Procuring Guilty Pleas for International Crimes: The Limited Influence of Sentencing Discounts

Abstract

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of impediments unknown to domestic prosecutors. Most important of these is that some groups of international defendants do not significantly value the sentencing concessions that form the heart of plea bargaining in national criminal justice systems. This Article explores the role of sentencing discounts in the guilty-plea decisions of international defendants, and it reveals that while sentencing discounts play the primary role in influencing Western defendants charged with domestic crimes to plead guilty, those same discounts often have relatively little effect on the guilty-plea decisions of various groups of international defendants. Indeed, whether the prospect of sentence leniency will motivate an international defendant to plead guilty depends on a number of eclectic and sometimes unexpected factors, including the nature of the crime, the nature of the prosecutorial selection process, the background of defense counsel, the status and education of the defendants, and the defendants' cultural views about crime and its appropriate punishment. The study in its entirety reveals that the wholesale transplantation of plea bargaining practices that successfully procure guilty pleas in the context of domestic prosecutions is likely to prove inefficient and ineffective in the context of many international prosecutions.