Wednesday, July 23, 2008

The Role of Plea Bargaining in International Crimes Prosecutions

There has been much talk during the last week about the arrest of Radovan Karadzic in Serbia, the request by the ICC for an arrest warrant for Sudan's president, and the start of the first American war crimes trial since WWII. See here, here, here, and here. For the purposes of this blog, I thought we should ask the following - What role does plea bargaining play in international crimes prosecutions?

To that end, I found an interesting article by Nancy A. Combs, entitled "Procuring Guilty Pleas for International Crimes: The Limited Influence of Sentence Discounts," 59 Vand. L. Rev. 69 (2006). Here is the article's conclusion.

The relatively straightforward relationship between sentencing discounts and guilty pleas just described does not exist in the context of international crimes. Although some international defendants rely on sentence-based calculations when deciding whether or not to plead guilty, for a substantial proportion of international defendants currently in the dock, sentence inducements have only limited persuasive value. The reasons for their lack of influence vary with the circumstances. High-level ICTR defendants, for instance, are so convinced of their innocence, so ideologically committed to their characterization of the Rwandan conflict, and so concerned about their place in the history books that virtually no sentence inducement will persuade them to plead guilty to genocide. Low-level Special Panels defendants, by contrast, are so ignorant about their legal rights and so culturally disposed to admitting wrongdoing and seeking reconciliation that, absent the constraining hand of counsel, no sentence inducement is needed to persuade them to plead guilty. Prosecutors who seek to procure guilty pleas from current or future defendants brought before the Special Court for Sierra Leone, the Extraordinary Chambers in Cambodia, or the International Criminal Court will no doubt be confronted with a different array of factors that will impact the influence of sentencing discounts over those defendants.

This discussion elides the question of whether prosecutors should be seeking guilty pleas for international crimes. There is no question that plea bargaining constitutes one of the most disreputable features of the American criminal justice system. American charge bargaining frequently distorts the historical record of proceedings, and any sort of plea bargaining can encourage prosecutors and defense attorneys to misrepresent facts and to bring frivolous motions to obtain a better plea. Moreover, as a result of the way in which most appointed counsel are compensated in the United States, plea bargaining gives rise to conflicts of interest whereby defense counsel have strong incentives to pressure their clients to plead guilty, regardless of whether it is in their best interests to do so. Many of these abuses also have the potential to wreak havoc in the international context, and the hue and cry that greeted the sentences imposed in certain ICTY guilty-plea cases suggest a similar level of public dissatisfaction with plea bargaining in that realm.

The desirability of plea bargaining in the international realm is not a topic that can be addressed here. Whatever its desirability, what can be observed is that in a national criminal justice system, defendants who are not motivated by sentence discounts would spell the end of efforts to secure guilty pleas because sentence discounts are the only real inducement that national prosecutors have to offer. International prosecutors, however, have at their disposal additional incentives. For some international defendants, the location of detention can matter more than the length of detention. Likewise, where there is more than one criminal justice system available to prosecute the defendant, the question of which one takes the honors can be of key significance. Bargaining over these issues may be more easily conducted outside the public glare, thereby benefiting prosecutors accustomed to public rebuke for their lenient sentence recommendations in guilty-plea cases but creating an additional worry for those already uneasy about plea bargaining. Whether the offer of such inducements will or should be the next frontier in international plea bargaining cannot yet be known. What is currently clear, however, is that international prosecutors who wish to procure guilty pleas must be more flexible and more creative in their efforts if they are to counterbalance the many factors that can deter international defendants from pleading guilty.

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