Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?

Cynthia J. Alkon, Appalachian School of Law

Abstract

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 technical change in process. 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 article examines the known and potential consequences of this emerging trend on rule of law development in countries lacking a strong human rights tradition, focusing particularly on two countries: the Republic of Georgia and Bosnia and Herzegovina. This article also discusses developments in other countries of the former Soviet Union and the former Yugoslavia.

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. Public attitudes and perceptions are important factors in developing rule of law and the social psychology literature on legitimacy and procedural justice suggests that troubled criminal justice systems should not introduce procedures that cause further erosion of public perceptions of legitimacy. This article suggests that abbreviated trials might be a better process for troubled criminal justice systems.

This article also 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 some other form of 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 perceived lawlessness, injustice and informality of plea bargaining. If countries do adopt plea bargaining this article recommends that rule of law assistance providers improve their monitoring efforts to evaluate how the procedures comply with human rights standards and consider procedural justice practices to reduce the general public’s potentially negative attitudes towards plea bargaining.