Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help address other serious human rights abuses resulting from a poorly functioning criminal justice system. Plea bargaining may help to alleviate some of these problems. However, in countries that have not previously used plea bargains, this kind of reform is a serious change in the legal system and should be carefully considered in the overall context of the existing criminal justice system.
To aid post-conflict countries that are considering reforming their criminal procedure to allow for shortened processes, the memo will (1) define plea bargaining and another commonly used shortened process, abbreviated trials (2) explain the advantages of plea bargaining (3) discuss the disadvantages of plea bargaining including examples of unintended negative consequences of introducing plea bargaining (4) discuss best practices in the legislative drafting process, including the need for thorough assessment before engaging in legislative reform and specific legislative provisions drafters should consider in the legislative drafting phase (5) this memorandum will conclude with a discussion of the importance of monitoring plea bargaining after adoption which may lead to possible further legislative reforms adjusting the law to respond to concerns arising from how plea bargaining is working in practice.
International Network to Promote the Rule of Law
Cynthia Alkon & Ena Dion, Introducing Plea Bargaining into Post-Conflict Legal Systems, in International Network to Promote the Rule of Law (2014).