The Role of Plea Bargaining in Human Trafficking Cases

Jamie Bergin

Perpetrators of human trafficking are statistically likely to enjoy impunity for their crimes. What may surprise many outside the legal field is that even where human traffickers are captured and prosecuted, the courtroom is unlikely to configure in the process at all. This is attributable to what can broadly be termed as “plea bargaining”. A greater recognition of plea bargaining in human trafficking cases as a growing international norm is sorely needed. Current practice suggests that the use of plea bargaining is usually dictated not by any balancing of interests, but rather by limitations in resources.

The NGO Fair Trials proposed the following description of plea bargaining: “a process regulated by law and resulting in criminal liability, under which criminal defendants agree to accept guilt in exchange for some benefit from the state, most commonly in the form of reduced charges and/or lower sentences.” People sometimes associate plea bargaining exclusively with the US, but it is increasingly applied around the world, including in civil law jurisdictions where it was previously viewed with skepticism. Fair Trials studied 90 jurisdictions across the world and found that before 1990, only 19 of the 90 jurisdictions featured plea bargaining, but that by the end of 2015, the number had grown to 66. Arguably the primary reason for this shift is a desire on the part of judicial authorities to clear the backlog of cases before them; of course, the ongoing COVID-19 pandemic has only exacerbated this backlog.

Fair Trials say that international law and the international legal system are largely silent on plea bargaining. This is true because plea bargaining is a criminal procedure issue, which is normally covered under national legislation alone. The international anti-trafficking legal framework neither addresses plea bargaining directly. The so-called Palermo Protocol itself is silent, but its parent treaty, the United Nation’s Convention Against Transnational Organized Crime (UNTOC) appears to endorse a form of plea bargaining in Article 26 (2), which states: “Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in the investigation or prosecution of an offence covered by this Convention.”

Plea bargaining is extensively and increasing employed in human trafficking cases. In a 2008 report requested by the Department of Justice , a sample of prosecutors were asked to provide data on conviction for human trafficking, which revealed that 63% of the convictions resulted from plea-bargained guilty pleas. While high, it should be remembered that this is much lower than the average federal rate for criminal offences (97%). It is more difficult to delineate the exact scale in other countries. However, according to the 2019 US TIP report, plea bargains were often used in Bulgaria, primarily in order to clear case backlogs in Bulgaria; furthermore the fact that approximately 73 percent of trafficking convictions in Slovakia resulted in fully suspended sentences was explained by a high number of plea bargains.

On the one hand it is easy to understand why plea bargaining has taken hold in relation to human trafficking cases. It offers the following advantages:

• As stated above, it helps achieve more and faster resolutions to cases in jurisdictions where backlogs exist;
• It helps prosecutors obtain a guilty plea in cases where there are difficult evidentiary hurdles to overcome; for example, the issue of consent;
• It spares victims the difficult and often-traumatic experience of going to trial; this reasoning was used in a Spanish case to justify the rather low sentence (2 years) handed down to a convicted trafficker;
• Co-operation agreements can be used to yield important intelligence regarding other human trafficking perpetrators or members of criminal networks

However, these are counteracted by a set of potential disadvantages:

• In many jurisdictions, plea bargaining is governed in an intransparent way, where the prosecutors and judges enjoy a degree of discretion, and the voice of the victim is often not heard. Victims very rarely have the right to veto the judicial decision to proceed with plea bargaining, and, depending on the jurisdiction, the opportunity to present a victim impact statement may be withheld.
• Plea bargaining normally leads to the requalification of offences, meaning that offenders are charged with less serious crimes. This can detract from the actual nature of the crime suffered by the victim, as well as undermine the movement to recognize that human trafficking is a widespread phenomenon.
• Plea bargaining may lead to results which fail to protect future victims. In a high-profile example, Jeffrey Epstein is alleged to have continued engage in sex trafficking after a non-prosecution agreement allowed him to escape jail time. A federal appeals court has recently decided to hear a claim that the failure to inform Epstein’s victims of this agreement amounted to a violation of their rights.
• Perhaps most alarmingly, plea bargaining can incentivize accused persons to falsely confess to crimes they did not commit, leading to miscarriages of justice.

It is difficult to come to a final position on the role of plea bargaining in human trafficking cases. The aforementioned disadvantages nothwithstanding, it is easy to envision how the other extreme – mandatory prosecution of every human trafficking case – could prove just as harmful. Plea bargaining, if it is to be employed in human trafficking cases, should be implemented in line with universal judicial principles which protect both the accused and the accuser and take into account the undeniable gravity of this crime.