Punishment in Transition

Many in the United States are hoping that the successful prosecution of former President Trump will signal an end to what they see as the anti-democratic and autocratic leanings of his administration. Such hopes build on a longstanding association between criminal trials of political leaders and transition to more stable democracy. Since Nuremburg, the criminal trial has been part of the iconography of transition. It captures our imagination, giving us the sense that "justice" has been done. The belief in the benefits of criminal punishment to transitioning societies has had a tangible impact on the current global legal order. It has informed the strategy of human rights defenders who push for criminal prosecutions of their former leaders. It has also been consecrated in law, with various sources of international law obligating States to investigate, prosecute, and punish gross violations of international humanitarian law and human rights law. Moreover, the U.N. Secretary General identified criminal punishment as one of four pillars of transitional justice, claiming that it "helps strengthen societal trust and the rule of law." But do criminal trials live up to this promise? Can a country really punish its way to transition to a more democratic future? This question was recently put to the test in Guatemala, where criminal trials for atrocities and corruption came to the fore when two candidates who had been implicated in these trials became front-runners in Guatemala's Presidential election. This article thus draws from an in-depth case study of Guatemala as well extensive cross-national empirical data on trials in transition to examine the effect of criminal convictions on democratic practices in transitional States. Specifically, we examine whether criminal prosecutions 1) endanger democratic institutions; 2) empower pro-democratic mobilization; 3) lead to greater political polarization and backlash; or 4) decrease the likelihood that political leaders who lose elections will accept the results. Equipped with this data, this article seeks to help countries make more informed decisions about whether to prosecute former political leaders for their crimes.