Tuesday, December 8, 2015

Professor Dervan Lectures Regarding Plea Bargaining in Japan

Earlier this year, Japan's House of Councillors passed a Bill Relating to Criminal Justice Reform. Japan's House of Representatives was scheduled to take up the bill during the same session of the Diet, but controversy ensued. The controversy centered around the bill's creation of a formal plea bargaining system in Japan. Given how long we have been relying on bargained justice in the United States, it might seem as though the entire world is dealing in bargains. In many countries, however, including Japan (at least for the moment), plea bargaining is prohibited.  

In the wake of the controversy, I was honored to be invited to Tokyo, Japan to deliver a lecture to the Japan Federation of Bar Associations. My lecture focused on both the history of plea bargaining in the United States and ways Japan can learn from this history in beginning down the path of bargained justice. The lecture will shortly be published in Japanese. For readers of this blog, I post below the English version of the lecture.

It will be fascinating to watch as Japan wrestles with the issue of whether to pass the proposed law. If the law is passed, it will be equally interesting to watch as plea bargaining evolves from its infancy in Japan.  Will it come to dominate their system as it has in the United States? Only time will tell. 

Bargained Justice:
Plea Bargaining and Innocence in the United States

Lucian E. Dervan
Associate Professor and Director of Faculty Development
Southern Illinois University School of Law

November 2015

Tokyo, Japan

Thank you to the Japan Federation of Bar Associations and Dr. Makoto Ibusuki for inviting me to join you today.  It is an honor to share my work with you and consider the future of plea bargaining in Japan. 

In 2012, United States Supreme Court Justice Anthony Kennedy wrote, “Criminal justice today is for the most part a system of pleas, not a system of trials.”  The data supports this assertion.  Today, over 97% of federal criminal convictions in the United States are the result of a plea of guilty, and the state systems are not far behind.

There are four primary types of pleas of guilt in the United States.  The first is an open plea, in which a defendant pleads guilty in return for no specific promise from the prosecution, but in the hopes of leniency from the court at sentencing because of a willingness to confess and accept responsibility for his or her actions.  The second is a charge bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to drop particular charges, especially charges that carry mandatory minimum sentences.  The third is a sentence bargain, in which the defendant pleads guilty in return for an agreement from the prosecution to recommend, or, at least, to not oppose, a particular sentence in the case.  In each of the above pleas, the court retains the discretion to make the final sentencing decision, though the courts encourage plea bargaining by following the recommended or agreed upon disposition in the vast majority of cases.  The final type of plea in the United States addresses the issue of judicial discretion at sentencing and is called a binding plea.  In the binding plea setting, the prosecution and defense determine the sentence that will result from the plea of guilt and, if the court accepts the agreement, the court is bound to impose only that sentence.  These types of pleas are less frequent than others, because many courts reject these types of agreements as impermissibly intruding into the sentencing powers of the judiciary. 

In Japan, by comparison, there is no formal plea bargaining system.  However, under laws proposed in the Japanese Diet this year, something resembling charge bargaining and sentencing bargaining may be permitted in white collar criminal investigations in the future.  The cases and issues I will discuss today relate directly to this type of plea bargaining and, therefore, I believe there is much to learn from the American experience as Japan begins down the road of bargained justice.

To begin our examination of plea bargaining and its history in the United States, allow me to tell you three stories of bargained justice.  The first is about a defendant who did not take the deal and the shocking punishment he received as a result.  The second is about a defendant who took the deal and the significant benefits he received in return.  The third is about a defendant who, despite her innocence, had no choice but to plead guilty because of the power of the system’s incentives.  I believe these three stories serve as excellent introductions to our consideration of the risks and rewards of creating a criminal justice system that relies on plea bargaining.

In late October of this year, Governor Rick Scott of Florida denied a petition for the commutation of the sentence of Orville (Lee) Wollard.  Wollard, a former human resources specialist at a large corporation in Orlando, is currently serving a 20 year prison sentence for firing a warning shot into the wall next to his daughter’s boyfriend.  The warning shot came at the end of a day in 2008 during which the boyfriend allegedly attacked Wollard, assaulted his daughter, and then refused to leave Wollard’s home.  When Wollard finally brandished his legally owned firearm, the boyfriend punched a hole in the wall, smiled, and began advancing.  Wollard finally fired a warning shot into the wall, and the boyfriend left.

