The Disappearing Trial E. Over-charging, over-criminalisation and over-incarceration 36. Plea bargaining in the US demonstrates the ways in which trial waiver systems, if insufficiently regulated, can undermine rights protection and drive growth in the criminal justice system that may work against many of the reasons for its adoption; i.e. efficiency and reduction of excessive use of detention both pre-trial and in sentencing. Due to the impact of the US as a model and sponsor for trial waiver systems worldwide, its experience with plea bargaining – both positive and negative – is of relevance to countries around the globe considering the adoption of similar practices. 37.  Despite the perception that trial waiver systems promote efficiency in the criminal justice system, their use can have a net-widening effect. By permitting prosecutors and courts to process cases rapidly and even en masse, systems may respond to the advent of trial waivers not by reducing backlogs and court dockets, but by prosecuting more cases. There is some evidence from the US that the explosion in prison population in recent decades is not in fact due to longer sentences being administered, but primarily due to decisions by prosecutors to charge more crimes as felonies,56 leading to a higher number of plea deals and a higher overall conviction rate. For this reason, plea bargaining could be operating as a driver of overcharging and the resulting mass incarceration and mass criminalisation of Americans, one in three of whom is estimated to have been arrested by age 23,57 and more than 2 million of whom are behind bars.58 38. In the US, the relationship between long “mandatory minimum” sentences and plea bargaining has been well-documented. By way of example, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.59 In one typical case exemplifying the risks to defendants of not pleading guilty to drugs charges in the US federal system, Sandra Avery was arrested and charged with possession of 50 grams of crack cocaine with intent to deliver, an offence then carrying a mandatory minimum sentence of 10 years. Refusing a plea deal that offered no less than 10 years, she was convicted at trial and sentenced to life in prison (there is no parole in the federal system).60 39. Prosecutors have been open about the use of harsh sentencing regimes to win plea bargains. When thenUS Attorney General Eric Holder in 2014 supported legislation relaxing mandatory minimum sentences, prosecutors responded with a letter to Mr Holder that stated in part that “mandatory minimum sentences are a critical tool in persuading defendants to cooperate.”61 In a later letter to the US Sentencing Council opposing retroactivity of a more relaxed sentencing regime, the same prosecutors argued that “allowing an individual sentenced under a plea agreement to have his sentence reduced retroactively prevents the government from obtaining benefits gained through concessions during bargaining.” In this scenario, plea bargaining becomes the raison d’etre of the sentencing regime – the “tail wagging the dog” in the words of one of the participants at the Washington roundtable. 40. Where prosecutors have this kind of power to induce plea deals due to long sentences, there may be less filtering of worthy cases at the outset, since the vast majority of defendants will plead guilty regardless of the strength of the evidence against them, simply to avoid the severe trial penalty. In the US system it is a key role of the prosecutor to use their discretion to filter out weak or otherwise unworthy cases. Participants at the Washington roundtable also pointed to the failure of the federal grand jury system in the US to effectively filter out weak cases, meaning that at no point in most criminal proceedings are weak or unworthy cases being effectively diverted from the system. Without the procedural rigours of trial, cases that would otherwise have been dropped for want of prosecution are instead able to proceed to conviction. Indeed, the percentage of dismissed cases was substantially higher in earlier years, before harsher sentences increased the percentage of felony cases resolved by plea deals three times over, which may suggest that there is a relationship between increased use of plea bargaining and decreased filtering of cases.62 56. Pfaff, J. F., “‘The Causes of Growth in Prison Admissions and Populations”’, Fordham Law Review , (2012). Available at: http://web.law.columbia.edu/sites/default/ files/microsites/criminal-law-roundtable-2012/files/Pfaff_New_Admissions_to_Prison.pdf. 57. Friedman, M., “Just Facts: As Many Americans Have Criminal Records as Have College Diplomas”, Brennan Center for Justice (Nov. 17 2015). Available at: https:// www.brennancenter.org/blog/just-facts-many-americans-have-criminal-records-college-diplomas. 58. “Americans With Criminal Records”, The Sentencing Project. Available at: http://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-CriminalRecords-Poverty-and-Opportunity-Profile.pdf. 59. Rakoff, “Why Innocent People Plead Guilty”, supra at n. 3. See also Fellner, “An Offer You Can’t Refuse”, supra at n. 34. 60. Fellner, “An Offer You Can’t Refuse”, supra at n. 34. 61. Statements by US Attorneys Regarding Mandatory Minimum Sentences, Jan 24, 2014. Available at: http://www.naaUS.org/site/index.php/resources/misc/77-aUSson-mandatory-minimums/file 62. Oppel, “Sentencing Shift Gives New Leverage to Prosecutors”, supra at n. 4. 17.