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ABSTRACT
I assess the force of a justification for post-conflict amnesties that is aimed at overcoming the most common objection to their conferral: that they entail retributive injustice. According to this justification, retributivists ought to consider amnesties to be justified because they are analogous to plea bargains, and because retributivists need not consider plea bargains to be unacceptable. I argue with reference to the 2001 Timor-Leste immunity scheme that amnesties conditional upon perpetrators’ not only admitting guilt and confessing but also making reparations may count as plea bargains. I show that plea bargains providing sentence discounts in return for guilty pleas, allowing offenders who accept these bargains to be punished in the absence of trials, and plea bargains offering leniency in punishment in exchange for offenders pleading guilty and providing testimony or other incriminating evidence against superiors or accomplices, may be consonant with versions of retributivism that allow less than the full measure of an offender’s deserved punishment to be exacted where necessary to maximise or expand deserved punishment overall. I argue that amnesties that are also plea bargains may be considered justified by plea bargain-defending retributivists. So too may amnesties conferred in exchange for perpetrators’ admitting guilt and providing incriminating testimony or other evidence against their superiors and accomplices, some of which count as plea bargains, since they too could in some cases maximise or expand deserved punishment.
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Notes
1 Transitional justice encompasses the range of practices and mechanisms employed with the aim of achieving accountability, justice, peace and/or reconciliation in the aftermath of violent political conflict. For an important book-length philosophical treatment of this topic, see Colleen Murphy, The Conceptual Foundations of Transitional Justice (Cambridge University Press, 2017).
2 References to the contentiousness of amnesties proliferate throughout the transitional justice literature. See, for instance, Freeman (Citation2009, 1): ‘There are few issues of law and policy as complex and divisive as the question of when and whether to grant amnesties for atrocities’. See also Mallinder (Citation2012, 9): ‘contemporary amnesty laws are often the most contentious aspect of peacebuilding and reconciliation programmes’.
3 Those who favour prosecution and punishment in preference to amnesty in post-conflict settings most often argue for this course on retributivist grounds. Mark Drumbl writes: ‘Retribution is the dominant stated objective for punishment of atrocity perpetrators’ (Drumbl Citation1997, 150). Louise Mallinder and Kieran McEvoy affirm that retributivism is the most commonly advanced rationale for punishing perpetrators in transitional justice contexts (Mallinder and McEvoy Citation2012, 416, 422).
4 And for some at second glance. Berel Lang, for instance, concludes that the amnesty granted to perpetrators of gross human rights violations in post-apartheid South Africa is ‘straightforwardly inconsistent’ with retributivism (Lang Citation2009, 609).
5 In fact, matters are more complicated than this because retributivists typically accept both the requirement of commensurateness, sometimes called cardinal proportionality, which demands that the severity of punishment, conceived of in absolute terms, must fit the seriousness of the wrongdoing for which it is imposed and (ordinal) proportionality, which requires there to be a tariff of punishments that aligns lesser crimes with less severe punishments and more serious crimes with more severe punishments.
6 Joel Feinberg provides as an example of comparative justice ‘punishment of the guilty when others equally guilty are let go’ (Feinberg Citation1974, 317).
7 A serious comparative injustice may also result from a politically motivated torturer being granted amnesty, and thereby escaping punishment, while another offender who has contemporaneously committed an act of petty theft purely out of self-interest is subjected to punishment. It is sometimes argued that the political motivation of perpetrators on whom amnesty is conferred justifies granting amnesty to them but not to offenders lacking political motivation but it is not clear why or that this need be so.
8 Colleen Murphy argues that retributivism is inapplicable to transitional justice settings (Murphy Citation2017, 84–96). For a rebuttal of Murphy’s arguments, see Lenta (Citation2019).
9 Plea bargains may also involve charge bargaining, that is, dropping certain of the charges against defendants in exchange for their pleading guilty to one or more of the remaining charges, the aim being once again to avoid or shorten trials. These plea bargains are remote from amnesties inasmuch as the latter never involve the dropping of certain charges in exchange for pleading guilty to others.
10 In the United States, first-time offenders who have committed minor, non-violent crimes may be offered a plea bargain involving a suspended sentence; that is, their sentence of imprisonment is suspended, allowing them to serve probation instead of time behind bars. But as Duff notes, probation is not an alternative to punishment. It is a punishment in virtue of being ‘a burden imposed on [the offender] by the court for his offence’ (Duff Citation2001, 101).
11 It is sometimes argued that perpetrators who were granted amnesty by the South African TRC received some punishment by virtue of the adverse consequences for them of admitting to gross human rights violations including societal condemnation, job losses and even divorce. But to the extent that these consequences amount to punishment, they are informal sanctions that do not qualify as legal punishment.
12 See United Nations Regulation no. 2001/10, ‘On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor’, available at https://peacekeeping.un.org/mission/past/etimor/untaetR/Reg10e.pdf (last accessed 24 January 2023, hereafter referred to as ‘the Regulation’).
13 ‘Serious criminal offences’ were defined as genocide, war crimes, crimes against humanity, murder, sexual offences and torture.
14 Oddly, offenders’ statements had the potential to incriminate them. The Regulation requires that offenders must be informed that their statements ‘will be sent to the Office of the General Prosecutor and that their contents might be used against him or her in a court of law should the Office of the General Prosecutor choose to exercise jurisdiction’ (section 23.3 of the Regulation). More justifiable would have been for the content of these statements to be protected by use immunity, disallowing the Office of the General Prosecutor to use them for the purpose of prosecution.