Wollard was later arrested for the incident and spent a year in jail awaiting trial.  Believing his actions justifiable self-defense, Wollard rejected a plea bargain from the government that would have resulted in a sentence of only five years of probation.  Instead, Wollard decided to exercise his constitutional right to trial and present his case to a jury.  Unfortunately for Wollard, the court did not permit him to admit extensive evidence regarding the alleged abuse suffered by his daughter and family at the hands of the boyfriend.  Rather, the court merely permitted the defense to introduce evidence that the man was “no longer welcome” in the home.  After hearing the limited evidence in the case, the jury convicted Wollard of aggravated assault with a firearm, which in this case carried a mandatory minimum sentence of 20 years in prison.

There are many tragic aspects to this story.  Of particular relevance to my research is the shocking difference between the sentence offered with the plea bargain and the sentence faced after conviction at trial.  Some call this difference the trial penalty, and it is a phenomenon faced by defendants throughout the American criminal justice system when deciding how to proceed.  Of course, the vast majority of defendants never receive the tougher sentence associated with trial because they cave under the pressure.  As I mentioned a moment ago, over 97% of federal convictions in the United States are the result of a plea of guilty.  One federal judge in New York described the sentences defendants face if they reject plea offers and proceed to trial as “so excessively severe, they take your breath away.” 

Last month, a white collar defendant in Florida faced a decision regarding how to proceed in a case with yet another staggering trial penalty.  Michael Szafranski was an investment advisor in Florida who served as a “verifier” for $200 million worth of transactions related to the $1.2 billion Ponzi scheme lead by former attorney Scott Rothstein.  Rothstein had previously pleaded guilty in the case and cooperated with authorities in offering evidence against other members of the scheme.  In 2015, Szafranski was indicted on eleven counts of wire fraud and one count of conspiracy.  If convicted at trial on all counts, he faced a maximum sentence of 225 years in prison.  Prosecutors, however, offered him a deal.  If Szafranski pleaded guilty and cooperated with authorities, he would receive only thirty months in prison.  Facing a trial penalty of potentially hundreds of years, Szafranski did what anyone else would do and pleaded guilty. 

These first two stories present us with both the good and bad sides of plea bargaining.  By offering defendant’s incentives to plead guilty, the government is able to secure a conviction, while preserving valuable and scarce resources by avoiding a long and costly trial.  In cases involving multiple defendants and complex frauds, such as the Rothstein Ponzi case, plea bargaining also offers the government the ability to convince defendants to cooperate and provide evidence against others.  For defendants, particularly ones against whom there is significant evidence, plea bargaining provides a means for securing a definitive result and, potentially, a significantly reduced sentence in return relinquishing their constitutional right to trial, accepting responsibility for their actions, and cooperating with authorities.  These are the rewards acquired by prosecutors and defendants by allowing the plea bargaining system to thrive.

But there are also costs associated with bargained justice.  For defendants like Lee Wollard and Michael Szafranski, the plea bargaining system makes it extremely costly to exercise their constitutional right to trial.  Should defendants’ sentences be increased by years, decades, centuries if they reject plea offers and proceed to trial?  In considering this question, we must remember that both factually guilty and factually innocent defendants enter the criminal justice system every day.  The role of the system is to determine who is properly within its grasps and who should be found innocent and released.  But plea bargaining interferes with this fundamental process because the incentives to plead guilty are often so great that even the innocent will falsely confess if it is the rational course forward. 

For the final of the three stories, consider the fate of Erma Faye Stewart.  In 2000, Stewart, a thirty year old single mother of four, was arrested in Hearne, Texas.  At the time, Stewart lived in a public housing project.  The arrest was part of a large drug sweep based on information provided by a confidential informant.  In total, twenty-five men and two women were implicated in the narcotics scheme and each was placed in jail with a $70,000 bond.  The government quickly offered Stewart a plea bargain.  If she pleaded guilty, she would be released immediately, be placed on probation for ten years, and be fined $1,800.  If she refused, she would be held until trial, which could take months, and faced a possible sentence if convicted of five to ninety-nine years in prison.  Stewart’s attorney told her to take the deal.  With no money to bond out of jail prior to trial and no one available to watch her four children, Stewart had little choice.  Though she continued to maintain her innocence, she falsely confessed to the court and pleaded guilty.  An hour later she was released.  Stewart was not the only one to plead guilty in the case.  Of the twenty-seven people arrested, seven pleaded guilty to the charges.  When the remaining cases proceeded to trial in 2001, the government’s case quickly collapsed.  The informant had lied to prosecutors and the evidence he provided was worthless.  All those on trial were released.  For Stewart, however, the case was not over.  The prosecution refused to withdraw her guilty plea.  As a result of her narcotics conviction, she became ineligible for food stamps and educational loans and was evicted from her apartment.  Homeless, Stewart was forced to sleep outside, while her children slept in the homes of various friends each night.  While the cost of proceeding to trial was too much for Stewart, the cost of falsely pleading guilty was devastating as well. 

