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.
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.
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