15 The Office of the United Nations High Commissioner for Human Rights’s view that immunity from liability bestowed in Timor-Leste was ‘contingent on community service or payment’ is erroneous insofar as the Regulation specified that acts of reconciliation could include community service, reparation, public apology and/or another act of contrition’ (s 27(7) of the Regulation) and descriptions of the unfolding of the process agree that in many cases perpetrators were required only to issue a public apology (see, for example, Combs Citation2007, 221; Mallinder Citation2014, 160).
16 The voluntariness of acts of reparation may be viewed as fostering the attainment of reconciliation inasmuch as perpetrators’ freely undertaking these acts more readily allows the acts to embody recognition of their wrongfulness, and to express both their apology and remorse and commitment to atoning and repairing the harm they have caused.
17 But if acts of reconciliation count as punishment, why does not requiring perpetrators publicly to admit guilt and confess as a condition of receiving immunity, the sole condition upon which the post-apartheid South African amnesty was granted, count as punishment? Despite publicly admitting guilt and confessing’s being burdensome because they will tend to be painfully humiliating or shame-inducing and to expose perpetrators to social opprobrium, they do not amount to punishment because they are not imposed as consequences of what has been established to be an offence on the part of an offender, no offence having been established until after they have admitted guilt and confessed (and perhaps also some kind of corroborative verification of their account of their misdoings has been completed).
18 Section 27(7)(d) of the Regulation.
19 Section 32 of the Regulation.
20 David Dolinko denies that consequentialist retributivism is coherent (Dolinko Citation1997) while Mitchell Berman contends that there is nothing incoherent in the idea of a consequentialist form of retributivism (Berman Citation2011).
21 Lippke persuasively counters several common objections to plea bargains. Opponents of plea bargaining sometimes object that because they exert pressure on criminal defendants to waive their rights not to incriminate themselves and to stand trial, plea bargains are unacceptably coercive. Yet, as Lippke shows, while the plea-bargaining system in the United States and certain other liberal democracies may be unacceptably coercive, plea bargaining need not be so (Lippke Citation2011, 54–61). Plea bargains can be restricted to making defendants a tempting conditional offer ‘whose effect is to create a net increase in a person’s open options, giving him or her a choice not previously possible’ (Feinberg Citation1986, 230, emphasis in original): a punishment more lenient than that to which they would be sentenced at trial if convicted in exchange for a guilty plea and sometimes a confession. Defendants, inclusive of those who are innocent, who choose to stand trial instead of accepting a plea bargain, need not be worse off relative to their baseline position (the post-charge situation, a position that does not violate their rights). Many defendants are made better off by plea bargains which, by reducing their sentences, improve their circumstances. To be sure, plea bargains may be unacceptably coercive, as when they are combined with trial penalties, that is, more severe punishment consequent upon defendants choosing to stand trial instead of taking a plea bargain. But while the trial penalties commonly employed in the United States do indeed impose a great cost on defendants who elect to stand trial, no such cost is imposed if plea bargains are not conjoined with trial penalties. There may be a residual worry that plea bargain offers place pressure on innocent defendants to plead guilty (Duff Citation2001, 215, n49). Confronted with the difference between the announced presumptive sentence and the discounted sentence they will receive if they plead guilty, some innocent defendants may conclude that they cannot risk standing trial. Lippke concedes that plea bargains may exert some pressure on innocent defendants, but rightly observes that there will almost invariably be pressure on innocent defendants to admit their guilt arising from the costs of trials, which range from financial expense to the psychological burden of standing trial (Lippke Citation2011, 60–61). As long as sentence discounts are kept modest, the inducement of sentence reductions may add only slightly to the pre-existing incentives to pleading guilty, ensuring that the pressure on innocent defendants to plead guilty is not overwhelming.
22 This is not to deny that retributivists could consider certain amnesties to be justified on grounds unrelated to the plea bargain analogy. As I mentioned in section 1, sensible retributivists concede that the obligation to ensure that wrongdoers receive the punishment they deserve is susceptible to being outweighed by conflicting considerations of sufficient import. There could be a number of such considerations.
23 If this seems implausible, consider the view of Michael Moore, a pre-eminent retributivist, concerning the ‘the intentional forgoing of any opportunity to punish a guilty offender in order to obtain the conviction and punishment of an even more guilty offender’. Says Moore: ‘the deontological retributivist might deny the propriety of the practice. More plausibly, if he is a ‘threshold deontologist’, as am I, he might more qualifiedly disavow the practice except when it is needed to punish some very deserving criminals’ (Moore Citation1997, 158). In Alec Walen’s assessment, ‘most retributivists would accept that it is justifiable to forego punishing one deserving person if doing so would make it possible to punish two equally deserving people, or one more deserving person’ (Walen Citation2021: §4.6, emphasis added).
24 As Geoff Dancy observes, ‘[i]t remains unclear whether amnesties are effective … Few studies conduct systematic studies of amnesty performance’ (Dancy Citation2018, 389).
25 Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace, 24 November 2016, available at https://www.peaceagreements.org/wview/1845/Final%20Agreement%20to%20End%20the%20Armed%20Conflict%20and%20Build%20a%20Stable%20and%20Lasting%20Peace (last accessed 15 May 2023).
26 For a deterrence-based argument for the prosecution and punishment of perpetrators of serious human rights violations in the aftermath of violent conflict, see Orentlicher (Citation1991).
Additional information
Notes on contributors
Patrick Lenta
Patrick Lenta is Associate Professor in the Law Faculty at the University of Technology Sydney. He is the author of Corporal Punishment: A Philosophical Assessment (Routledge, 2018).