How did we arrive in this place?  How did bargained justice come to represent the criminal justice system in the United States?  Many assume that plea bargaining has always been a fundamental part of criminal justice in America.  The truth, however, is that until the second half of the twentieth century, plea bargaining was considered an impermissibly coercive institution by the courts.  The story of how plea bargaining rose from obscurity to dominance is a cautionary tale about the power of the plea bargaining machine and how quickly it can rise to dominance. 

Continue Reading the Lecture after the Jump


To understand how we arrived in this place, we must go back to the 1700s and examine confession law.  Up until the twentieth century, guilty pleas were simply considered a form of confession that occurred inside a courtroom, instead of in a police station.  Therefore, the same law applied to each.  One of the earliest cited cases regarding confession is the 1783 British case of Rex v. Waricksall, which introduces one to the idea that all confessions at the time, including pleas of guilt, must be voluntary and may not be induced by incentives.  The court stated, “[A] confession forced from the mind by the flattery of  hope, or by the torture of fear, comes in so questionable a shape… that no credit ought to be given to it.”

The same standard was adopted in the United States in the 1897 case of Brahm v. US.  In this case, the court stated, the “true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.”  

Despite these early precedents, beginning around the time of the American civil war, appellate courts began seeing bargains between prosecutors and defendants in return for pleas of guilt.  As might be expected based on earlier precedent, the appellate courts of the time looked with disfavor upon such bargains and case law demonstrates they were struck down as unconstitutional with great uniformity.  Some examples of the language used by the appellate courts during this period include: 

No sort of pressure can be permitted to bring the party to forego any right or advantage however slight.  The law will not suffer the least weight to be put in the scale against him.”

When there is reason to believe that the plea has been entered through inadvertence… and mainly from the hope that the punishment to which the accused would otherwise be exposed may thereby be mitigated, the Court should be indulgent in permitting the plea to be withdrawn.”

[Plea bargaining is] hardly, if at all, distinguishable in principle from a direct sale of justice.”

Nevertheless, plea bargaining continued to operate in the shadows of the criminal justice system for at least two reasons.  First, plea bargaining was used as a tool of corruption in the early twentieth century as prosecutors, judges, and defense attorneys used bribes to secure “bargains” containing reduced sentences.  Second, the United States began to create a myriad of new criminal laws during this period.  In the face of swelling criminal dockets, particularly after the ushering in of the era of prohibition, the lower courts felt they had no recourse but to use bargained justice to clear their case-loads.

Despite the continued growth of plea bargaining throughout the early twentieth century, the Supreme Court never explicitly ruled that it was a permissible form of justice during this period.  In fact, in the few examples where the notion of guilty pleas and bargains was considered during this period, the Supreme Court indicated that it was uncomfortable with the concepts.  In such rulings, the Court made clear that while voluntary guilty pleas were permissible, it did not favor deals that coerced defendants into admitting guilt through threats of punishment or promises of leniency.

As an example, the case of Walker v. Johnston made its way to the Supreme Court in 1941.  In this case, the prosecution offered the defendant the promise of leniency if he confessed in court, but threatened to seek a more severe punishment if the defendant proceeded to trial and lost.  The Supreme Court, relying on the law of confession and the requirement that confessions, including in court confessions or guilty pleas, be voluntary, found the alleged behavior by the prosecutor impermissible.  According to the Court, where the defendant was coerced into pleading guilty, he was deprived of a constitutional right.

