Rehabilitating Charge Bargaining

Abstract

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity: the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to factually distort the defendant’s ultimate conviction. Commentators apply this criticism to charge bargaining whether it is used to obtain guilty pleas for domestic crimes or international crimes. This article shows, however, that the criticisms leveled at domestic charge bargaining have been inappropriately transplanted wholesale to the international context. Through a comprehensive empirical analysis of international criminal indictments and a series of in-depth interviews with international prosecutors, this article shows that international prosecutors routinely charge their defendants with only a subset of their criminal behavior. That is, this article’s empirical analysis reveals that international criminal convictions obtained without charge bargaining suffer from the primary flaw afflicting convictions that are obtained as a result of charge bargaining—factual distortion—yet they gain none of the advantages that charge bargaining can provide. This insight necessarily alters our normative assessment of charge bargaining, so this article develops a new normative framework by which to evaluate charge bargaining. Specifically, this article shows that the desirability of charge bargaining in international criminal prosecutions has nothing to do with the contestations surrounding its practice in domestically and almost everything to do with one of the most sharply contested normative controversies in all of international criminal law: the controversy surrounding the appropriate breadth of criminal charging.

Keywords: plea bargaining, guilty pleas, international criminal law