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The International Network to Promote Rule of Law (INPROL) recently released a research memorandum on plea bargaining in post-conflict countries. It’s a very thorough report and it was hard to pick and choose which excerpts to highlight! The report contains information on best practices and lessons learned introducing legislation on plea bargaining, monitoring implementation of the law, advantages and disadvantages to plea bargaining, and the legislative drafting process. The full report also contains interesting case studies from Serbia, Bosnia-Herzegovina, and Nigeria. View excerpts from the memorandum below or click here to read the full report!
In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help address other serious human rights abuses resulting from a poorly functioning criminal justice system. However, in countries that have not previously used plea bargains, this kind of reform is a serious change in the legal system and should be carefully considered in the overall context of the existing criminal justice system.
Advantages of Plea Bargaining
Because of the way plea bargaining works and how interconnected it is to the rest of the criminal justice system, it is better if the question of whether to adopt plea bargaining is considered not in isolation but as part of the other proposed or already adopted changes to the criminal justice system. There are generally three major advantages to plea bargaining: it can ease docket overcrowding and case backlogs; it is a useful tool for complex prosecutions; and it allows for more creative, individualized, and possibly noncustodial sentences.
Overcrowded Dockets and Case Backlogs
Plea bargaining can decrease the need for countless court appearances, hearings, and the days spent in trial. Greater efficiency not only saves resources, but can contribute to increased access to justice and greater public trust in the legal system.
Tools for Complex Prosecutions
Plea bargains can be a useful tool in fighting complex crimes – like corruption and organized crime – that so often paralyze post-conflict legal systems. Organized crime and corruption cases can be difficult to prosecute as many layers of lower-level players often shield ringleaders. Where the law allows, plea bargains can be one of the most effective ways to encourage a lower-level player to testify.
Creative, Noncustodial, and Individualized Sentences
The third reason for introducing plea bargaining is one that is rarely discussed but is perhaps its greatest value: it may provide greater flexibility in sentencing, allowing the prosecution and defense to construct more individualized sentences through the informal negotiation process.
Plea Bargaining in Civil Law Systems
While increasing flexibility in sentencing has clear benefits, it may be a poor fit in some legal cultures. Some legal systems, including many civil law systems, place a high value on treating defendants consistently. These systems may intentionally allow less variation and actively discourage individualized sentencing. Where this is true, it is likely that advocating plea bargaining on the grounds that it will allow for creativity in sentencing, or a more holistic approach to punishment, will be viewed with great suspicion by legal professionals.
Disadvantages of Plea Bargaining
Plea bargaining cannot be separated from the legal and political system into which it is introduced and the informal, unregulated nature of plea negotiation makes the practice vulnerable to abuse in the context of weaker legal systems. Countries facing larger governance and rule of law deficits like widespread corruption, poor respect for human rights, or lack of independence in the judiciary may find that plea bargaining reflects, and in some cases amplifies these problems.
Experience in other countries has identified several specific unintended consequences resulting from adopting plea bargaining, including disparate sentencing; penalizing defendants who go to trial; violations of defendants’ rights; encouraging coercion of confessions; contributing to a negative public perception of the legal system; plea bargaining’s failure to focus on truth- telling; possible failures to implement the new process; and how plea bargaining may work alongside informal justice processes.
For plea bargaining to function, prosecutors need to have the discretion to decide when to offer plea bargains and what the offer should include. This can lead to different legal outcomes for otherwise similarly situated defendants. Discrepancies in sentencing can give rise to perceptions of an unfair or unjust legal system. This is especially problematic in post-conflict countries where divisions between groups are deep and tensions among them are high. Where disparate sentencing is a concern, legislation can reduce prosecutorial discretion by limiting the amount that sentences may be reduced, or limiting plea bargaining to sentence bargaining alone, rather than allowing prosecutors to negotiate charges.
Violations of Defendants’ Rights
Post-conflict countries can find it challenging to guarantee basic trial rights to criminal defendants. Countries introducing plea bargaining risk further entrenching currently existing bad practices unless the introduction is done with a full understanding of the most commonly violated defendants’ rights and with a realistic plan and procedures in place to ensure those rights are not further violated through the plea bargaining process. Recognizing this, most plea bargaining legislation contains some protections for defendants’ rights – most commonly requiring judges to ensure that defendants understand and voluntarily agreed to the plea.