In 1962, the Supreme Court addressed plea bargaining once again in Machirboda v. United States.  In this case, the Court addressed the appropriateness of a United States Attorney offering a defendant lenient treatment in return for pleading guilty and also telling the defendant that if he proceeded to trial the government would consider charging him with other crimes to which he might be linked.  The Supreme Court concluded that if the allegations were true, this finding would support vacating the sentence because it would indicate that the plea was not voluntary as required by the law.  According to the Court, “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void….”

While the appellate courts had consistently rejected the notion of bargained justice up until this point, plea bargains were still being made in the trenches of the criminal justice system.  Finally, in 1970, a case made its way to the Supreme Court that squarely placed before the Court the issue of whether plea bargaining should be permitted under the Constitution.  The case was United States v. Brady and the matter involved a defendant who pleaded guilty because the statute under which he was charged permitted the death penalty only if recommended by a jury.  By pleading guilty, he avoided that possibility and assured that he would live.  The incentives to plead were so large, he later argued, that his plea was involuntary.  Many believed the Court would use this case as an opportunity to put a stop to plea bargaining, particularly given the earlier case law.  To the surprise of many, however, the Court determined that the defendant’s plea was voluntary and went on to state that offers of leniency and threats of punishment are permissible, as long as they do not overbear the will of the defendant.

But why did the Court rule this way given the strong language that had previously been used to strike down such deals? 

First, reality may have caught up with the Justices and they may have simply waited too long to act.  While they sat on the sidelines, plea bargaining had risen in the shadows and come to dominate the system.  By 1970, almost 90% of cases in the United States were being resolved through pleas of guilt, despite the earlier precedent and warnings.  With a system straining even to take 10% of cases to trial in 1970, the Justices certainly realized that striking down the use of plea bargaining would likely mean the collapse of the entire criminal justice system.  

Second, while overcriminalization had started us down the path of needing plea bargaining to deal with excessive criminal dockets, the Warren Court’s Due Process Revolution in the 1960’s had only made matters worse.  The new rights offered to defendants during this period resulted in an even greater need to plea bargain as trials grew more complex, costly, and lengthy.  In one study, it was demonstrated that the length of criminal trials doubled from the beginning to the end of this decade.  It is also likely that the Supreme Court hoped to ensure through its Brady decision that defendants with “real disputes,” by which they meant those for whom conviction was not almost assured, would be able to better use the rights handed down by the Warren Court in a system that used plea bargaining to clear dockets and free up resources.  

It is important to note that while the Supreme Court approved of plea bargaining in the Brady decision, it did not open the floodgates to bargained justice without any limitations.  Rather, the Court included important language in the case regarding how far prosecutors may venture in attempting to induce defendants to plead guilty.  I call this limitation the Brady Safety-Valve and it relates directly to the earlier case law we’ve examined and the requirement that plea bargains continue to be “voluntary,” even in the post-Brady world.

In the concluding paragraphs of the decision, the Brady Court discussed its vision for the use of plea bargaining in the criminal system.  The Court only wanted plea bargaining as a tool for use in cases where the evidence was overwhelming and where the defendant, unlikely to succeed at trial, might benefit from the opportunity to bargain for a reduced sentence.  The compromise of permitting plea bargaining in these cases, according to the court, would assist jurisdictions in saving resources for “cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof.”  Further, because only defendants against whom there was significant evidence of guilt would be offered deals, there would be no need to offer huge incentives.  As such, the court made clear that plea bargaining had to be voluntary and, therefore, prosecutors could not offer incentives so coercive as to overbear the defendant’s ability to act freely and decide whether to accept or reject the offer.  This limitation on the amount of pressure that may be asserted on defendants is the safety-valve.

But how do we know when the Brady safety-valve has failed?  How do we know when prosecutors are offering incentives that are too great?  The Brady Court included a litmus test for determining just this question; for determining if the safety-valve had failed.  In reaching its decision to allow plea bargaining, the Supreme Court in Brady noted that it did not believe that innocents would engage in bargained justice.  Rather, the Court believed that innocents would proceed to trial in an effort to vindicate themselves.  The Court noted, however, that if it was wrong, it would have serious doubts about the Constitutionality of plea bargaining.  Specifically, the Court stated, “we would have serious doubts about this case if the encouragements of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”

So, in recalling the three stories of plea bargaining I began my discussion with today, let me ask a question relevant to our analysis of plea bargaining.  Does plea bargaining have an innocence problem?  Are offers being made that are so enticing that they do substantially increase the likelihood an innocent will falsely condemn himself or herself?  I think the answer is yes.

