Mbale, Tororo, Soroti, Lira, and Kampala, Uganda
In my last post, I alluded to the upcoming Prison Project week, which I had been told would be a “life-changing experience.” I’ve returned from interviewing prisoners in Mbale, Tororo, Soroti, and Lira Prisons, and suffice it to say that I am still processing the experience. We worked harder than first-year associates last week. Our days began early and ended late. We prepared case files, interviewed prisoners, met with judicial officials, compiled documents, read new case files, and repeated each day.
I came into the week wondering how I would be able to sit across from an accused person who admitted to having committed a horrendous crime, without my judgment being shaded by personal disapproval of the individual’s actions. Oddly, this was not a struggle for me. I felt safe in the prisons, and when I met with accused persons I only saw another human being in front of me. Some admitted to doing wrong and wanted to participate in the plea bargaining process. Some maintained that they were innocent and were eager to meet with an advocate after months or years of waiting on remand without legal counsel. All were human beings. Some had made mistakes.
My thinking switched, and I put aside moral disapproval and replaced it with my advocate hat. My thinking went like this: “Yes, you defiled a child, your niece in fact. Yes, such an action is egregious. But let’s set that aside. What is the least amount of prison time that we can negotiate for you with the prosecution, something that the judge will accept?” I really enjoyed thinking like an advocate.
I struggled with the uncertainties of plea bargaining and the outcome such an action would bring for each individual. On one hand, if the accused pleas guilty, then the person gets their sentence right away and begins serving it, and will often get out of prison faster. But what if the person had waited on remand for several more years, and after full trial he or she would have been acquitted? What if the accused would have been convicted, and the judge would have been more lenient with the sentence than what we had negotiated? On the other hand, the judge may have been more exacting, up to even the death penalty for capital offenses. The accused person takes a risk by offering their plea of guilt in exchange for a sentence, and it is the job of a good advocate to assess the risks involved. In most instances, we had the help of Ugandan advocates, who were able to make these determinations about the strength of the case and likelihood of outcomes based off of their experience. But since the system is very new, there are many uncertainties faced by all stakeholders involved.
On the big picture, I still am astounded that so many people are sitting in prison on remand in complete uncertainty, completely in the dark about the case that the State has against them. Accused persons wait several months to several years on remand for their case to come up for trial, due to the excessive case backlog. An advocate is not appointed until close to trial. There is no such thing as a public defender in Uganda. Not only are the accused unable to work or be with their families while on remand, but Uganda is paying a lot of money to imprison them. Remand periods are therefore not only alarming human rights concerns, but economic concerns as well. It is also difficult for those who are later acquitted to receive any compensation from the State for the years of their lives deprived from them while on remand.
Yesterday was the first national Plea Bargaining conference hosted by Pepperdine Law at the Imperial Royale Hotel. It is amazing to see this kind of partnership between our institution and the Ugandan Judiciary. Many high-level judges, registrars, prosecutors, and advocates attended the event, including the Chief Justice of Uganda. The conference was interactive, containing mock plea bargaining, a simulation exercise, and extensive Q&A. Experienced judges and attorneys from the United States came to share best practices, including notable Pepperdine alumni Judge Beverly Reid O’Connell and Justice Tricia Bigelow. I’ve heard so much positive feedback from the Ugandan judges about the interactive style of the conference.
Ugandan officials are on board to implement plea bargaining. Still, there are problems unique to the Ugandan culture and legal system, and plea bargaining must be adapted by Ugandans to suit their country. My only feedback about the conference is that after Ugandan officials voiced their concerns and U.S. attorneys shared their practices in reply, the questions should be put back to Ugandans: “How do you think that this potential problem can be avoided or mitigated in the Ugandan context?” There were several recurring concerns expressed about plea bargaining, the biggest fear being that the public would believe (and perhaps accurately) that prosecutors and judges had been compromised through bribes to accept lower sentences for criminals. Other concerns expressed by Ugandans included: victims’ rights & reconciliation, judicial discretion in sentencing, logistical matters such as where and when different parts of the process take place, prisoner’s voluntary and knowing waiver of constitutional rights, and several others. A major concern voiced by those of us from the U.S. was the lack of a public defender for the accused from day one.
When a baby is born, it is messy but beautiful. The same is true of plea bargaining, which is being born right now in Uganda. There is no turning back. Leaders are making this a priority in the criminal justice system. There is much hope that this improvement will significantly alleviate case backlog and reduce the number of prisoners on remand. Still, there are many problems to overcome for this system to reach full maturity.