Guest Post: Hafetz–Measuring the Value of a Criminal Trial

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall University School of Law. This post is written as a comment to Stuart Ford’s guest post, published yesterday.]

Stuart Ford’s article, Complexity and Efficiency at International Criminal Courts, seeks to address the common misperception that international criminal trials are not only expensive, but also inefficient.  Professor Ford’s article focuses principally on the International Criminal Tribunal for the Former Yugoslavia (ICTY), which, in terms of the total number of accused, is the largest international criminal tribunal in history.  Professor Ford seeks to measure whether the ICTY has, in effect, provided good bang for the buck.  He concludes, rightly I believe, that it has.    Although his primary aim is to develop a way for measuring a tribunal’s efficiency, Professor Ford’s article also has important implications for broader debates about the merits of international criminal justice.

Professor Ford defines efficiency as the complexity of a trial divided by its cost.  While trials at the ICTY often have been long and expensive, they have also been relatively efficient given their complexity.   Further, the ICTY preforms relatively well compared to other trials of similar complexity, such as terrorism trials conducted in the United States and Europe, as well as trials that are somewhat less complex, such as the average U.S. death penalty case.   Garden-variety domestic murder trials, which at first blush might appear more efficient than the ICTY,  do not provide a useful point of comparison because they are much more straightforward.

Once complexity is factored in, the ICTY appears comparatively efficient.  Its record is more impressive considering that an often recognized goal of international criminal justice—creating a historical record of mass atrocities—can make the trials slower and less efficient in terms of reaching outcomes for specific defendants.

Professor Ford also finds that the ICTY performed more efficiently than the Special Court for Sierra Leone (SCSL), thus challenging a perceived advantage of such hybrid tribunals over ad hoc tribunals like the ICTY.  His conclusion suggests the need for future research on comparisons among tribunals within the international criminal justice field, which might have implications from an institutional design perspective.

Professor Ford does not address whether, as a normative matter, international criminal justice is worth the price.  Nor is he likely to persuade those who believe they simply cost too much.    But he provides a valuable analysis for assessing their relative efficiency, and thus a rebuttal to those who would limit international criminal tribunals on account of their purported inefficiency.   Relatively speaking, and considering the complexity of the legal and factual terrain, such tribunals can prove a bargain.

Further, Professor Ford’s article also helps inform other debates over international criminal justice.  Concerns about cost have prompted various reforms, including the adoption of rules that allow judges to limit the size and scope of the prosecution’s case.  One innovation has been the use of witness statements in place of live witnesses for purposes of expediency.  Such changes, however, bump up against the competing goal of ensuring that trials are fair and have triggered concerns that due process protections are being diluted through procedural short cuts.  As Professor Ford explains, the length and cost of trials at ICTY is largely a product of their inherent complexity, and there is little fat that can be trimmed without jeopardizing those trials’ fairness.

If costs may be deemed essentially fixed given the complexity of prosecuting mass atrocities, the decision whether to engage in such prosecutions becomes a normative determination about their relative worth.   This question, moreover, has ramifications beyond the international justice field.  In the United States, for example, trials are a vanishing species.  As the U.S. Supreme Court recently observed, ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.  Professor Ford’s article suggests that inefficiency itself does not explain or justify the shift away from trials to plea bargaining.  Rather, that shift more likely reflects a value judgment about how resources are expended in the administration of criminal justice.  Trials, in other words, are in decline not because they are inefficient, but because they are considered not to be worth the price.

Professor Ford does not attempt to resolve these larger issues, but instead focuses on developing a way to measure the efficiency of international criminal trials that takes into account their complexity.  In doing so, however, he underscores that efficiency concerns should not deter the expansion of international criminal justice.