However, for a variety of reasons from unfamiliarity with the law to political interference, judges and prosecutors may not carefully observe these protections. For this reason, it is important that defendants are represented by a lawyer in the plea bargaining process. Protections should be included in legislation and resources should be put into place to guarantee the right to a lawyer and that the lawyer has a meaningful role in the plea bargaining process.
Encouraging Coerced or False Confessions
There is also the concern that plea bargaining could encourage continued routine coercion of confessions. Many post-conflict legal systems rely heavily on confessions by the defendant as evidence in a criminal trial and plea bargaining could reinforce to a skeptical public the idea that the government continues to routinely violate basic rights. Even where coercion is not a concern, plea bargaining offers an incentive for defendants to admit guilt regardless of whether they committed the crime charged.
Public Perceptions of Plea Bargaining
Plea bargaining itself can also contribute to a public perception that the legal system is corrupt and that powerful people are not bound by the law. Plea bargaining is most often an informal negotiation behind closed doors and with little transparency. From the outside, this process can look like the same informal, extralegal practices commonplace in countries that are highly corrupt. The risk is particularly high where pleas are first introduced in high profile cases, such as corruption cases, and where defendants agree to pay fines in return for drastically reduced jail time or charges, or dismissal of the case altogether.
Disadvantages to Plea Bargaining in Civil Law Countries
Criminal trials in civil law countries are often viewed as a truth-telling process. Plea bargaining may not fit well in a legal culture that looks to formal trial processes to determine the truth of the events underlying a criminal case because it rarely contributes to a deeper understanding of the “truth” of the events of the crime itself.
Plea bargaining’s shortened process may also be a problem for countries emerging from conflict. For many post-conflict countries establishing the truth about past crimes through the justice system is an important part of reconciliation. Using plea bargains in international and domestic courts trying serious conflict-related crimes may mean the justice system fails to fulfill this important role, which may delay or impede larger goals for societal reconciliation.
Failure to Implement
Efforts to reconstruct or reform legal systems following conflict often include passing a number of new laws, many of which will be only partially implemented, if they are implemented at all. Failure to implement laws can happen for a variety of reasons. Two common reasons are a lack of support for the law among those who will need to implement it, such as legal professionals, and passing the law without providing for the necessary resources for implementation, such as salaries for new personnel. For new plea bargaining laws this problem frequently takes the form of insufficient access to defense lawyers. If large numbers of defendants are unrepresented in criminal cases due to a shortage of defense lawyers, or a lack of funding to pay for their services, this can prevent plea bargains from being widely used.
Plea Bargaining Requires a Change in Legal Culture
Failing to build support for plea bargaining laws prior to implementation can also create serious problems. In countries with no previous experience negotiating criminal cases, plea bargaining requires an important change in legal culture and the roles judges, prosecutors and lawyers play. For plea bargaining to work, individual professionals within the system need to be ready and willing to change how they do their jobs. Otherwise, the new laws will be ignored, or partially implemented in a way that allows professionals to avoid major changes to their roles.
It is far more likely that legal professionals will make these changes if they had knowledge of and supported plea bargaining reforms before they become law. It is also important to recognize that implementation cannot be divorced from the larger political environment. If powerful political actors have an interest in maintaining a weak judiciary or defense bar, or where roles are deeply ingrained, involving stakeholders in training and debate may have little effect in improving implementation of plea bargaining.
Drafting Plea Bargaining Legislation
Assessment on Public Attitudes, Goals of Key Stakeholders, and Common Cases in Criminal Justice System
It is important to assess public attitudes towards the legal system to avoid adopting a version of plea bargaining which will reinforce existing public mistrust of the formal legal system. The assessment should examine why plea bargaining is being proposed and if plea bargaining will help to achieve the intended goals. Often the first and only reason offered for plea bargaining is to reduce case backlogs. This reason is sometimes given without a thorough assessment of the cause of the case backlogs.
One simple way to assess public attitudes may be to assess how the media reports on the criminal justice system. If the media focuses on stories of corruption it is likely this is having an impact and that the general public may view the criminal justice system as corrupt. If the country has an active civil society, it may also help to survey or meet with NGOs to assess their opinions of the criminal justice system.
