Assistant Professor of Law, Appalachian School of Law. Thank you to Professor Catherine Hancock for her substantive comments and suggestions. Thank you to Professor David S. Bogen, Ethan Burger, Professor Judie Barger, Professor Charlie Condon, Professor Jenia Iontcheva Turner, Susan Campbell, Margaret Alkon, Jon Marshall, and Vasily Vashchanka for giving valuable feedback to earlier drafts of this Article. Thank you also to Christopher Lehmann, Catherine Newcomb, and Mary Greer for generously offering their time to discuss plea bargaining developments and for their help in connecting the author with others working on plea bargaining issues internationally. Earlier drafts of this Article were presented at the Law and Society Annual Conference in 2007 in Berlin, the Dispute Resolution Works in Progress Conference at Marquette University School of Law in 2007, the New Scholar Workshop at the South Eastern Association of Law Schools Conference in 2008, and to the faculty at the Appalachian School of Law in 2008. Thank you to the participants at those conferences and events for their useful feedback. Thank you to research assistants Natalie Mihalek, Jennifer Milligan-Nickles, and Megan Thompson. Thank you also to the Appalachian School of Law for providing financial support toward the completion of this Article.
Countries struggling with overburdened criminal justice systems often decide to introduce U.S.-style plea bargaining as part of a larger process of criminal procedure reform. Plea bargaining, however, is not simply a Page 357 technical change in process. 1 Policymakers and rule of law assistance providers should consider the consequences of this new procedure beyond simple case processing. The introduction of plea bargaining requires legal professionals to adapt to a new way of doing their jobs. It potentially changes how defendants and victims view the system. It also carries the potential to change how the general public views the legal system. This can be of particular concern in countries struggling to establish the rule of law.
Plea bargaining requires informal negotiation. This informal negotiation may look like another form of corruption in countries whose legal systems already suffer from endemic corruption and serious legitimacy problems. This Article will examine the potential consequences of this emerging trend on rule of law development in countries lacking a strong human rights tradition, focusing particularly on countries of the former Soviet Union and the former Yugoslavia. 2
This Article questions whether it is advisable for policymakers and rule of law assistance providers to recommend and encourage troubled criminal justice systems, a term defined in Part II, to adopt plea bargaining. 3 Part III provides two examples of countries that recently adopted U.S.-style plea bargaining: the Republic of Georgia and Bosnia and Herzegovina. Both countries illustrate the potential concerns and pitfalls of transplanting plea bargaining into a troubled criminal justice system. 4 The Republic of Georgia provides an example of how plea bargaining's informal negotiation may look Page 358 like another form of corruption in a country where the legal system already suffers from endemic corruption and serious legitimacy problems. Bosnia and Herzegovina provides an example of how difficult it is to integrate a new practice into an existing criminal justice system and the challenge to not repeat existing bad practices within the new process.
A key question is how this new process impacts the overall development of the rule of law. Part IV explores the importance of public attitudes and perceptions in developing the rule of law and looks to the social psychology literature on legitimacy and procedural justice. This literature suggests that troubled criminal justice systems should not introduce procedures that cause further erosion of public perceptions of legitimacy.
Part V distinguishes between abbreviated trials and plea bargaining, setting forth the proposition that these terms should not be interchangeable and that they are, in fact, very different processes for rule of law development purposes. This Article will discuss why abbreviated trials might be a better option for troubled criminal justice systems. The distinction between plea bargaining and abbreviated trials, for rule of law development purposes, is that plea bargaining by definition calls for informal negotiations between the prosecutor and the defense, while abbreviated trials are more formal and operate under more standardized procedures, including standard sentence reductions. Informal negotiation during plea bargaining may reinforce existing poor public attitudes towards the legal system.
Part VI summarizes concerns regarding plea bargaining in the United States to illustrate the areas policymakers and rule of law assistance providers should consider before introducing plea bargaining into a troubled criminal justice system. These concerns include whether plea bargaining is coercive and whether defendants receive disparate sentences. Part VII briefly describes the primary rule of law assistance providers working on plea bargaining issues in troubled criminal justice systems. Part VIII summarizes the advantages of importing plea bargaining, primarily in reducing case backlogs, helping to build complex prosecutions, and allowing for more creative sentencing. The Article then looks at the possible unintended negative consequences of importing plea bargaining, including violations of defendants' rights, the public perception of plea bargaining as a process beyond the law, its potential to encourage coerced confessions and the possibility of being a "failed" transplant.
Part IX offers specific suggestions to rule of law assistance providers, both at the legislative stage, when countries are considering importing plea bargaining, and at the implementation phase, after a country adopts plea bargaining or another alternative to criminal trials. One recommendation is that rule of law assistance providers encourage policymakers to consider other procedures, such as abbreviated trials, that might provide the value of increased efficiency in handling criminal cases without the downside of the perceived lawlessness, injustice, and informality of plea bargaining. Finally, if countries do adopt plea bargaining, Part IX goes on to recommend that rule Page 359 of law assistance providers improve their monitoring efforts to evaluate how the procedures comply with human rights standards and that countries consider introducing procedural justice practices to reduce the general public's potentially negative attitude toward plea bargaining. Part X concludes and summarizes the overall analysis.
This Article examines reform efforts in troubled criminal justice systems. 5There are four main factors that define a troubled criminal justice system. 6The first is that the judiciary is not independent or is widely perceived not to be independent. 7 The second is that the country suffers from endemic corruption with the general public widely perceiving that government officials, including prosecutors and law enforcement personnel, act outside the law. 8 A third factor is systemic human rights abuses in the criminal justice system, including coercion of confessions, use of torture, and ill Page 360 treatment. 9 A fourth factor is that defense lawyers cannot adequately defend clients facing criminal charges due to restrictions in law or practice. 10
The Republic of Georgia and Bosnia and Herzegovina have adopted U.S.- style plea bargaining provisions. 11 Both countries provide a different example of what happens when a country introduces plea bargaining into a troubled criminal justice system. Georgia is an example of the danger of negative public perceptions, particularly in the early implementation stages. Bosnia and Herzegovina's experience illustrates the problems of integrating a new practice into an existing legal system and how a country can fail to protect defendants' rights in the process. 12 Each country receives rule of law development assistance from the U.S. Department of Justice Office for Overseas Prosecutorial Development Assistance and Training ("OPDAT") legal advisors, the...