Recently, the U.S. Supreme Court grappled with an issue of first impression in this country, but one familiar to other jurisdictions around the world—that is, whether a former head of state should be immune from prosecution for his criminal acts while in office. Those who argue in favor of criminal accountability, at home and abroad, often trumpet the democratic benefits of punishing state officials. Their reasoning has been consecrated in law, finding its way into judicial decisions that overturn amnesty laws. But is there any evidence to support the central claim on offer—that punishment leads to a more democratic future?
Using empirical evidence from other countries that have prosecuted state officials for their crimes over the last three decades, this study sheds light on the possible effects of these prosecutions on democratic institutions and behaviors. First, it examines an in-depth case study of Guatemala, a country where this issue recently came to the fore, to develop a set of hypotheses about the democratic effects of punishing state officials. To determine whether the lessons gleaned from Guatemala are generalizable, it tests these hypotheses using the most extensive global data set of prosecutions of government officials in domestic courts, which specifically focuses on human rights prosecutions.
Interestingly, the findings reveal a paradox. While criminal prosecutions of state officials for human rights violations are associated with some positive outcomes, like increased civil society activism and pro-democratic mobilization, they are also associated with greater political polarization and anti-system backlash. By contrast, they appear to have little effect on democratic institutions. Considering these data, a central takeaway is that the democratic effect of prosecuting political leaders tends to rest with the people. Whether punishing them helps to ensure a more democratic future depends more on how the populace responds—negatively or positively—than on the limited institutional effects resulting from punishment.
* Rachel López is a Leonard Barrack ’68 Chair in Law at Temple University Beasley School of Law.
* Geoff Dancy is an Associate Professor in the Department of Political Science at the University of Toronto, Canada. The authors are grateful to Gabriella Villafan for her research assistance. This research was also facilitated by fellowships with the Program in Law and Public Policy at Princeton University, the Carr Center for Human Rights Policy at the Harvard Kennedy School, the Lauterpacht Centre for International Law at the University of Cambridge, the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School, and the Max Planck Institute for Comparative Public Law and International Law as well as Global Scholar Award from the Fulbright U.S. Scholar Program. We are also thankful for the opportunity to present this research at the “Transitions to Democracy Revisited” workshop at Princeton University, the Global Justice Workshop at Harvard Law School, CrimFest, the American Society of International Law’s International Criminal Law Interest Group Works in Progress Conference, and the Graciela Olivárez Latinas in the Legal Academy (“GO LILA”) Workshop, as well as at the American Associations of Law Schools (“AALS”) 2024 Annual Meeting. We are grateful to have had the immense privilege of presenting this research to many of Guatemalan human rights lawyers and indigenous rights advocates who pushed for criminal accountability on June 10, 2025, and to researchers at Diálogos on June 11, 2025 in Guatemala City. Their feedback was critical to this Article. This piece was enriched by feedback from Raquel Aldana, Yutian An, Gabriella Blum, Rita Canek, Stephen Cody, Netta Cohen Barak, Connie de la Vega, Erick de León, Gabriela Domínguez, Karen Engle, Astrid Escobedo, Mailyn Fidler, John Goldberg, Daniel Haering, María Hortencia Lajuj, Juan Gabriel Ixcamparij Nolasco, Marissa Kardon Weber, Stephen Koh, Ryan Liss, Orlando López, Jane Manners, Dennis Martínez, Candida Mercedes Morales, Daniel McConkie, Carlos Morales, Rony Morales, Raul Nájera, Daniel Nuñez, Cristian Otzin, Deborah Pearlstein, Hilda Pineda, Juan Luis Polanco Santizo, Jaya Rami-Nogales, Evelyn Quina Oxlaj, Evelyn Marcelina Rangel-Medina, Itay Ravid, Dunia Ramirez, Gloria Reyes, Kim Lane Scheppele, Kathyrn Sikkink, Silvio Tay, and Richard Wilson. Finally, we would also like to express our sincere gratitude to the editors of the University of Illinois Law Review, especially Kendall Crispin, Abby Milhiser, and Brad Schutter.
The full text of this Article is available to download as a PDF.