The assessment should also try to determine if key stakeholders [prosecutors, defense lawyers, NGOs] have other goals. Understanding these various goals is important in understanding what type of plea bargaining legislation to consider and whether plea bargaining will help the justice system achieve the desired outcomes.
The assessment should next strive to gather data about the number of cases going through the criminal justice system including the categories of offenses. A key question in drafting plea bargaining legislation is whether plea bargaining will be limited to only certain kinds of offenses or available more widely. Before deciding which cases should be eligible for plea bargaining it is important to know what kinds of cases constitute the largest percentage of cases going through the criminal justice system. Gathering data before plea bargaining is adopted is also important as collecting this kind of data gives a baseline for comparison. Without baseline data it is difficult to accurately monitor or evaluate the impact of a new plea bargaining law.
Involve Stakeholders in Discussions before Drafting Legislation
Drafting new legislation is usually the first stage of adopting plea bargaining or abbreviated trials. Legislative drafting should ideally involve bringing key stakeholders including defense lawyers, NGOs, judges, and prosecutors an opportunity to discuss the advantages and disadvantages of introducing plea bargaining. Then legislation that is more likely to be implemented as the new process has not been “forced” on the legal system but instead has been more carefully drafted to reflect the legal culture and stakeholder goals.
To read about specific provisions in plea bargaining legislation, go to page 23. You can find information on:
Publicizing Plea Bargaining Legislation
After a country passes new plea bargaining legislation for the new law should be published so that legal professionals including judges, prosecutors, and defense lawyers have easy access to the complete text. In some countries this can be done electronically. In other countries, hard copies of the new law should be distributed. If there are newspapers, including legal newspapers, the text of the new law should be published in the newspaper. This should be done before the new law enters into force.
In addition, before the new law enters into force, a public information campaign should publicize plea bargaining to the general public. The public information campaign should at a minimum explain what plea bargaining is and the rules are surrounding its use. This can help to reduce or avoid problems of widespread public distrust of plea bargaining. The process of publicizing the new law should include a wide variety of media outlets including radio, television, print media, and social media. Often the best way to explain a new law is with individual stories. Depending on the country, this could mean giving examples of defendants who have languished for years in pre-trial detention for minor offenses and how plea bargaining can address these kinds of human rights violations.
Efforts to publicize the new law should address current public attitudes towards the formal justice system and try to address any expected negative reactions to plea bargaining.
Oftentimes post-conflict countries, because of financial or human resource issues, cannot conduct comprehensive monitoring and do not collect good data about the functioning of their court systems. If this is the situation, rule of law development assistance providers should focus on creating monitoring programs, assuming that conditions are stable and the monitors will not be put in harm’s way or targeted.
Court monitoring projects on plea bargaining have collected information on how frequently plea bargaining is used; the original charges filed and the resulting charges and sentence; whether and what non-custodial alternative sentences are used; how long it takes for a case to be resolved through plea bargaining; and whether plea agreements are used to gain witness cooperation. Information gathered should also make note of the jurisdiction of each case, to allow evaluators to compare implementation across jurisdictions and consistency in sentencing.
It is important that court monitors are familiar with the vulnerabilities of the relevant plea bargaining laws and the legal system, and carefully monitor plea deals for all potential human rights violations. Identifying negative public reactions early, and taking steps to counter them either by offering more information on the plea process, or by altering practice or the law itself can help minimize further damage to trust in the legal system.
Training Judges and Lawyers on Additional Skills
Any time a law is passed that introduces a fundamental change in the legal process there will need to be training to be sure legal professionals and judges are aware of the change and to help them to learn whatever additional skills they might need to adapt to the change. However, training alone will not dislodge strongly held cultural biases against changing practices or adopting practices that contradict other values.
Rule of law assistance providers should invest the time and resources into a training program only after a full assessment concludes that there is value in conducting the training. Rule of law assistance providers should also give careful consideration to the issue of who will conduct the training. If the goal is to achieve local “buy-in” to the new law, the majority of the trainers need to be from the country in question and should be trainers the audience will take seriously.