Academic journal article Washington International Law Journal

To Plea or Not to Plea: The Benefits of Establishing an Institutionalized Plea Bargaining System in Japan

Academic journal article Washington International Law Journal

To Plea or Not to Plea: The Benefits of Establishing an Institutionalized Plea Bargaining System in Japan

Article excerpt

I. Introduction

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged."-Chief Justice Burger, speaking for the United States Supreme Court.1

"[Prevailing legal sensibility recoil[s] at the thought that criminal justice could be a matter to be negotiated rather than imposed."-Mirjan Damaska.2

Plea bargaining is simultaneously one of the most frequently used practices in criminal justice systems around the globe and one of the most controversial practices.3 At its core, plea bargaining is a negotiation process between the prosecution and defense.4 It permits the defendant to admit incriminating facts or to plead guilty to one or more criminal charges in exchange for the prosecutor's suspension of prosecution for other charges (charge bargaining) or recommendation of a lighter sentence (sentence bargaining).5 The practice is voluntary; criminal defendants must choose whether to waive their constitutional right to a jury trial and forgo the safeguards that a trial provides.6 On the one hand, plea bargaining is considered vital for sustaining overburdened trial courts and prosecutorial staffs.7 On the other hand, some believe that plea bargaining treats guilty defendants too leniently and undermines the truth finding function of trial by pressuring innocent defendants into accepting a bargain.8

The latter theory prevails in Japan, which lacks a formal plea bargaining system and whose legal community has long resisted adoption of such a system.9 Following a nationwide economic downturn in the 1990s, the Japanese government instituted a series of legal reforms proposed by the Justice System Reform Council ("JSRC") to strengthen the foundations of the country's legal and administrative apparatuses for the twenty-first century.10 The JSRC specifically refused to recommend a system of plea bargaining, stating that it was important to develop efficient trial procedures but that there were "problems" associated with giving criminal defendants the choice to avoid trial.11 Accordingly, plea bargaining provisions were not among the reform laws passed by the Japanese legislature.12 In addition, Japanese legal professionals believe that plea bargaining is incompatible with the pursuit of justice within the Japanse system,13 which emphasizes truth seeking, the defendant's remorse and rehabilitation, and the protection of victims' interests. The rejection of plea bargaining by the JSRC, the Japanese legislature, and Japanese legal professionals assumes new urgency in light of rising pressures on the country's criminal justice system to increase efficiency since the early 1990s.15

Despite their resistance to institutionalized plea bargaining, key players in the Japanese legal system have sanctioned alternative kinds of bargaining in response to the demand for efficiency.16 The main response has been a system of "tacit" bargaining, in which there is an implicit, often unspoken, exchange of the defendant's confession for lesser charges or recommendation of a more lenient sentence by the prosecutor.17 When defendants confess pursuant to a tacit bargain, they are usually convicted under expedited trial procedures.18 Since some semblance of trial is preserved and prosecutors are not obligated to adhere to implicit bargains, tacit bargaining's "unspoken exchange[s] of concessions" is more acceptable to the Japanese legal community than institutionalized plea bargaining.19 Nonetheless, some view tacit bargaining as the "functional analogue" of formal, American-style plea bargaining.20

This comment argues that the confession-reliant tacit bargaining now practiced in Japan is an ineffective substitute for a system of institutionalized plea bargaining. Institutionalized plea bargaining achieves the ultimate efficiency goal of avoiding trial in two ways: it creates binding, enforceable bargains,21 and it yields benefits to both the defense and prosecution through negotiation. …

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