We know that some innocents have pleaded guilty in the past.  For example, in 1989, Ada JoAnn Taylor was accused with five others of killing a sixty-eight year old woman in Beatrice, Nebraska.  She and four others pleaded guilty to the offense after being offered steep sentencing discounts in return.  After serving 19 years in prison, DNA evidence demonstrated that Taylor and the others were all innocent. 

In 2012, the case of Brian Banks made national headlines in the United States.  Banks, a star high school football player on his way to a professional career, was accused of rape and kidnapping by an acquaintance.  After his arrest, prosecutors offered Banks 10 minutes to decide whether to take a deal requiring him to serve 3 years in prison or proceed to trial where he would receive a sentence of 41 years to life, if convicted.  Banks took the deal, but continued to profess his innocence.  After his release, Banks was “Facebooked” by the alleged victim with a request that they meet.  Banks agreed and videotaped their conversation at an investigator’s office.  During the interview, the alleged victim admitted that she had made up the incident.  In 2012, based on the confession, Banks was exonerated.

Last year, the Houston Chronicle ran a story regarding the growth in the numbers of exoneration cases involving defendants who pleaded guilty.  In particular, the Chronicle discussed Corey Anthony Love, who pleaded guilty to a drug charge.  Love was later exonerated after the crime lab finally examined the evidence in his case and concluded that the substance he possessed during his arrest was not even narcotics.  None of these stories, of course, should be surprising given what we know about the trial penalty’s role in plea bargaining. 

Though these and other anecdotes illustrate that some innocent people have pleaded guilty in the past, it is very hard to ascertain exactly how many innocent people might have done something similar to Stewart, Taylor, Banks, and Love.  And this uncertainty has led to much debate.  Some have argued that plea bargaining has an innocence problem and such proponents have relied mainly on singular examples like the Taylor and Banks cases to support their concerns.  Others have argued that these examples and others like them are rare outliers, and, just as the Supreme stated in 1970 in the Brady decision, in almost all cases innocent defendants will not plead guilty.

Several efforts have been made by academics to add insight to this debate.  One of the most significant efforts to date has revolved around the analysis of DNA exoneration data to determine how many innocent defendants have pleaded guilty in those situations.  In 2005, for example, Professor Samuel Gross examined 340 exonerations due to newly tested DNA evidence and found that 20 had pleaded guilty.  While such DNA evidence offers us a glimpse at plea bargaining’s innocence problem, it cannot definitively resolve the debate because exoneration data likely underestimates the true extent of the issue.  Criminology studies over the years have also attempted to add insight into the debate by estimating the number of individuals in prison who might be innocent and yet pleaded guilty.  Using varied methodological approaches, these studies have concluded that between 2 percent and 8 percent of the United States’ prison system is made up of such innocents.  With the world’s largest prison system, housing over two million inmates, these estimates are extremely troubling.

Dr. Vanessa Edkins and I decided to add a new perspective and unique data to this discussion by conducting the first major psychological study of plea bargaining and innocence in the United States – a study that has now been successfully replicated at least four times by others for validation.  In 2012, Dr. Edkins and I sought to examine the caveat regarding innocence in Brady from a different perspective.  Instead of trying to ascertain exactly how many innocent defendants have pleaded guilty, we wanted to explore a different and, perhaps, more fundamental question.  We sought to examine whether the Supreme Court’s initial assumption that innocent people do not plead guilty in significant numbers was flawed.  And to do this, we asked how likely it is that an innocent person would plead guilty to a crime he or she did not commit.

During 2011 and 2012, therefore, Dr. Edkins and I conducted a psychological study in which we placed students in a situation where they were accused of cheating.  Because we had placed a confederate in the room with each participant, we knew definitively which of the participants had actually cheated and which had not.  All the students, regardless of factual guilt or innocence, were then offered a plea deal.  In response, 89% of the guilty students took the offer.  With regard to the innocent students, 56% were willing to falsely confess to an offense they had not committed in return for the benefits of the bargain.  For the majority of innocent students, accepting the deal simply made more sense.  The same decision was made by Stewart, Taylor, Banks, Love, and countless other defendants in the actual criminal justice system. 

