New Article re Carlos Ghosn Case Includes Discussion of Plea Bargaining

The Asia-Pacific Journal has published a piece discussing the Carlos Ghosn case. While the entire investigation, prosecution, and flight from Japanese authorities is interesting, this particular piece also contains discussion of plea bargaining. As noted in the article, the prosecution of Ghosn stems, at least in part, from two Nissan employees reporting his alleged misconduct in hopes of receiving leniency under Japan's relatively new plea bargaining law. The piece goes on to compare criminal laws and procedures in Japan and the United States, including the use of pressure to induce admissions. From the article:

Another striking similarity between Japan and the U.S. concerns the use of pressure to produce admissions of guilt. In both countries, protections for defendants on trial are relatively robust, but in the pretrial process much pressure is brought to bear on suspects to help the state obtain convictions...

Interrogation in Japan has been the subject of much good research in English (Foote, 1991; Miyazawa, 1992; Foote, 1993; Takano, 2019). Recent reforms require the electronic recording of interrogations in a limited range of cases, but even in those cases “the problem of the overborne will” that has long plagued criminal justice in Japan has not been eliminated (Johnson, 2002, ch.8). In the U.S., pressure is routinely employed in plea bargaining, by threatening to impose a large “trial tax” on defendants who have the temerity to exercise their right to trial – and who then get convicted (Langbein, 1978; Fisher, 2003; Burns, 2009; Lynch, 2016). Many commentators either do not know about the size of trial penalties or deny their coercive effects, but some observers are clear about this American problem (Rakoff, 2014). As former Chief Judge William G. Young of the Federal District Court of Massachusetts put it in U.S. v Richard Green et al (2004): 

“Evidence of sentencing disparity [trial penalty] visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that disparity has widened to an incredible 500 percent [this means the punishment after conviction at trial is five times the punishment prosecutors offered in plea bargaining]…Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people—punish them severely—simply for going to trial. It is the sheerest sophistry to pretend otherwise.” 

In sum, both Japan and the U.S. rely heavily on admissions of guilt, and the criminal justice systems in both countries often use high-pressure tactics to achieve that end. Both systems also fail to provide adequate judicial oversight of the processes that are used to pressure defendants into helping the state convict (Foote, 2010; Lynch, 2016). But there is an interesting difference too. While many international legal norms have been instituted to govern the process of criminal interrogation, human rights instruments have little to say about the high-pressure practices that make plea bargaining problematic in the U.S. and in other countries where “trial waiver systems” are expanding (Fair Trials, 2016, pp. 60-69). This gap in international norms may help explain why so much criticism was directed at Ghosn’s interrogations while the routine American practice of imposing pressure through plea bargaining seldom gets recognized.

You can read the entire article here.