Rethinking Plea Bargaining Policy: The Case of Ethiopia

Author:Alemu Meheretu Negash
Position:Alemu Meheretu Negash, PhD (Warwick University, UK); Asst. Professor of Law, Jimma University; Email: Alemeheret@gmail.com
Pages:342-372
SUMMARY

This article examines the desirability of plea bargaining in Ethiopia focusing on its policy justifications as encapsulated under the 2011 FRDE Criminal Justice Policy. Emphasizing upon the specific contexts of Ethiopia, the article analyzes policy documents, laws and comparative literature. The policy relies on the traditional rationales of plea bargaining. However, most of the elements in the... (see full summary)

 
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Rethinking Plea Bargaining Policy:
The Case of Ethiopia
Alemu Meheretu Negash
Abstract
This article examines the desirability of plea bargaining in Ethiopia focusing on
its policy justifications as encapsulated under the 2011 FRDE Criminal Justice
Policy. Emphasizing upon the specific contexts of Ethiopia, the article analyzes
policy documents, laws and comparative literature. The policy relies on the
traditional rationales of plea bargaining. However, most of the elements in the
rationales are under continuous criticism, and thus not compelling. The
exception could be the efficiency rationale which presumably has a special
force in attracting developing economies like Ethiopia. Yet in actuality, this is
not as compelling as imagined at least on two fronts. First, the rationale is
divorced from being principled in that lack of resources or the desire to spare
resources cannot vindicate an encroachment of fundamental rights and
freedoms. Second, the contextual investigation of the trial and case delay in
Ethiopia lends no conclusive support for it. If trials are exceptions and simple,
they will not be resource intensive, and thus are manageable with limited
resources. To a limited extent, plea bargaining is acknowledged for efficiency,
but this comes at the expense of the overarching values of criminal justice
namely fairness and accuracy and probably with other unintended perverse
consequences: violation of defendants’ rights, corruption and abuses, wrongful
convictions, among others.
Key terms
Plea bargaining · Ethiopian Criminal Justice Policy · Trial · Policy justifications
of plea bargaining · Efficiency · Fairness · Remorse · Trauma of trials · Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v11i2.4
Received: 26 May 2017 Accepted: 30 December 2017
This article is licensed under a Creative Commons Attribution-
NonCommercial-NoDerivs (CC BY-NC-ND)
Alemu Meheretu Negash, PhD (Warwick University, UK); Asst. Professor of Law, Jimma
University; Email: Alemeheret@gmail.com
I am grateful to Dr. Muradu Abdo and Mr. Worku Yaze for their thorough and incisive
comments on the earlier draft of th is Article. I also thank the two anonymous reviewers for
their constructive remarks.
Rethinking Plea Bargaining Policy: The Case of Ethiopia 343
Introduction
Plea bargaining has been a subject of controversy since its inception. While
proponents praise it for its role in managing caseload and enhancing the
efficiency of the criminal process,1 opponents challenge the very foundation of
plea bargaining as contrary to constitutional principles, ethics, and fair trial
guarantees.2 The major criticisms against plea bargaining include the following:
that by allowing lenient sentencing in exchange for a guilty plea it makes
criminal justice too soft on criminals and thus undermines the deterrent effect of
criminal sanctions3; that by inducing plea offers, it is likely to produce
involuntary guilty pleas and risk innocents plead guilty4; that it shifts power to
prosecutors leaving judges to do little more than ratify prosecutorial plea
bargaining decisions5 ; that it ignores victim interests; that it offends fair trial
1 Kobayashi, Bruce H. & John R. Lott (1996), “In defense of criminal defense expenditures
and plea-bargaining”, International Review of Law & Economics Vol.16, pp.397-416;
K.V.K. Santhy (2013), “Plea Bargaining in Indian and US Criminal Law: Confessions for
Concessions” NALSAR Law Review Vol. 7, No. 1,p. 99. On the economic analysis of plea
bargaining, see William M. Landes (1971), “An Economic Analysis of the Courts”,
Journal of Law & Economics Vol. 14 No.1, pp. 61-107; James E. Bond (1982), Plea
Bargaining and Guilty Pleas, 2nd. Ed. (N ew York: Clark Boardman & Co), (discussing the
constitutional status of plea bargaining and standards for accepting guilty pleas); Frank H.
Easterbrook (1983), “Criminal Procedure as a Market System”, J. Legal Stud. Vol. 12, pp.
308-09 (arguing that plea bargaining is desirable as a mechanism for setting the price of
crime).
2 Stephanos Bibas (2012), The Machinery of Criminal Justice (New York: Oxford
University Press); S. Schulhofer (1991), “Plea bargaining as disaster” Yale Law Journal
Vol. 101, p. 1979.
3 See generally D. Guidorizz (1998), “Should We Really Ban Plea bargaining? The Core
Concerns for Plea bargaining Critics” Emory Law Journal Vol.47, p.753; Kenneth Kipnis
(1976), “Criminal Justice and the Negotiated Plea”, Ethics, Vol.86, p.93; R.A. Fine (1987)
“Plea bargaining: An Unnecessary Evil”, Marquette Law Review, Vol.70, No.4, p.615;
Sam W. Calan (1979), “An Experience in Justice without Plea Negotiation”, Law &
Society Review, Vol.13, p. 327.
4 This is commonly referred to as the innocence problem. For more, see F. Andrew Hessick
III & Reshma Saujani (2002), “Plea bargaining and convicting the Innocent: The Role of
the Prosecutor, the Defence Counsel, and the Judge”, Byu. J. Pub. L., Vol.16, p. 189;
Katherine J. Strandburg (2003)), “Deterrence and the Conviction of Innocents”, 35 Conn.
L. Rev. Vol. 35, p. 1336; Fred C. Zacharias (1998), “Justice in Plea Bargaining” Wm. &
Mary L. Rev. Vol.39, pp.1151-55. For the discussion of this from the Ethiopian context,
see Alemu Meheretu, “The Innocence Problem in Context: The Case of Ethiopia”,
forthcoming.
5 This blame works well in those jurisdictions which bestow prosecutors with broader
discretionary powers. See Maximo Langer (2005-06), “Rethinking Plea bargaining: The
Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure”, 33
Am. J. Crim. L. Vol.33, p.223; Andrew Sanders et al (2010), Criminal Justice (Oxford

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