically, developmental theory and previous research findings lead to the prediction that minors will be significantly less likely to understand the plea process compared to adults.’ 27. Redlich, A. D. et al., “Self-Reported False Confessions and False Guilty Pleas among Offenders with Mental Illness”, Law and Human Behavior Journal, Vol. 34(1) (2010). See also Gross, S. R. et al., “Exonerations in the United States, 1989 Through 2003”, Journal of Criminal Law and Criminology, Vol. 95(2) (2005), pp. 523–560. 28. Bonnie, R. J., “The Competence of Criminal Defendants with Mental Retardation to Participate in their Own Defense”, Journal of Criminal law and Criminology, Vol. 81, Iss. 3 (Fall 1990), pp. 439–440. 29. Kutateladze, B., Tymas, W. and Crowley, M., “Race and Prosecution in Manhattan”, Research Summary, Vera Institute of Justice (Jul. 2014). Available at: http://archive. vera.org/sites/default/files/resources/downloads/race-and-prosecution-manhattan-research-summary-v2.pdf. 30. For some prominent cases of exonerations following guilty pleas, see: http://www.innocenceproject.org/when-the-innocent-plead-guilty/, and companion site http://guiltypleaproblem.org/. 31. The National Registry of Exonerations: Exonerations in 2015, available at: https://www.law.umich.edu/SPECIAL/EXONERATION/DOCUMENTS/EXONERATIONS_ IN_2015.PDF. The term used in the National Registry of Exonerations is “guilty plea”, so it is not possible to know whether these involved plea bargaining as such. As the Registry Report for 2015 explains, a large percentage of these exonerations are in relation to drug possession, due to a committed Conviction Integrity Unit in Harris County, Texas which was single-handedly responsible for 73 drug crime exonerations in 2014 and 2015, for convictions in which defendants pleaded guilty on the basis of unreliable roadside drug tests. 32. Ibid, p. 11. 33. Brady v. US, supra at n. 6. See https://www.oyez.org/cases/1969/270 for more details. 34. Human Rights Watch analysis of the U.S. Sentencing Commission’s FY 2012 individual datafiles, found in Fellner, J., “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty”, Human Rights Watch (Dec. 5 2013). Available at: https://www.hrw.org/report/2013/12/05/offer-you-cantrefuse/how-us-federal-prosecutors-force-drug-defendants-plead. 12.