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

Countries seeking to reform their justice systems often implement a plea-bargaining system modeled after that in the United States. Though it can expedite criminal procedure and relieve heavy caseloads, plea bargaining may make it more difficult for these countries to establish the rule of law. Development of the rule of law depends upon numerous, fragilely-intertwined factors. Any new system forces constituents to perform new roles and changes how defendants, attorneys, victims, and the general public alike view their government. Countries lacking strong human rights traditions face even more obstacles in introducing reforms that seek to protect citizens from crime and rights violations. The general public’s attitudes are integral to developing the rule of law, and countries with troubled criminal justice systems should not implement procedures that the public could perceive as illegitimate. United-States-style plea bargaining faced significant backlash in the Republic of Georgia and Bosnia and Herzegovina, where the public likened bargaining’s informal negotiation processes to another form of corruption. Each country must determine its priorities and weigh whether a United-States-style system would provide the best solution to its problems. Reformers may consider adopting either plea bargaining or abbreviated trials—which involve more formal, standardized procedures than plea bargaining. No matter the system, however, comprehensive periodic monitoring is necessary to offset unintended negative consequences and ensure compliance with human rights standards.

“Even changes that may seem highly technical and procedural can deeply influence and change public attitudes toward the legal system. While plea bargaining may assist in more efficient handling of criminal cases and can provide an invaluable tool in complex prosecutions, it does not necessarily contribute to the perception of fairness in a criminal justice system or to developing a positive public attitude towards the rule of law.” p. 417