Rehabilitating Charge Bargaining

Indiana Law Journal Volume 96 Issue 3 Article 4 Spring 2021 Rehabilitating Charge Bargaining Nancy Combs William & Mary, Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Combs, Nancy (2021) "Rehabilitating Charge Bargaining," Indiana Law Journal: Vol. 96 : Iss. 3 , Article 4. Available at: https://www.repository.law.indiana.edu/ilj/vol96/iss3/4 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact . REHABILITATING CHARGE BARGAINING BY NANCY AMOURY COMBS* 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 distort the factual basis of 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 acts. 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 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. * Ernest W. Goodrich Professor of Law, Director Human Security Law Center, William & Mary Law School. I presented this Article at the American Society for International Law mid-year meeting, the ICC Scholars’ Forum, and the 2019 William & Mary Law School Scholarship Slam and received valuable feedback. This Article has benefited from the insightful comments of Jeff Bellin, Jay Butler, Evan Criddle, Caroline Davidson, Yvonne Dutton, Adam Gershowitz, Barbora Hola, Dov Jacobs, Eric Kades, Matthew Kane, Patrick Keenan, Linda Malone, Howard Morrison, Joseph Powderly, Leila Nadya Sadat, Elies van Sliedregt, Milena Sterio, and Jennifer Trahan. I am also grateful to Dorothy Canevari, Melanie Dostis, Darja Meskin, Yasmine Palmer, Heather Pearson, and Sean Tenaglia for excellent research assistance. Any errors are my own. 804 INDIANA LAW JOURNAL [Vol. 96:803 INTRODUCTION ....................................................................................................... 804 I. CHARGE BARGAINING AND ITS DOMESTIC AND INTERNATIONAL CRITICS ......... 808 II. CRITICIZED FOR ALL THE WRONG REASONS: THE CHARGE BARGAINING OF INTERNATIONAL CRIMES ........................................................................................ 820 A. THE UNCOERCIVE NATURE OF INTERNATIONAL CRIMINAL CHARGING... 820 B. THE DISTORTED FACTUAL BASES OF MOST INTERNATIONAL CRIMINAL CONVICTIONS ............................................................................................... 821 C. THE DISTOTED FACTUAL BASES OF MOST INTERNATIONAL CRIMINAL CONVICTIONS: EMPIRICAL PROOF ................................................................ 824 1. METHODOLOGY ............................................................................... 824 2. UNDERSTATEMENT OF CRIMINAL ACTIVITY AT THE ICTY ............. 825 A. ICTY CHARGING PRACTICES OVER TIME ............................. 830 B. THE NATURE OF THE CHARGE REDUCTIONS AND THEIR NORMATIVE IMPLICATIONS ....................................................... 835 3. UNDERSTATEMENT OF CRIMINAL ACTIVITY AT THE ICC................ 838 4. CHARGE BARGAINING VS. NARROW INDICTMENTS: A DISTINCTION WITHOUT A DIFFERENCE ..................................................................... 843 5. SUMMARY ....................................................................................... 846 III. CHANGING THE CONVERSATION: FROM DISTORTION TO THE APPROPRIATE SCOPE OF INTERNATIONAL CRIMINAL CHARGING DECISIONS ............................... 846 A. ACCEPTING THE DESIRABILITY OF SOME NEGOTIATED DISPOSITIONS .... 847 B. A REALITY-BASED ASSESSMENT OF INTERNATIONAL CHARGE BARGAINING ................................................................................................. 852 IV. CHARGING FORWARD: ADDRESSING THE PRACTICAL IMPEDIMENTS TO THE EFFECTIVE USE OF CHARGE BARGAINING IN THE INTERNATIONAL CONTEXT ....... 857 CONCLUSION .......................................................................................................... 861 APPENDIX ............................................................................................................... 863 INTRODUCTION Nobody likes plea bargaining. Scholars from around the world have excoriated the practice, calling it coercive, unjust, and a host of other pejorative adjectives. Despite its unpopularity, however, plea bargaining has constituted a central component of the American criminal justice system for nearly a century. Born as a means of avoiding increasingly complicated and time-consuming criminal procedure rules, plea bargaining has become an entrenched feature of American criminal justice. About 90% of American criminal convictions are obtained through guilty pleas,1 virtually all of which are obtained through plea bargaining.2 Moreover, in recent decades, the United States has exported its reliance on plea bargaining to other countries where the practice was previously unknown.3 Countries as legally 1. George Fisher, Plea Bargain (...truncated)