Let me further put these results into context.  Diagnosticity is a calculation that ascertains whether a process, here plea bargaining, is efficient at identifying truthful pleas by guilty defendants or inefficient because it also inadvertently leads to false pleas by the innocent.  A study like this was once run for police interrogations.  It found that if police used no tactics, the diagnosticity of the interrogation process was 7.67.  As the police used multiple tactics to manipulate the suspect, the diagnosticity of the interrogations dropped to 2.02, meaning almost half of the confessions were now false confessions.  The diagnosticity of plea bargaining in our study was 1.58.

It is important to note that this study is not meant to imply that prosecutors in the United States are doing something improper by offering plea bargains to defendants.  In almost every case where the individual is later determined to be innocent, the prosecution truly believed based on the available evidence that he or she was guilty.  They were simply mistaken.  In an Institute of Justice study in 1999, which reviewed 21,000 cases in which laboratories compared DNA of the suspect with DNA from the crime scene, the researchers found that the DNA tests exonerated the prime suspect 23% of the time.  Trials were meant to serve as an important check on the system to protect the innocent from mistakes and misconduct.  Today, however, with so few trials occurring, this important piece of the adversarial system is slowly vanishing. 

What the results of our plea bargaining study tell us is that the Supreme Court was wrong in 1970 when it said that innocent people will not plead guilty.  In fact, this study indicates that defendant’s might be much more risk averse than previously believed and bargained justice may have the potential to capture far more innocent defendants than predicted.  While these results do not mean that the fundamental idea of plea bargaining is unconstitutional, the data does suggest that the time has come to reevaluate the types of incentives being offered to plead guilty and the protections available to those who give up their right to trial.  We need to take a fresh look at the system that has come to dominate criminal justice in America.

And this brings me to Japan.  Japan finds itself today in the unique position of starting down a road the United States has been on for over a century.  With this unique position comes the opportunity to learn from our past.

The Japanese plea bargaining reforms currently being considered would focus on white collar suspects and defendants who cooperate with authorities, provide relevant information, and, if necessary, testify against others at trial.  The suspect or defendant would be required to have counsel during this process.  In return for the information and testimony, the prosecution would be permitted to either drop the charges, similar to charge bargaining in the United States, or seek a more lenient punishment, similar to sentence bargaining in the United States.  The Japanese proposal also contains criminal punishment for those who offer false information in return for the plea deal. 

I would like to note at this point that I am not an expert on Japanese law or police practices.  Despite my lack of knowledge about these specific topics, I believe my expertise regarding plea bargaining allows me to offer some observations about the proposed plea bargaining reforms. 

First, I applaud Japan’s efforts to examine its criminal justice system and consider reforms that might improve its efficiency and effectiveness, while also increasing the protections afforded suspects and defendants.  This is particularly important given concerns regarding Japan’s police interrogation system.  Under the current process, suspects in Japan may be detained up to twenty-three days, during which they are subjected to various interrogation strategies in an effort to elicit a confession.  In return for these confessions, it is reported that prosecutors often reward the suspect with a lighter sentence.  In many ways, this sounds like a form of unregulated and informal plea bargaining, and this system has created its own innocence problem. 

In 1966, two children and their parents were murdered in their home.  Iwao Hakamada, a former professional boxer, was arrested and charged with the gruesome crime.  He was interrogated for twenty-three days without the presence of a lawyer.  As might be expected, he eventually confessed to a crime he did not commit.  Forty-eight years later, Hakamada was released from prison after DNA evidence demonstrated his blood was not a match for evidence in the case.  A more recent example of the innocence issue experienced in Japan is the case of a nineteen-year-old student who falsely confessed to making cyber threats in 2012.  The student’s father later said that his son had confessed, in part, because of concern for his family.  His father also said, “It is too much to bear when I think about what went through his mind… how he was longing for evidence of his innocence but he had to give up….  The saddest thing is I as a parent doubted his innocence.”  Perhaps the plea bargaining reforms proposed in Japan will assist in correcting these issues.  In creating such a system, however, careful consideration must be given to its structure and protections to ensure the innocence issue in the police interrogation setting is not simply replaced with an innocence issue in the plea bargaining context.

