To Punish the Guilty and Protect the Innocent

Abstract

Any country in the aftermath of transition to democracy confronts the challenge of transitional justice, that is, the task of designing a system of procedures for holding perpetrators and collaborators of the ancien regime responsible for their past activity. Two important normative goals that transitional justice shares with any system of justice are avoiding false convictions (punishing the innocent) on the one hand, and false acquittals (letting the guilty go) on the other. Different systems of transitional justice will vary in the extent to which they fulfill these normative goals. In this article I offer an approach to the study of systems of transitional justice that distinguishes between confession-based and accusation-based truth-revelation procedures (CTRs and ATRs). Game-theoretic models of plea bargaining from the law and economics literature are adapted to compare CTRs to ATRs. I evaluate their performance with respect to avoiding false conviction and false acquittal. I establish plausible conditions under which CTRs perform better than ATRs and formulate propositions. The empirical implications are illustrated with three cases from East Central Europe.