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Home > LAWREVS > WILJ > Vol. 20 > No. 3 (2011)

 

Washington International Law Journal

Abstract

Plea bargaining, the practice that permits the prosecution and defense to negotiate reduced charges or a lighter sentence in exchange for the defendant’s guilty plea, is a bedrock component of the criminal justice system in many nations. The Japanese legal community, however, has resisted introducing plea bargaining into Japan’s legal system. From 2001 to 2004, the Japanese legislature passed over twenty reform laws to prepare the country’s criminal justice system for the demands of the twenty-first century, but provisions for plea bargaining were conspicuously absent from the reform package. This is largely because the Japanese legal community views plea bargaining as antithetical to the Japanese justice system’s core values: obtaining the truth, encouraging the defendant’s remorse and rehabilitation, and protecting victims’ interests. Resistance to plea bargaining in Japan takes on heightened significance in light of increasing pressures on the nation’s legal system to expedite criminal proceedings. Currently, there are “tacit” informal types of plea bargaining that Japanese prosecutors use to simplify trial procedures. This comment argues that tacit bargaining is an inadequate substitute for formal institutionalized plea bargaining. While tacit bargaining may relieve burdens on congested Japanese criminal courts, tacit bargains are unenforceable, leaving the defendant without a remedy in the event the prosecution breaches the informal agreement. The use of tacit bargaining is also concerning in regards to defendants’ rights because it sustains coercive aspects of the Japanese justice system and leads to uninformed, involuntary confessions. In order to address Japan’s cultural aversions to plea bargaining, this comment examines the use of plea bargaining in international criminal tribunals. These tribunals can serve as models for Japan because they have demonstrated that plea bargaining can aid rather than undermine the goals of the Japanese justice system.

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