Second, as Japan considers what protections to afford defendants as part of a formal plea bargaining system, let me point out what is similar about the United States plea bargaining system as compared to what is proposed in Japan.  The United States system allows prosecutors to offer incentives for defendants to cooperate and testify against others, just as is proposed in Japan.  The United States system requires the presence of counsel in most situations and emphasizes the importance of counsel during plea negotiations, just as is proposed in Japan.  The United States system creates liability for defendants who provide false information as part of a plea deal, including revocation of the plea agreement and the potential for criminal charges under perjury, false statements, and obstruction of justice statutes.  Similar punishments are being considered in Japan for those who provide false information as part of a plea agreement.  I mention these similarities to emphasize that while these are important protections for all defendants in a plea bargaining system, these initiatives alone have not been successful in eliminating the innocence problem in the United States.  If Japan seeks to create a better system of pleas, consideration must be given to additional safeguards and protections.

Third, there are lessons from the United States that can help inform a discussion of what additional safeguards and protections might be afforded to defendants in Japan’s new plea bargaining system.  While the interests of time prevent a detailed discussion of all potential considerations, I feel it is important to mention at least a few of them today.  

To begin, Japan should consider the role of pre-trial detention, both with respect to police interrogations and potential plea offers in the future.  Pre-trial detention is an issue that is garnering much attention in the United States and is a procedure that has strong links to the innocence problem.  These links were evident in the Erma Faye Stewart case and are present in many other innocence cases as well. 

Japan should also remember the important role counsel plays in the criminal justice system as it considers when counsel will become available to suspects and what role counsel will play in the process.  Counsel can inform the defendant regarding his or her rights and options, analyze the available evidence, and ensure that the negotiations are undertaken in a fair and reasoned manner.  Counsel can also play a vital role in ensuring false statements are not knowingly introduced to the court as a result of the attorney’s duty of candor to the tribunal.  In the United States, for instance, counsel is required to take reasonable remedial actions if he or she knows a client has provided false information to the court.  This duty of candor will not prevent all false statements, nor will it necessarily prevent innocents from falsely pleading guilty, but the presence of counsel provides many advantages for the system and increases the actual and perceived fairness of the process.

Another issue for consideration in Japan is whether evidence in the possession of the government should be provided to defendants before the entry of a plea of guilty.  If so, should both inculpatory and exculpatory evidence be provided?  In the United States, there has been much debate about disclosing exculpatory evidence to defendants before they decide whether to plead guilty.  This discussion has included reflection regarding the link between failing to disclose such information and innocent defendants pleading guilty.

Finally, consideration should be given to imposing some limitation on the type and size of incentives that can be offered in return for pleading guilty.  Is it necessary to offer extremely large sentencing reductions in return for pleas of guilt?  Does the system benefit from such offers or is the system corrupted by incentives that are so large the innocent will plead alongside the guilty?

I hope Japan will consider these and the many other issues that arise from implementing a plea bargaining system.  In addition to discussing these important and complex topics further during our question and answer session, I would also be honored to elaborate on these considerations further in the future, including with members of the government and policy-makers responsible for implementing the proposed reforms.

In closing, let me bring us back once more to the issue of innocence.  As reforms are undertaken in Japan to address concerns regarding interrogations and increase the protections afforded to defendants, I urge that careful deliberation be undertaken when determining the future course.  As my research reveals, plea bargaining has its own innocence problem and little can be achieved by replacing one flawed system with another.  We must continue working to understand plea bargaining and how those faced with such a decision respond to the incentives.  To this end, I am honored to report that Dr. Ibusuki and Dr. Kosuke Wakabayashi, along with myself, Dr. Edkins, and Prof. Andrew Pardieck, are undertaking a study regarding plea bargaining that will be run simultaneously in the United States and Japan.  It is our hope that this effort will provide further data regarding plea bargaining and the manner in which it can be used most efficiently and effectively in both of our countries.  It is also our hope that this research will further our understanding of the innocence issue and inform future discussion of how plea bargaining should function as a part of the criminal justice system.

I thank you for inviting me to join you today and share these thoughts.  I believe that through such exchanges, we can better understand the way criminal justice operates in the world, in our countries, and for each individual defendant.  At a fundamental level, criminal justice systems are about seeking truth and obtaining reconciliation for wrongs.  To the extent a part of those systems is obstructing this mission, it is our duty to work to understand and correct such an impediment.  We are on that journey today, and I look forward to a future where the innocence problem is a relic of the past.

No comments: